Lightways (Contractors) Ltd v. North Ayrshire Council [2008] ScotCS CSOH

Regulation 16(20) provides that the contracting authority "shall supply such further information relating to the contract documents as may be reasonably requested by an economic operator". The contract documents are defined in regulation 2 as meaning,

"the invitation to tender for or to negotiate a contract, the descriptive document (if any), the proposed conditions of contract, the specifications or descriptions of the goods, services, work or works required by the contracting authority and of the materials or goods to be used in or for such work or works, and all documents supplementary thereto."

[14] The importance of the principle of equal treatment of tenderers for a public works contract is stressed by the European Court of Justice in the case of SIAC Construction Ltd v County Council of the County of Mayo [2001] 1 ECR 7725. At paragraph 34 it is stated:

"More precisely, tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the adjudicating authority."

(See also Aquatron Marine v Strathclyde Fire Board 2007 CSOH185, Lord Carloway, unreported).

[15] As a preliminary point Mr Bartos submitted that the information sought did not relate to contract documents. It seemed to me that the contention of Mr Johnston that a broad definition of contract documents was the appropriate approach and that it would be relevant to ask questions about employees who might transfer under TUPE and issues in relation to planned maintenance.

[16] It is necessary to look in a little detail at the factual picture which emerges from the averments and the productions. On 13 January 2008, the pursuer sought confirmation from the defender that the current work force who may transfer under TUPE had all the necessary qualifications to work on the contract. Reference was made to a number of specific qualifications and it was assumed that the defender held these records as the current contract required. The response of the defender is found in Contract Bulletin No 3 (production 6/15) where the following appears:

"Q3. Please confirm that staff subject to TUPE transfer have all necessary qualifications to work on this contract.

A3. Information required under TUPE regulations will be provided to tenderers when it becomes available."

It was confirmed at Answer 14 that the TUPE regulations applied to both the current contract and the contract under tender process.

[17] By email sent on 5 February 2008 (production 6/30) the pursuer again raised the issue of the qualifications of the staff to transfer under TUPE and requested timeous supply of this information. In reply the defender stated "the Council shall comply with the requirements of the Statutory Instrument 206/246, as referred to in paragraph 66 of the Tender Document."

[18] In Contract Bulletin No 5 (production 6/17) at Question 5 the issue of the qualifications of the transferring employees was again raised and further specific details identified. The reply was that the defender had passed this request for more detailed information on to the current contractor, who had already provided TUPE information. Any further information that would be released by the current contractor would be issued to all tenderers.

[19] In Contract Bulletin No 6 at Question 7 the issue of the qualifications of the transferring employees was again revisited and the defenders simply referred to earlier answers indicating that it had nothing to add. Questions 9 and 10 referred to the same issue.

[20] In production 6/16, Contract Bulletin No. 4A, at Question 3, the pursuer sought the record of the last three years for planned maintenance completed and to be completed in order that it could supply a more accurate plan for the planned maintenance within the contract. In reply the defender identified the areas in which planned maintenance had been carried out during the previous three years. It went on to state that planned maintenance was proposed for the period 2008/2009 in a number of identified areas. No further detail was given.

[21] In Contract Bulletin No 5 (production 6/17), the pursuer sought further information in relation to planned maintenance. Three questions were raised. First, in order to create a detailed plan for planned maintenance the pursuer sought more information than the names of the towns where maintenance was intended. It requested specific detailed information. It also sought further detail in relation to section 4 of the Bill of Quantities. The pursuer raised a concern that as the incumbent contractor had the information to hand it was possible that the pursuer could be disadvantaged in the award process. In reply, the defender stated that detailed inventory information was contained in the Council's database to which the present and all previous contractors and tenderers had had no access. The defender advised that tenderers should note that the approximate quantities requested were laid down in the Bill of Quantities and these quantities should be used when preparing tender submissions.

[22] In Contract Bulletin No 6 the question of the information in relation to planned maintenance was again raised at Question 1. In reply it was stated that the present contractor did not have access to inventory information and had not been requested to carry out planned works of any nature in the areas listed for 2008/2009. He was therefore no better placed than any other tenderer in preparing a submission. It was added that it was intended to issue a zip copy of the entire Council database inventory to tenderers. However, it was stated that submissions should be made using the data provided with the contract document.

[23] In my opinion, in relation to the question of the qualifications, experience and training of employees, there was some force in the points made by Mr Bartos. I also note that in Contract Bulletin No 5 (production 6/17) at question 5 in relation to the issue of qualification of employees, the defender indicated that they were passing on the request for more detailed information to the current contractor. Furthermore, in relation to the request for further information about planned maintenance it appears that all tenderers were in the same position. It seems to me that on this aspect of the case the position of the pursuer is weak. I have considerable doubt as to whether it has raised a prima facie case of inequality of treatment based on a failure to provide requested information; if it has done so, the case is weak.

