Contracting authorities and bidders should take note of the following procurement law points brought out in the recent cases of Hastings & Co (Insolvency) Limited v The Accountant in Bankruptcy and Healthcare at Home Limited v The Common Services Agency:
- Notification before action – In Hastings, the judgment notes that the notification of intent to bring proceedings should contain the substantive points on which the decision to award is challenged. In this case, legal arguments raised during proceedings which had not been included in the notification letter were struck out by the court.
- Time limits on action – If a would-be tenderer has problems with the clarity of Invitation to Tender (ITT) documents, these problems should be raised at the time of reading the ITT and not held over to await feedback in any debriefing document. This issue only played a minor role in Hastings but it attracted comment from the court and the lesson is worth noting.
- ITT Clarity/Transparency – Healthcare at Home established that "the legal test applied by the Scottish Courts on clarity is whether the hypothetical, reasonably well-informed and normally diligent tenderer should be able to see what matters require answers from the tender criteria".
- Providing a summary of bids' "relative characteristics and advantages" – In Hastings, the court saw no legal issue with information taking the form of comments from individual scorers.
- Approach to "balance of convenience" arguments – Again the Scottish Courts reported in favour of lifting the suspension (see our previous e-updates on Clinical Solutions and Amey). The "weakness" of the pursuer's case in Hastings was a considerable factor. Challenging bidders may wish to note that the Court took into account public policy considerations around "savings".
- SMEs/Social Considerations – Hastings & Co sought to argue that the structure of the procurement discriminated against SMEs. This argument was rejected by the Court. Contracting authorities (who include social considerations in procurements and are already aware of the need for transparency, proportionality, objectivity and a link to the subject matter of the contract) may still wish to take note of the Court's "puzzlement as to the relevance to the framework agreement of one scorer's favourable comment on a tenderer's offer to provide team-building charity events".