The Legal Services Commission (“LSC”) issued a tender for contracts in a number of areas of law, including public law and mental health. It was claimed that the LSC acted unlawfully by failing to take adequate steps to verify that those who had been awarded contracts satisfied all the criteria laid down in the tender for public law and mental health.
The English High Court applying EVN v Austria (Case C-448/01), upheld the claim stating that if the public authority is (a) unable to verify the criteria or (b) omits to do so, an infringement of the principle of equality and a breach of procurement law will have occurred.
This is a significant decision as it suggests that public bodies may, in certain cases, have to take positive steps to verify aspects of tenders submitted and also makes clear that the matter being evaluated must be capable of being verified. It may be of particular interest in the context of the new regime provided for under Circular 10/10 where candidates declare, in the first instance, that they meet the pre-qualification requirements instead of providing substantive responses for evaluation. It would be prudent in light of this case to subsequently obtain evidence from the successful candidates which substantiates any declaration and, if this is not provided, to reject the tenderer accordingly. It may also have wider application in other instances.