Ireland: What Information Must You Give To Unsuccessful Tenderers?

The Irish Remedies Regulations¹ require public bodies to notify in writing each unsuccessful tenderer of: 

• the characteristics and relative advantages of the tenders selected; and
• the name of the successful tenderer or, in the case of a framework agreement, the parties to it.

The Remedies Regulations state that the obligation to give unsuccessful tenderers "may" be fulfilled by giving the successful tenderer's name and its scores together with the unsuccessful tenderer's scores. Does this go far enough? 

This was considered in a recent European case.² Alfastar Benelux SA, Siemens IT Solutions and Services SA (the "Alfastar-Siemens consortium") unsuccessfully tendered for the provision of IT services to the Council of the European Union. The Alfastar-Siemens consortium was provided with a table comparing the scores it received with those of the successful tenderer against all of the award criteria but it was not given any explanation of the reasons for these scores.

The European General Court annulled the award of the contract. It held that giving reasons was "essential" to allow the Alfastar-Siemens consortium to understand why its bid was not selected. Merely providing scores was determined to be too abstract for this purpose. The Court noted that there was not even a "brief comment" on either bid which would enable the Alfastar-Siemens consortium to understand why it was not selected. The Court also found that the failure to keep a note of the evaluation meant that it could not review whether the award decision constituted a manifest error of assessment. It held, accordingly, that the decision was flawed by inadequate reasoning.   

The failure to provide the information required by the Remedies Regulations can give grounds for the contract to be declared ineffective. In light of this case, it is prudent to give the unsuccessful tenderer the scores of the successful tenderer and the unsuccessful tenderer against all award criteria and sub-criteria, together with a narrative explaining the characteristics and relative advantages of the successful tenderer. Needless to say, the narrative should be consistent with a proper application of the relevant criteria and all the criteria should have been disclosed in advance in the tender documents.

Case T-57/09 Alfastar Benelux S.A. v Council of the European Union [2011] OJ C355/16

Footnotes

1. The European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 S.I. No. 130 of 2010 and the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 No. 131 of 2010.

2. This case concerned specific procurement rules applicable to European Institutions, rather than the traditional procurement rules applicable to Irish public bodies.  However, the obligation under each set of rules is more or less identical, so that this case is of insight to the rules for Irish public bodies.

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