Repeat EU procurement challenger finally wins: important guidance on when award reasoning is inadequate
24 December 2013
On 13 December 2013, the EU General Court made an important ruling on what constitutes adequate feedback to bidders in tender situations. This is significant because it reinforces the responsibility of the Commission (and other contracting authorities) to make fair, objective and reasoned assessments when evaluating bids, as they will otherwise be open to challenge.
The Court found that the European Commission had failed to give European Dynamics adequate reasons for its decision not to award a contract for support services for IT infrastructure and e-government services in Albania. The decision sets some important precedents for future procurements, whether under the EU procurement rules or other, similar procedures (eg as here, the Financial Regulation 1605/2002 and its implementing regulation).
In particular, the General Court's ruling emphasises that the provision of a simple scoring table, even where given to all bidders on an equal basis, will not in itself be deemed adequate reasons. Rather, the feedback needs to explain how and why, objectively (and in accordance with the applicable criteria for evaluation) the relevant tenderer received the score it was awarded.
Qualitative evaluation: characteristics and relative advantages
European Dynamics has been one of the most active litigators before the European Courts, having brought claims for a wide variety of alleged breaches of the EU procurement rules and other tendering procedures. This case is a relatively rare success for them, but it comes as an important reminder to contracting authorities and tenderers alike of the participants' rights to receive information on award.
In this case, the information provided by the Commission did not enable European Dynamics to understand what objective characteristics of the successful tenderer's bid warranted it receiving its superior, winning score.
As always, this was especially important in respect of the qualitative element of the evaluation, in which the Commission had a margin of discretion in awarding scores. Article 100(2) of the Financial Regulation requires, like the Public Contracts Regulations 2006 (as amended), that within 15 days of a request the Commission provide unsuccessful tenderers with details of the characteristics and relative advantages of the successful tenderer. The General Court decided in this case that the Commission had failed to fulfil this obligation, despite repeated requests from European Dynamics.
The scoring table provided to European Dynamics did not provide a justification for the scores awarded, precluding a meaningful assessment by European Dynamics of the basis in fact and law on which its tender was ultimately rejected. Any comments accompanying its feedback were found to be vague.
The other documents provided in response to requests by European Dynamics, including the report produced by the evaluation committee, evaluation meeting attendance records, minutes and comments on each bid, were not sufficiently helpful either, especially since the Commission had deleted or redacted certain information from these materials in the interests of protecting privacy and integrity of the individual, pursuant to Article 4(1)(b) of Regulation 1049/2001, which regulates public access to Commission documents.
For more information please contact Paul Henty, Partner