“Relative scoring mechanisms
and
the limits of the principles of
equal treatment and
transparency”
Prof. dr. Elisabetta R. Manunza
Prof. dr. Jan Telgen
12th June 2017
Global Revolution, University of Nottingham
Exception to the general rule “weighting
factors fixed during the entire procedure”
TN Dimarso (earlier: ATI EAC C-331/05; Dynamiki C-252/10):
“26. (…) it is possible (..) to determine, after expiry of the time
limit for submitting tenders, weighting factors (…) provided that
three conditions are met:
- Subsequent determination does not alter the criteria for the
award of the contract set out in the tender specifications or
contract notice;
- does not contain elements which, if they had been known at
the time the tenders were prepared, could have affected their
preparation;
- was not adopted on the basis of matters likely to give rise to
discrimination against one of the tenderers.”
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Outline
 MEAT and Relative scoring mechanisms:
• overestimation of the principles of transparency and equal
treatment
• need for objectivity
 knowledge from decision-making sciences
disregarded in PP regulation and case law
 Concluding remarks and outlook
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Problems by evaluating MEAT with relative
scoring mechanisms
 Depending on selected scoring rule:
price will play de facto a greater role than quality
 winner will not always be the tenderer submitting
the “best” bid
 Scoring rule indicated in documents?
Principle of transparency has thus be satisfied.
 MEAT crucial for sustainable, inclusive, smart
procurement (EU 2020 strategy)
4
Need for effective and coherent legal
framework:
 In PP procedures wrong choices are made on a regular basis
 Effectiveness
 ex post empirically: how is the compliance of the regulations in
practice?” or
 in advance, ex ante, by testing against principle of nondiscrimination, proportionality, equal treatment, transparency.
 Coherence / consistency
 Art. 11, 3 [TEU]: (…) in order to ensure coherent EU actions.(...)”
 Art. 13, 1 [TEU]: “The Union shall (…) ensure the consistency,
effectiveness and continuity of its policies and actions.
 Art. 7 [TFEU]: “The Union shall ensure consistency between its
policies and activities (…)”.
5
Bottom-up influences
“Shared regulation” after Lisbon Treaty
 Commission obligation to organise consultations (Art. 4,
para. 3, Art. 11 para. 3, Art. 13, para. 2 TEU):

Influence of lobby of regional and local authorities on
final texts three new Directives

Introducing larger discretionary power in setting up PP
procedures
Risks for incoherent regulation
 “Shared regulation” after Lisbon Treaty
 knowledge from decision-making sciences
disregarded in PP regulation and case law
Utrecht University and Twente University
Not every problem can be solved by rules,
Neither are the rules always to blame for the
problems:
Multi-/ interdisciplinary research method (economics,
law, purchase management, mathematics) aims at
finding innovative solutions in the PP field
Art. 67, section 5 directive 2014/24/EU:
The contracting authority shall specify, in the procurement
documents, the relative weighting which it gives to each of the
criteria chosen to determine the most economically
advantageous tender, except where this is identified on the basis
of price alone.
Those weightings may be expressed by providing for a range
with an appropriate maximum spread.
Where weighting is not possible for objective reasons, the
contracting authority shall indicate the criteria in decreasing
order of importance.
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Relative scoring
• Relative scoring on a criterion:
– Score of a bid depends on other bids
– Usually best bid e.g. score = MAX * (best bid/this bid)
Example:
• Price score = 50 * (best price/price)
• Quality already scored
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Who wins?
If A does not participate:
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Who wins?
Price score Quality score Total score
Supplier A
50
2
52
Supplier B
16.7
41
57.7
Supplier C
14.7
45
59.7
Supplier D
13.1
49
62.1
If A does not participate:
Price score Quality score Total score
Supplier B
50
41
91
Supplier C
44.1
45
89.1
Supplier D
39.4
49
88.4
Note:
• Same bids, but
different winners =
rank reversal
• Depending on
participation of
non-competitive
bidder (collusion?)
• Changing
valuation of price
difference between
B and D (from 3.6
to 11.6)
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Dutch Civil Courts
 Appeal rejected on procedural grounds
 Transparency principle was satisfied as long
as the scoring rules had been indicated in
contract notice or tender document
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Hoge Raad (Supreme Court) in Ricoh NL BV v.
Municipality of Utrecht (9 May 2015)
framework agreement for printers supply
evaluation based on relative scoring
winning bid was later declared invalid;
Municipality of Utrecht automatically awarded the contract to
the second-best tenderer.
 Third-best tenderer demanded a recount of the scores and
asked in Court:




Is relative scoring nature of the scoring system a violation of
principle of equal treatment and/or transparency?
Result would be different when the invalid bid would have been left
out from the beginning.
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Hoge Raad (Supreme Court) in Ricoh NL BV v.
Municipality of Utrecht (9 May 2015)
 legal reasoning based on usual abstractions:
principles of equal treatment and transparency;
 Hoge Raad: “a relative scoring rule cannot be
rejected ‘merely on the basis of the relative nature’,
but that it depends ‘on the manner in which a
certain scoring system has been applied in the
specific case’;
 Regrettable: no preliminary ruling
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Other viewpoint?
 Recital no. 90 Directive 2014/24/EU:
“(..) Public contract should be awarded on:
 the basis of objective criteria
 with a view to ensuring an objective comparison of the
value of the tenders in order to determine,
 in conditions of effective competition, which tender is the
most economically advantageous tender.”
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Art. 1.4 of the Dutch Public Procurement Act
2012
A contracting authority (…) shall determine on the
basis of objective criteria:
a. the choice for the award of the contract;
b. the choice for the economic operator or
operators.
18
EUCJ n Concordia Bus Finland
(17 september 2002, C-513/99)
Para 59:
While Article 36(1)(a) of Directive 92/50 leaves it to the
contracting authority to choose the criteria on which it proposes
to base the award of the contract, that choice may, however,
relate only to criteria aimed at identifying the economically most
advantageous tender.
Since a tender necessarily relates to the subject-matter of the
contract, it follows that the award criteria which may be applied
in accordance with that provision must themselves also be linked
to the subject-matter of the contract.
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Definition MEAT
CoFi 16 september 2013, T-402/06 Spain/Commission no. 76:
(…) the one with the best price-quality ratio, taking
into account criteria justified by the subject of the
contract.
Accordingly, where the contracting authorities choose
to award the contract to the MEAT, they must assess
the tenders in order to determine the one which
offers the best value for money.
20
EUCJ 7 october 2004, C-247/02, (Sintesi
SpA/Autorità per la Vigilanza sui Lavori Pubblici
Para. 40:
“However, the abstract and general fixing by the
national legislature of a single criterion for the award
of public works contracts deprives the contracting
authorities of the possibility of taking into
consideration the nature and specific characteristics
of such contracts, taken in isolation, by choosing for
each of them the criterion most likely to ensure free
competition and thus to ensure that the best tender
will be accepted.”
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Concluding remarks and outlook
 Transparency and equality principles not always adequate to
resolve certain problems in practice
 Achieving Europe 2020 goals depends on scoring rules.
 Essential:
 to create legal, objective frameworks to make the range of
options and broad discretionary powers of the contracting
authorities subject to review;
 to provide affected parties with the possibility to review the
limits of the broad discretionary power of a contracting authority
in the Courts.
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[email protected]
www.pprc.eu
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