In a recent case Northern Irish Waste Services Ltd v Northern Ireland Water Ltd & Ors (2013), the Court in Northern Ireland heard a claim by Irish Waste Services Ltd, a company disappointed in its bid to be awarded a contract for sludge management services by Northern Ireland Water, a utility for the purposes of the Utilities Contracts Regulations 2006.
Among other issues, Irish Waste Services argued that the award criteria were unlawful because they contained elements which properly should have been addressed as selection criteria rather than award criteria. In making this argument, it relied on the EU Case C-532/06 Lianakis (which was later applied in domestic cases such as Lettings International v London Borough of Newham (2008)). The Lianakis case had held that the drafting of the applicable EU Directive 92/50 required a clear distinction to be maintained between (1) criteria which are aimed at identifying the tender that is the most economically advantageous (ie, the award criteria) and, (2) those criteria 'instead essentially linked to the evaluation of the tenderer’s ability to perform the contract in question' (ie, selection criteria).
The claimant bidder in this case noted that many of the questions asked at award stage were around elements such as bidder experience, equipment and workforce, and argued that these were actually selection criteria rather than award criteria and that the procurement had therefore fallen foul of the principles in Lianakis.
The court took a dim view of this argument, and, on the basis that the wording in the relevant article of the Utilities Directive was significantly different to that to which the Lianakis judgment related, decided that there was no obligation to follow the ruling in Lianakis. Indeed, the judge’s comments echoed what many critics of Lianakis have also said in recent years, namely, that surely one of the best ways to evaluate the likely quality of the bidder’s performance, if awarded the contract, is to look at the quality of its past performance of other contracts.
The court also noted that, in any event, these criteria asked about the resources and manpower that would be used to perform the contract in question, rather than generally, which seems to open the door to the argument that it may well be lawful to evaluate matters such as resources at award stage even in the public procurement context, provided the contracting authority shows that these are 'properly linked to the subject matter of the contract' in particular rather than in general. We have already seen, in the public procurement context, some signs of a willingness of the court to take a common sense approach to the application of Lianakis; see, for example, the 2010 claim by European Dynamics following its unsuccessful bid in procurements of computer services run by the Publications Office of the EU (Case T-387/08) and by the European Monitoring Centre for Drugs and Drug Addiction (Case T-63/06). In these cases, the European court held that the contracting authorities were entitled to evaluate experience and qualifications at award stage provided this was done in a comparative manner, and also that a single piece of information submitted by a bidder could in fact be used in different ways at each of the selection and award stages.