The use of internal marking schemes and model answers is something which should be considered carefully in all cases.  This is illustrated by a recent UK case.  Leeds City Council ("LCC") invited tenders for the refurbishment and maintenance of social housing. Mears, an unsuccessful tenderer, challenged the award of the contract on a number of grounds.

The published evaluation table set out the weighting for a number of criteria and also identified the numbered sections of the tender which fell under the heading of each individual criterion.  The tenderers did not know how many marks were allocated to each section which fell under the heading of a particular criterion (i.e. the breakdown of marks among the sections within that criterion).  Each section of the tender had a varying number of questions in it.    The evaluation table also did not set out a breakdown of marks for the questions within each section.

It was decided in advance (but not disclosed) by LCC that each question in each section of the tender would be marked out of 10.  This had the effect of giving different weightings to different sections of the tender which fell under the heading of a particular criterion.  This is quite complicated but an example explains it better: where 150 marks were allocated to a criterion, and there were 2 relevant sections under that criterion, the section with more questions in it would have a greater weighting than the other section (as 10 marks are given to each question).   The alternative open to LCC would have been to give each section within a criterion an equal weighting regardless of the number of questions in it.  A tenderer had asked how many marks were given to each question, but LCC declined to answer this in a meaningful way.

The High Court concluded that the questions in the evaluation table represented criteria or sub-criteria. It held that by failing to inform the tenderers of the marks for each question, LCC infringed both the obligation of transparency and the express requirement to disclose the weightings for the award criteria. It is prudent to accordingly disclose any weighting for questions (or any other part of the evaluation methodology) where this has been formulated in advance.

Mears also challenged the use of model answers which LCC created for the evaluation of the tenders.  Mears argued that the model answers should have been disclosed to tenderers as they added criteria, sub-criteria or weightings. LCC, however, argued that the model answers were not prescriptive but were prepared as general guidance and did not contain any new criteria, sub-criteria or weightings. 

The High Court considered that the guidance was intended to be, and was used by the evaluation panel as, a template for determining whether tenders provided a proper answer. The High Court found that two of the model answers introduced criteria, sub-criteria or weightings that should have been disclosed by LCC as the answer did not reasonably respond to the question, but rather suggested additional information was required.  The High Court concluded that the other model answers covered matters which would have been reasonably foreseeable and which a reasonably well-informed and diligent tenderer might have been expected to deal with in response to the relevant question. 

In general, this case suggests that it may not be necessary to disclose model answers.  However, this is provided that the answers are consistent with the questions being asked.  If the answers suggest that additional information is required that was not reasonably foreseeable, there is a risk that it may result in the unlawful introduction of additional undisclosed criteria / sub-criteria.  Accordingly, if it is intended to create model answers, they should be carefully scrutinised.  

Mears Limited v Leeds City Council [2011] EWHC 1031 (TCC)

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