Willmott Dixon Partnership Ltd v London Borough of Hammersmith and Fulham [9 October 2014] is a useful reminder of a number of general principles which are relevant to procurement cases. In that case the Council awarded its repairs and maintenance services contract to Mitie. Willmott Dixon, the incumbent contractor, complained. It raised the usual arguments, such as:
- the Council considered factors which were not aimed at identifying the most economically advantageous tender;
- the Council took into account criteria which were not specified to the bidders;
- the Council failed to score the submission correctly; and
- the Council did not treat Willmott Dixon in an equal and non-discriminatory way.
The judge reviewed the current procurement cases and decided that the procurement Regulations required the Council to:
- carry out the procurement free of any manifest error;
- conduct an objective evaluation of tenders based on the criteria and sub-criteria which had been disclosed to the bidders;
- ensure that the award criteria must not include criteria linked to a bidder’s ability to perform the contract; and
- evaluate the bids fairly and objectively and without either actual or apparent bias.
The judge also confirmed that when reviewing an award, the court’s function is limited: it should review the original decision to determine whether there has been a manifest error and/or whether the process was unfair. The court is not required to carry out a full review or substitute its scores. The judge also confirmed that the presence of a ‘manifest error’ does not mean that the process is flawed. Instead the court has to determine whether the combination of manifest errors would have led to a different result.
On the facts, the judge decided that the Council had not breached the procurement Regulations and he rejected Willmott Dixon’s claim. As well as providing a summary of the general principles which apply to procurement law, the case also includes helpful examples of internal emails and discussions which can create confusion and which should be avoided, if possible.