The award criteria
[24] Mr Johnston criticised the defender for failing to keep separate the criteria used to sift potential tenderers, the qualitative selection criteria, and the criteria used to make the award, the award criteria.

[25] Mr Johnston drew attention to Production 6/31 which is the guidance issued by the Scottish Government known as the Scottish Public Procurement Toolkit. In section 6, Supplier Selection and PQQS are dealt with. In this section under the heading of "Supplier Appraisal" it is stated that the selection process prior to the issuance of an invitation to tender is a backward looking, not forward looking process. That is, the criteria for selection should concentrate on the general suitability of the candidate supplier for the project, as opposed to the specific means by which the candidate would implement the contract. The intention of this stage of the procurement process is to expedite proceedings by eliminating unsuitable candidate suppliers and thus save time and resources which would be unnecessarily expended on a detailed examination of unrealistic bids.

[26] Section 7 of the toolkit deals with tender issue and analysis. At page 3 of 9 the advice is that where the tenders are to be evaluated on the basis of which is the most economically advantageous, it is necessary that a list of weighted criteria be selected upon which the decision can be based. It is stated:

"The criteria thus identified must relate directly to the subject matter and must provide an economic advantage to the contracting authority. The criteria will relate to key performance requirements and adherence to specification. Each award criterion can be clearly defined, so that there is a common understanding of what it means. Good criteria will insist not only in ensuring that bid responses are clearly addressed to the aspects of the specification that are key areas of concern, but will allow the tendering panel to make a fair and equal comparison of the bids in capability, commercial, technical (including performance) and financial terms. The award criteria must relate to the goods, services or works to be provided and not to the suitability of the supplier. The selection of suppliers is subject to a separate set of rules outlined in the supplier's selection and PPQS items."

Examples are given including price, delivery, aesthetic and functional characteristics, after sales service and technical merit.

[27] Production 6/2 is the Contract Notice. Paragraph III.2 is headed "Conditions for Participation" which were the criteria for the pre-qualifying stage. These were listed as the personal situation of the economic operators, including requirements relating to enrolment on professional or trade registers; their economic and financial capacity; and their technical capacity. Paragraph IV.2 was headed "Award Criteria" and indicated that the basis of the award would be the most economically advantageous tender in terms of the criteria stated in the specifications, in the invitation to tender or to negotiate or in the descriptive document.

[28] Production 6/11 is the pre-qualification questionnaire. It dealt with the following issues: financial status; business probity; service operations; quality; health and safety; equal opportunities; environmental; business continuity; and technical matters.

[29] Before the meeting of the Executive Committee on 1 April there was a report by the Corporate Director (Property Services) on the tenders, together with two appendices (production 6/5). In appendix 2 the tender evaluation model is detailed and the criteria which were scored are listed. Mr Johnston submitted that some of these did not properly arise at this stage and were matters more suitable for pre-qualification evaluation. In particular, Appendix 2 included reference to plant and equipment; staff structure; and Health and Safety policy. Mr Johnston submitted that these issues related to the suitability of the contractor. Further, it was claimed that at the debriefing it was said that the reference to the project plan related to the contractor's ability to perform the contract. That was not an appropriate consideration for the award stage.

[30] The criteria for making the award of a public contract are dealt with at regulation 30. Regulation 30(2) provides:

"A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period or period of completion."

[31] Mr Johnston relied on the decision of the European Court of Justice in Lianakis v Alexandroupolis, issued on 24 January 2008. In that case the criteria set out in the contract notice were: (1) the proven experience of the expert on projects carried out over the last three years; (2) the firm's manpower and equipment; and (3) the ability to complete the project by the anticipated deadline, together with the firm's commitments and its professional potential. Analysing the criteria appropriate to making an award on the basis of the economically most advantageous tender, the judgment of the court states:

"29. However, although in the latter case, article 36(1) of Directive 92/50 does not set out an exhaustive list of the criteria which may be chosen by the contracting authorities, and therefore leaves it open to the authorities awarding the contracts to select the criteria on which they propose to base their award of the contract, their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous....

30. Therefore, 'award criteria' do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead linked to the valuation of the tenderer's ability to perform the contract in question.

31. In the case in the main proceedings, however, the criteria selected as award criteria by the contracting authority relate principally to the experience, qualifications and means of ensuring proper performance of the contract in question. Those are criteria which concern the tenderer's suitability to perform the contract and which therefore do not have the status of award criteria pursuant to article 36(1) of Directive 92/50.

