The Supreme Court issued its judgement yesterday in the Healthcare at Home case.
The judgement takes a pleasantly entertaining canter through use of the hypothetical "reasonable man" testacross a number of areas of law before getting to the specific procurement law test which attaches towhether or not award criteria have been used and applied in compliance with obligations of transparency.
The relevant test, established by case law including the case subject to appeal (for more on the relevant background details see MacRoberts' e-updates dated 18th May 2012 and 22nd April 2013), is whether the award criteria allowed for all "reasonably well-informed and normally diligent tenderers" (RWIND tenderers) to interpret them in the same way.
The appeal by Healthcare at Home was to the effect that there had been a failure to correctly apply the relevant legal test owing to a failure to examine and establish how the various tenderers had interpreted what had been stated in the issued procurement documentation.
In dismissing the appeal the Supreme Court concluded that the test is an objective one, agreeing in particular with a statement from the appealed judgement:
"…Just like those other juridical creations,…the court decides what that person would think by making its own evaluation against the background circumstances. It does not hear evidence from a person offered up as a candidate for the role of reasonable tenderer. In a disputed case, the court will, no doubt need to have explained to it certain technical terms and will have to be informed of some of the particular circumstances of the terms or industry in question, which should have been known to informed tenderers. However, evidence as to what the tenderers themselves thought the criteria required is, essentially, irrelevant."
This case, for reasons associated with the length of time it has run, has had a role in changing how Scottish procurement cases are dealt with. It is also to be welcomed from the perspectives of common sense and practicality. Any judgement opening the door to a requirement to consider at length various pontifications onmeaning would have been unfortunate. It has also affirmed the eminently preferable acronym-based "RWIND tenderer test".