The recent case of AJ and Another v Calderdale Council and Calderdale PCT was about the impartiality (or otherwise) of evaluation teams. The contracting authority in this case had allowed service users and carers to be members of evaluation panels (in relation to procurement of services they received). The Council then amended the policy, fearing that to allow service users and carers to be members of the evaluation panel would be to put the Council in breach of its obligations to treat bidders equally, transparently, and in a non-discriminatory way. The Council argued that these obligations could best be met by having professional evaluation panels which were free from the risk of service users expressing subjective views about certain providers that could skew the process.
One of the service users brought a judicial review claim challenging this decision to exclude service users from the evaluation process. The Court agreed with her, saying that there was nothing in the Procurement Regulations which automatically led to the conclusion that the presence of service users or carers on the panel would result in a breach of procurement law, and so risk a procurement law challenge. Because the Council had wrongly applied the law, its decision was open to judicial review.
This case emphasises the importance of having a very clear rationale for decisions as to the inclusion/exclusion of evaluation team members and ensuring that those decisions can be justified as a matter of law. The cautious approach may not necessarily be the best approach, if it is based on a misreading of the Regulations.