32. Consequently it must be held that, in a tendering procedure, a contracting authority is precluded by articles 23(1), 32 and 36(1) of Directive 92/50 from taking into account as award criteria rather than as qualitative selection criteria the tenderers' experience, manpower and equipment, or their ability to perform the contract by the anticipated deadline."

[32] Mr Bartos referred to a decision of the Court of First Instance in the case of Renco SpA v Council of the European Union 2003 ECR II 171. The award criteria in this case included the experience and competence of the permanent team in providing services similar to those described in the contract documents; the experience and technical competence of the undertaking; a proposal made with regard to the safety coordinator; the quality of any sub-contractors and supplies proposed; the technical quality of the equipment and materials proposed; and the measures proposed for observing the prescribed time limits for completion. In paragraph 66 of the judgment it was noted that the provision of article 30(2) of Directive 93/37 left it open to the Council to choose the criteria on which it proposed to base its award of the contract, provided that the criteria chosen were aimed at identifying the offer which is economically the most advantageous. In order to determine the economically most advantageous tender, the Council must be able to exercise its discretion, taking a decision on a basis of qualitative and quantitative criteria that vary according to the contract in question. The Court of First Instance goes on to point out in paragraph 67 that article 36(1)(a) of the Directive cannot be interpreted as meaning that each of the award criteria used by the contracting authority to identify the economically most advantageous tender must necessarily be of a purely economic nature, because it cannot be excluded that factors which are not purely economic may influence the value of a tender from the point of view of the contracting authority. The judgment goes on at paragraph 68 to state:

"It follows that article 30(1)(b) of Directive 93/37 cannot be interpreted as meaning that each of the award criteria used by the Council to identify the most economically advantageous tender had necessarily to be either quantitative or related solely to the prices or rates contained in the summary. Various factors which are not purely quantitative may affect the execution of work and, as a result, the economic value of a tender. For instance, the experience and technical competence of a tenderer and its team, the familiarity with the kind of work covered by the contract in question and the quality of the sub-contractors proposed are all qualitative factors which, if they do not reach the level required by the contract, may cause delays in the execution of the work or make additional work necessary. It follows that even if some of the criteria mentioned in the contract documents for assessing a tenderer's competence to carry out the works are not expressed in quantitative terms, they may be applied objectively and uniformly in order to compare the tenders and are clearly relevant for identifying the most economically advantageous tender."

The court concluded that the qualitative criteria used in that case were not vague and could all be evaluated objectively and specifically. It was held that they were transparent and relevant in relation to the nature of the contract and they sought to identify the most economically advantageous tender.

[33] Mr Bartos recognised that the decisions of the Court of First Instance in Renco and the Court of Justice in Lianakis were contradictory. In my view it is not necessary for me to embark on an analysis of a hierarchy of the European Courts in terms of their persuasiveness. It seems to me sufficient to recognise that on the basis of the recent decision in Lianakis some of the criteria used by the defender may not fall to be considered as award criteria. That is enough in my view to allow me to conclude that in this regard the pursuer has a prima facie case.

The failure to carry out an equal and transparent assessment of the tenders
[34] The pursuer avers that the scoring system employed by the defender offered complete discretion to the panel members to manipulate the scores on an entirely subjective basis without any objective constraints.

[35] The issue of scoring was raised in the bulletins. Question 16 of Contract Bulletin No 3 (production 6/15) sought clarification of the "Quality Score" system to be used by requesting three hypothetical score sheets for illustration purposes. The defender stated that it was considered that the terms of the contract were clear on this matter and it was not intended to provide such illustrations.

[36] In Contract Bulletin No. 4A, Question 5, (production 6/16) the pursuer asked for the identity of the nominated officials who would evaluate the quality submissions, together with information about their training and experience. In reply, the defender stated that these questions were not relevant to the current tender process.

[37] By e-mail sent on 5 February 2008 (production 30) the matter of the scoring system was again raised by the pursuer who repeated the request from the previous occasion. The defender referred to its earlier answer and indicated that it had nothing to add.

[38] Production 6/33 is a letter from the defender to the pursuer's solicitor in which it is stated that there were no individual score cards for the tender evaluation exercise, but rather a consensus view of the entire panel. In addition, the pursuer claims that at the debriefing meeting on 28 April the pursuer was told that the defender assessed the tender on the basis of a "feeling".

