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In the case of Healthcare at Homes Limited against the
Common Services Agency [2012] CSOH 75, award decision letters
were sent on 13th of May 2010 and a challenge was
subsequently raised. However, it took just short of 2 years
(1st of May 2012), for an ultimately unsuccessful bidder
challenge to be rejected by the Court.
In comments at the end of his judgment, the judge noted the need
to determine procurement challenges more speedily. The
issue has been passed to the Court of Session's Consultative
Committee on Commercial Actions. Contracting authorities and
bidders alike - watch this space!!
Facts of the case
Healthcare at Homes Limited ("HAH") was unsuccessful
in its bid to be appointed to the Common Services Agency ("the
CSA") framework agreement for dispensing and delivery of the
drug Herceptin. HAH sought an order under Regulation 47A(1)(b)(i)
of the Public Contracts (Scotland) Regulations 2006 ("the
Regulations") to set aside CSA's decision, arguing that
the CSA had breached, on a number of counts, obligations on CSA to
treat HAH equally and without discrimination and to act in a
transparent and proportionate manner. HAH claimed, amongst
other matters, that sections of the ITT lacked clarity, were
inadequate or scored incorrectly.
The Court found that CSA had given HAH adequate information,
commenting that:
"the obligation on the authority to give very precise
and highly detailed descriptions of its requirements would both be
very burdensome and also prevent tenderers from using their own
initiative and experience to offer innovative approaches to meeting
the authority's requirements."
and that:
"in assessing whether there has been adequate
disclosure of a criterion or sub-criterion the court can ask
whether the matter, which is alleged not to have been disclosed,
would have been reasonably foreseeable by a reasonably
well-informed and normally diligent tenderer as encompassed by that
criterion or sub-criterion".
Of potential interest, the CSA had adopted a "silo"
system of having different scorers, with different specialities,
score different sections of the tender. HAH argued that the
CSA had not made this approach sufficiently clear. They felt
this was unfair as it meant that scorers had failed to regard
material contained in a separate section.
The court found that CSA had given sufficient notice to
tenderers of the use of the "silo" system and that it was
implicit in such a system that scorers may not have regard to all
sections of the bid, though the judge noted by way of
postscript:
"It is easy with hindsight to identify further steps
which can be taken to avoid unfortunate circumstances. One such
step might be for CSA to state explicitly in its instructions to
tenderers on the completion of tender documents that under its
system its scorers will receive only the responses in relation to
the sub-criteria which they are asked to mark and that they will
have regard only to the content of the individual response when
allocating a score to that response. Thus a matter which was
implied can be made explicit."
Comment: this case emphasises
the importance of a contracting authority: (i) setting out a clear
procurement process from the start; (ii) following that process;
(iii) making its decisions pursuant to clear and objective criteria
and scoring mechanisms and (iv) ensuring that it is in a position
to objectively justify scoring awarded by reference to the
mechanisms set out. From a bidder's perspective, the case
provides a useful insight into what may be recognisable to some as
"common complaints" may end up being interpreted by the
Courts.
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