The High Court (Coulson J) has today handed down judgment in Woods Building Services v Milton Keynes District Council [2015] EWHC 2011 (TCC) (14 July 2015).
In a landmark judgment, the Court has upheld wide-ranging claims of breach of transparency, equal treatment and manifest error relating to the Council’s evaluation of tenders and ordered that its contract award decision must be set aside.
This is the first case in which an English Court has set aside a public body’s contract award decision under the Public Contract Regulations 2006 (“the Regulations”).
The claim concerned a £10 million, 4 year, framework agreement (“the Framework”) for asbestos removal and reinstatement services.
Woods, the incumbent provider of the services of the Council, competed in the procurement to be awarded the Framework. However, following the conclusion of the tender evaluation process the Council informed Woods that it had been unsuccessful (by just 3%) and that it proposed to award the Framework to another contractor, EAS. Woods was concerned by various aspects of the Council’s, very scant, evaluation feedback and issued proceedings under the Regulations.
The High Court upheld Woods claim, concluding that the Council’s tender evaluation was fundamentally flawed and unlawful.
The Court held that the Council’s evaluation of 8 of the 12 award criteria was unlawful.
In relation to two of the award criteria where the Council had purported to award EAS scores of 10/10, the Court held that on a lawful approach the EAS tender response should have been scored 0/10 (zero).
The Court determined that it was a question for it to determine the lawful scores that should have been awarded to the tenders. The Court proceeded to hold that the Council’s various breaches of duty required that the scores awarded to EAS be reduced by a total of 40 marks, and that the marks awarded to Woods’ tender must be increased by 6 marks.
This resulted in the conclusion that Woods, which had also submitted the lowest priced tender, had submitted the most economically advantageous tender by a very significant margin and ought to have been awarded the Framework.
The Judgment contains extensive analysis of the approach the Court will take to legal challenges to procurement evaluation scoring decisions and demonstrates that (in an appropriate case) the Court will conduct a careful analysis of the legality and fairness of such procedures.
A copy of the judgment can be found here.
There will be a further judgment in the case in relation to the issue of remedy.
Joseph Barrett of 11KBW acted as sole counsel for the successful Claimant, Woods.
