Clearer feedback
High Court provides ‘transparency’
on debriefing obligations
A recent decision of the Irish High Court has brought debriefing
obligations into the spotlight and provided guidance on the scope
and extent of a contracting authority’s legal obligations in this
important area of procurement.
Background
Decision
RPS Consulting Engineers Limited (“RPS”) submitted a
tender to Kildare County Council (“KCC”) for abovethreshold engineering consultancy services in relation
to the design and delivery of the new Athy southern
distributor road.
The Court was extremely critical of the approach
taken by KCC to the debriefing exercise and refused
to accept that there had been lengthy and detailed
consideration of the formulation of the reasons,
stating that “given the substantially identical nature
of the reasons as between the losing candidates and
the elusively vague and slippery, even obfuscatory,
nature of the linguistic barricade erected between the
reader and an understanding of what specifically was
motivating the decision-maker, this seems unlikely,
but if it is correct it does not say much for those
composing the reasons”. The Court also criticised the
uniform and generic nature of the letters that issued
to all unsuccessful tenderers and KCC’s refusal to
engage with RPS in any meaningful way.
KCC subsequently notified RPS that they were
unsuccessful and provided the name of the successful
tenderer, the scores and the purported reasons.
RPS were more competitive than the successful
tenderer on price and therefore lost on the qualitative
aspects of their bid. The reasons furnished consisted
of a repetition of the scores (phrased in terms of
“good”, “very good” etc.), and the award criteria
and another 16 words, which the Court considered
were vague and only made general reference to the
manner in which the preferred tender was “more
relevant” or “more comprehensive” than RPS.
The Court also reviewed the debriefing letters sent to
the other unsuccessful tenderers and noted that the
same generic reasons were provided to each of these.
The Court considered the relevant European
Directives and the implementing Irish Regulations
and determined that the law envisages a “dialogue”
between the contracting authority and an
unsuccessful tenderer, which cannot simply be
“shut down” by the authority’s determination that its
standstill letter is sufficient.
The Court also had regard to:
––the public policy objective of better administrative
decision making and provision of adequate reasons
for decisions
––the European legal principle of transparency
––the desirability of debriefing as referred to in the
Department of Public Expenditure and Reform
Circular 10/14: Initiatives to assist SMEs in Public
Procurement (16 April 2014)
The Court summarised the legal position as follows:
1. Where the award turns on quantitative criteria such
as price, it may be sufficient to give the scores alone.
2. Where the award turns on qualitative criteria, there
is a heightened obligation to give reasons, especially
where the unsuccessful tenderer offered a more
competitive price.
3. The authority must give reasons as to the relative
advantages of the preferred tenderer. This requires
a comparison of the parties’ tenders and “bespoke”
reasons to be given.
4. A statement of reasons which is succinct may well be
sufficient in some circumstances, but not in others.
5. The authority’s explanation must be sufficiently
precise to enable a tenderer to ascertain the matters
of fact and law on the basis of which the contracting
authority rejected one offer and accepted another.
6. When setting out the characteristics and relative
advantages of the successful tender, the authority
must at least mention the matters which should
have been included in the unsuccessful tender or
the matters contained in the successful tenders.
Thus, the statement of reasons must be sufficiently
detailed to explain how the preferred tender was
advantageous by reference to particular matters of
fact.
7. An unsuccessful tenderer may request additional
information about the reasons for their rejection in
writing. That request must be responded to positively
unless specific listed exceptions apply.
8. The Court decided that generic statements that a
tender is “good” or ”very good” or which merely
repeat the award criteria or scoring indicators are
simply not sufficient.
Contacts
For more information, please contact:
Peter Curran
Partner, Head of Procurement
Ireland: +353 1 6644950
UK: +44 28 9061 8904
[email protected]
Angelyn Rowan
Partner, Projects and Procurement
+353 1 6644270
[email protected]
eversheds.ie
©Eversheds Ireland is a member of Eversheds International Limited.
EDUB.652 03/16
Debrief meetings
The Court did not accept KCC’s reasons for not offering
a debrief meeting after the expiry of the 30-day limitation
period for initiating legal proceedings. KCC were fearful that
any such meeting could re-start the 30-day limitation period
again, thus giving the applicant a new right of challenge. The
Court did not accept this approach and stated that “hunkering
down and saying nothing lest it be used against one” was
not an acceptable stance and was contrary to Department of
Public Expenditure and Reform guidance (Circular 10/14).
Defective standstill period
Although the Court firmly rejected the adequacy of the
standstill letter, it also rejected RPS’ argument that the
standstill period could not have expired. The Court held that,
on the basis of the need for legal certainty, the standstill
period runs even if the notification is non-compliant as to
reasons, (save where the notification is quashed, which the
Court said would normally only arise if a challenge is initiated
within the standstill period itself).
Observations
The requirement to give bespoke reasons to an unsuccessful
tenderer builds on the jurisprudence of the European Courts,
which establishes the necessity to furnish reasoning in a “clear
and unequivocal fashion”. Bland and generic statements
which tell unsuccessful tenderers nothing about the merits of
the successful tender will not be accepted by the Courts.
The decision casts doubt on what has been a common
understanding that a compliant standstill letter is sufficient
to discharge a contracting authority’s debriefing obligations.
An obligation to enter into a “dialogue”, including potentially
a debrief meeting, with an unsuccessful tenderer will
be considered by many authorities as an unwelcome
development. Authorities may now find it difficult to ascertain
when they are legally entitled to draw the line on their
dialogue with disgruntled tenderers. It may be difficult to
reconcile the Court’s comments on the debrief meeting
and on the 30 day limitation period not re-starting with the
wording of the Remedies Regulations which state that the
limitation period commences when the applicant “knew or
ought to have known” of the alleged infringement, particularly
when new information only comes to the attention of a
tenderer at such a meeting.
The Court was clearly unimpressed with what it considered to
be an ”officious and dismissive” approach adopted by KCC in
its dealings with RPS. The clear message from the judgment
is that contracting authorities have to pay careful attention to
the content of standstill letters to ensure they are meaningful
for unsuccessful tenderers and following the issue of letters,
they will have to carefully manage any further “dialogue” that
is requested by tenderers.
Unsuccessful tenderers now have a clearer understanding
of what they should expect from a debriefing exercise.
However, given the comments regarding the standstill period
commencing even when the standstill letter is defective, the
need for swift action is now present more than ever.
Please click here for the judgment.