When the question “What have the Romans ever done for us?” was posed by the People’s Front of Judea in Monty Python’s Life of Brian there quickly followed a long list of benefits ranging from wine to public order.
And so it might be with Greek IT supplier European Dynamics. Perhaps not as important as a hot water system or public health, European Dynamics' tenacious approach to public procurement litigation over the years does, however, read like a top 10 of procurement basics. So here’s what I think European Dynamics have done for us:
- European Dynamics frequently bid as part of a consortium. The General Court has confirmed that a claim from a single member of a multi-party consortium is admissible as each member is an addressee of the contested decision.
- If the tender documentation specifies a particular requirement for bids then the bid can only be lawfully considered if that requirement is met. European Dynamics have been on both sides of decisions on this. In one case their bid failed because they could not obtain a permit that was a specific requirement of the tender, but they also successfully challenged where a winning bidder submitted a bid by post but could not prove that it had met the requirements of the tender to send the documentation before a particular date or by registered post. Where the winning bidder could not prove that it had posted its bid in accordance with the tender requirements, its bid had to be discounted.
- Qualifying criteria must not be confused with selection criteria and used as part of the assessment of the bid. In December 2011, the General Court upheld European Dynamics’ complaint against the European Commission that, amongst other things, it had evaluated the tender by reference to a summary of services and managed websites. This was deemed to amount to an evaluation of the tenderers’ experience rather than an evaluation of the tenders solely on the basis of the quality of the tender itself. The court added that a criterion based on the tenderers’ experience relates to technical and professional capacity to perform the contract and cannot therefore be aimed at identifying the contract offering the best value for money.
- Provided qualifying criteria are not mixed up with selection criteria then contracting authorities have a broad discretion with regard to the factors to be taken into account for the purposes of taking a decision. European Dynamics have challenged this time and again and have rarely been successful. As recently as April 2012, the General Court confirmed that a contracting authority has the power to choose the selection criteria which it considers best suited to the purpose of the call for tenders provided that the chosen criteria are clear, proportionate to the purpose of the call for tenders, and non discriminatory. Similarly, in March 2010 the General Court found that that contracting authorities were free to choose the criteria on which they proposed to base their award of the contract provided those criteria could be applied objectively and uniformly in order to compare tenders.
- European Dynamics have challenged several times on the basis that incumbents have an unfair advantage. In September 2011, the General Court commented that to the extent that an incumbent contract may have an advantage over other tenderers this was in no way a consequence of any conduct on the part of the contracting authority. Short of excluding bids from incumbents it is almost inevitable that some form of advantage would be conferred on the incumbent because they have been performing the contract up to that point. That did not mean that it could be inferred from the results of a tendering procedure that there had been a breach of the principle of equal treatment. Some further evidence of favouring an incumbent would have to be provided.
- A contracting authority may seek clarification of a bid, and indeed should do so if there is a “particularly obvious” material error in the bid. Where the tender is ambiguous there is no obligation to seek clarification. In any event, an ambiguity can only be clarified where it is easy and simple to remove the ambiguity. Any further than that and there is a risk of straying into alteration of bids.
- An outright win for European Dynamics on this one as the General Court annulled the decision of the European Investment Bank where, amongst other things, the successful bidder had been allowed to alter its bid after evaluation. Following evaluation the winning bid was judged the costliest and so a further meeting with that bidder alone was held, during which the successful bidder was allowed to make alterations to reduce the cost. Following that meeting the contract was entered into. Allowing one bidder to alter its bid in this way was a breach of the principles of equal treatment, non discrimination and transparency.
- Another common complaint by European Dynamics is that it had not been given sufficient information about its own or the winning bid to enable it to challenge a decision. In July 2007 the General Court found that the European Commission had given insufficient information to allow European Dynamics to understand the characteristics and advantages of the successful tender and so to defend its rights. This was following a failure to give any comment on the successful tenderer’s bid when comparative scores were provided. As the successful tenderer had offered a higher price the assessment of the quality of the bid as regards the qualitative award criteria had been the deciding fact and that made the provision of the information all the more necessary.
- It can be difficult to challenge a contracting authority’s assessment of a bid. European Dynamics have repeatedly tried to do this and rarely succeeded. Typical of the usual response of the General Court is that made in September 2011 when it held that contracting authorities have a broad discretion with regard to the factors to be taken into account for the purposes of taking a decision awarding a contract and that review by the court must be limited to checking that the rules governing the procedure and statement of reasons have been complied with, that the facts found are correct and that there has been no manifest error of assessment or misuse of powers.
- Finally, although it is no longer necessary for an unsuccessful bidder to seek an injunction to stop a contracting authority from entering into a contract, English courts still look at what are known as ‘American Cyanamid’ principles in deciding whether to lift an automatic suspension. In one of its forays into the English court system European Dynamics found that it can be difficult to obtain an injunction (and now to prevent the lifting of the automatic suspension) because the court will (a) usually consider that damages are an adequate remedy and (b) the balance of convenience lies in securing the service that has been tendered for.
A study in European Dynamics’ course through the courts over the last few years is a study in the basics of procurement law generally. Like the People’s Front of Judea, practitioners might have cause to be more grateful to European Dynamics than they ever thought.