[39] The assessment of tenders was weighted so that 60% would be allocated to consideration of price and 40% would be allocated to considerations of quality. Mr Johnston pointed out that the members of the selection panel had sight of both the price and quality submissions of the tenderers; good practice would require different people to address these separately. The health and safety section had been filled in in advance and all members had access to it. As noted above, the panel had arrived at a consensus view rather than reaching a conclusion though individual scoring and, although this is disputed, it is averred that they did so on the basis of a "feeling". Mr Johnston submitted that these considerations demonstrated a lack of objectivity and reflected a failure to deal with the tenders in a transparent way.

[40] Mr Johnston relied on regulation 4(3) of the 2006 Regulations and the decision in SIAC (supra).

[41] Mr Bartos pointed out that a scoring system had been put in place. While any scoring system will involve a degree of judgement, the scoring system in place was objectively based. The headings in the scoring system gave a fair indication to the tenderers as to what would be scored. The suggestion that the exercise had been carried out on the basis of feeling was denied. The criteria used did not result in an unrestricted freedom of choice on the local authority.

[42] I note paragraphs 34 and 37 of the SIAC case:

"[34] More precisely, tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the adjudicating authority...

[37] Further, an award criteria having the effect of conferring on the adjudicating authority an unrestricted freedom of choice as regards the awarding of the contract in question to a tenderer would be incompatible with article 29 of Directive 71/305, as amended."

[43] In my opinion it is self evident that the scoring system leading to the award of a public contract under the 2006 Regulations is a area which is particularly vulnerable to the risk of unequal treatment of tenders and a lack of transparency. A robust approach observing objective standards is essential. Unrestricted freedom of choice must be avoided. The features identified by Mr Johnston seem to me to point towards a prima facie case for the pursuer on this aspect. It seems to me that the pursuer may be able to prove that the approach adopted by the defender demonstrated a lack of objectivity and reflected a failure to deal with the tenders in a transparent way. The averments that the members of the selection panel had sight of both the price and quality submissions of the tenderers; that the panel arrived at a consensus view rather than reaching a conclusion through individual scoring; and that they did so on the basis of a "feeling" are matters which, if proved, could undermine the integrity of the award process. Accordingly, I am satisfied that the pursuer has demonstrated a prima facie case on this issue.

Failure to comply with regulation 32
[44] The pursuer contends that the debriefing process failed to comply with the provisions of regulation 32. There were debriefing meetings on 21 April and 6 May. Mr Johnston submitted that the information which had been communicated at these meetings was insufficient to satisfy the requirement of regulation 32(4) which provides that if the economic operator requests the contracting authority to give reasons why the economic operator was unsuccessful, "the contracting authority shall inform that economic operator of the characteristics and relative advantages of the successful tender."

[45] Production 7/2 is a debriefing Note which was read out at the meeting on 21 April. This was subsequent to a letter dated 15 April 2008 in which the pursuer was advised that its tender had not been successful. The letter advised that the evaluation resulted in the pursuer receiving a score of 96 compared with the winning tender from Centre Great which scored 97.5. The Note gave the scores of the pursuer for price and quality and those of the winning tenderer. A number of strengths in the pursuer's proposal were identified and under the heading "Areas for Improvement" it was stated that no aspect of the proposal was less than satisfactory but that they should focus on areas scoring three with a view to improving to four or five. Under the heading "Relative Advantages of Centre Great Proposal" the following items were listed: project plans; liaison/communications; emergency procedures; best value proposals; staff structure and island capability.

[46] In a letter dated 23 April 2008 from the solicitors acting for the pursuer to the defender it is claimed that at the meeting on 21 April 2008 the defender had failed to provide information as required by regulation 32(4). A further debriefing meeting was held on 6 May and production 7/3 is a Note of that meeting. In the Note reference is made to a letter from the solicitors acting for the pursuer dated 2 May 2008 (which I have been unable to find within the productions) in which four particular matters on which further information was wished were identified. The first of these related to the meaning of each of the contract award criteria headings. The position of the defender was that the headings were detailed in the tender documents and that the Council did not want to qualify, amend or expand on these in any way. In the Council's view, these were self explanatory and further clarification was not required in order to cover the characteristics and relative advantages of the successful tender. The second matter on which further information was sought was "the objective criteria the Council was looking for in tender submissions when it assessed each of the contract award criteria". It is not altogether clear what is meant by that but, in any event, the Council's view was that this was a fishing exercise in contemplation of court proceedings rather than anything relating to the characteristics and relative advantages of the successful tender. Accordingly, the defender would not provide such information. The third request related to respects in which the pursuer's submissions and those of Centre Great did not meet objective criteria. The defender's position was that it was intended to explain the characteristics and relative advantages of Centre Great in respect of those criteria where they had scored higher than Lightways. The fourth matter related to the quality scoring system and the defender's position was that the quality scoring system in the tender document was self-explanatory and that further detail was not required for the purpose of the debrief.

