Once a tender has been awarded, do courts interfere in how the bids were scored? Sometimes, but not often – and only when challenged by an unsuccessful bidder. So, when courts do interfere, what has that got to do with you having answered all parts of a question or not? Well, the point is: answer it properly now to (a) help you score highly and win the tender; and (b) you needn’t worry about it being challenged by another bidder later. Read on to find out more.
Unless objective rules have been breached and fairness and transparency obligations not complied with, courts don’t normally interfere in the actual marking of tenders. They are notoriously only too happy to let tendering authorities get on with it and apply their own discretion – provided of course that they have said up front in the tender evaluation criteria how bidders are going to be marked.
However, the courts can also intervene when they see that a manifest error has occurred in the marking. ‘Manifest’ means that it was both obvious and irrational, e.g. a score of 10 out of 10 where it clearly should have been a zero as none of the points were addressed at all. Smaller differences (e.g. is it 7 or 8 out of 10?) tend not to be ‘manifest’ as the courts allow subjective judgments by evaluators – there has to be some leeway, or ‘margin of appreciation’, to allow an evaluator the latitude to award scores as they see fit according to their professional and technical expertise.
A good public sector example of a case that went to court, and which illustrates why you should always answer ALL PARTS of a question, is Woods Building Services v. Milton Keynes Council (2015). Woods lost out on a tender and challenged the scores that the Council had given to the successful bidder, EAS. On closer scrutiny, and as one of many questions under challenge, the court said that EAS hadn’t answered a certain question properly. This was declared a manifest error and the court decreed that it got a zero score. So why was this re-scored to a zero? And why was it a ‘manifest error’?
The critical importance of the question had been stressed in the evaluation criteria within the MEAT (Most Economically Advantageous Tender) document. During the case, the judge ruled that the awarded score of 6 should have in fact been a zero. This was because the question effectively had two elements to it but only one element had been answered. The two elements were important. The question was: “Explain your mobilisation plan and your proposals to ensure that all task orders are completed within the given time scale.”
EAS only answered the first part regarding mobilisation. To ignore half of it was considered a manifest error. The tender documentation, referencing KPIs (98% of the works contained within Task Orders were to be completed to programme), had stressed the importance and criticality of the timescales. EAS had not said how they would meet those timescales. The judge said: “… I consider that there is no sensible alternative but to conclude that the Council made a manifest error in not scoring the EAS response at zero. This question asked for two things: mobilisation and proposals to ensure that the Task Orders were completed within the time scales required by the Council. EAS wholly failed to address half the question, and the omission was, on the Council’s own MEAT document, a very important element of the proposed contract. There was therefore a material and substantive failure to meet the Council’s requirements, which had to result in a score of zero.”
This principle may not apply to all questions you will ever come across, though – the critical factor here was the importance and complexity attached to it in the MEAT document. In another situation, a court could, having read the tender documents, equally say that not every element of a question was quite so critical and that some sort of score could be fairly applied for having answered only part of the question. It’s all down to the context.
It’s not worth taking a chance with your response. Whether or not a case involving a tender of yours ever goes to court (which is highly unlikely!) does not matter – the relevance of this case simply indicates that you don’t necessarily score half marks for answering half of a question well, and ignoring the other half! So….do the right thing and always read the question thoroughly – every word of it – and answer it in full, addressing each and every element. You may end up getting a zero for it otherwise (from the evaluation team, or from a court!), which will affect your overall score. In fact, if it is sufficiently critical to be stated to be a ‘pass/fail’ question and it explains as much in the evaluation criteria, then half an answer from you at the tender stage could mean you receiving a zero score for it and, ultimately, disqualification.
This article includes the author’s guidance and opinion only and is not intended to be legal advice.