[47] Thus, the defender took a narrow view of the phrase "relative advantages" and restricted the discussion to areas where Centre Great had scored higher than the defender. As previously noted these were: the project plan; liaison/communications; emergency procedures; best value; staff structure; and island capability. The Note of the meeting demonstrates that each of these was addressed in some detail and I did not understand Mr Johnston to complain about the information that was given on these matters.

[48] Under reference to appendix 2 in 6/5 of process, Mr Johnston pointed out that there were only seven criteria in which Centre Great had achieved a higher score which meant that the defender was willing to provide a debrief on only seven out of seventeen elements. It was necessary for the pursuer to know how good the submission was in all areas as it might wish to redirect its efforts among the elements. Mr Johnston contended that there was nothing in regulation 32(4), read literally or by purpose, to interpret it as requiring the defender to have to give only information with respect to criteria where the successful tenderer had a higher score.

[49] Under reference to Strabag Benelux NV v Council of the European Union 2003 ECR Vol. 2, 135, Mr Johnston argued that in the present case the pursuer was left in a state of uncertainty as to why it was unsuccessful.

[50] Mr Bartos submitted that the information which was provided was sufficient to meet the requirements of regulation 32.

[51] It is clear from Strabag that satisfaction of the obligation under regulation 32(4) depends on whether it puts an unsuccessful tenderer in a position in which it can clearly identify the reasons for rejection in order that it can defend its rights and that there would be sufficient information to enable the court to exercise its jurisdiction with the standstill period. Paragraph [55] states:

"... the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the court to exercise its supervisory jurisdiction."

[52] It seems to me that significant information was made available to the pursuer at the debriefing meetings, particularly on 6 May. However, in considering whether the pursuer has set out a prima facie case that the provision of information was not sufficient to discharge the obligation under regulation 32(4), it does seem to me that there is room for an argument as to a broader interpretation of the regulation than the defender was prepared to concede in the debriefing process. Accordingly, I am of the opinion that the pursuer has set out a prima facie case. However, having regard to the information which was made available it seems to me that that prima facie case can be described as weak.

Balance of convenience
[53] Regulation 47(8) provides the powers of the court in making an interim order to suspend the procedure leading to the award; in setting aside the decision; and awarding damages to an economic operator which has suffered loss or damage as a consequence of the breach of the Regulations. The court may set aside the decision and award damages. However, paragraph (9) stipulates:

"In proceedings under this regulation, the court shall not have power to order any remedy other than an award of damages in respect of a breach of their duty owed in accordance with paragraph (1) or (2) if the contract in relation to which the breach occurred has been entered into."

Consequently, if an order for interim suspension is not made and the contract is entered into, the only remedy available is an award of damages.

[54] Mr Johnston submitted that the balance of convenience favoured the grant of interim suspension. If an order for interim suspension was not made the contract would be entered into and the pursuer would be left without any rights under the 2006 Regulations except the right to damages. That was not a satisfactory alternative remedy. He submitted that damages would be difficult to quantify. On the other hand, interim suspension would not materially prejudice the defender or Centre Great as the contract which was presently in operation would continue until the procurement exercise had been completed. Mr Johnston also contended that the prima facie case was strong and this should be taken into account in considering the balance of convenience.

[55] Mr Bartos explained that in the event of an order for interim suspension the existing contract would require to continue. He went on to inform me that the existing contract was more expensive than the new contract as a result of which the defender would require to pay an additional £23,360 per month in order to sustain the existing contract.

[57] I recognise that if the contract is entered into the only right with which the pursuer would be left would be the right to damages. While that would certainly put the pursuer at a disadvantage, I am not persuaded that the difficulties associated with quantifying damages would be undue. If the order is made, the defender, which is a local authority, will require to pay out a significant sum of additional money each month until the matter is resolved. That seems to me to be powerful consideration shifting the balance of convenience in favour of the defender. I do not consider that, looked at as a whole, the prima facie case is sufficiently strong to tip the balance back in favour of the pursuer. Accordingly, when I put all the relevant considerations in the balance I am satisfied that on the balance of probabilities I should refuse to order interim suspension of the implementation of the defender's decision to award the contract to Centre Great. I shall reserve the question of expenses meantime.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lightways (Contractors) Ltd v. North Ayrshire Council [2008] ScotCS CSOH_91 (20 June 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_91.html Cite as: [2008] ScotCS CSOH_91, [2008] CSOH 91

Scottish Court of Session Decisions