Procurement – disclosing the criteria, when will we learn?

Published: 29th October 2008

In the latest of a string of cases, the judgement in McLaughlin and Harvey v. Department of Finance and Personnel hammers home the need to ensure transparency in procurement disclosures.

The Central Procurement Directorate ("CPD") proposed a Framework Agreement for construction works to select five contractors to lead integrated supply terms to undertake projects, as the need arises, by means of a secondary competition among those appointed to the Framework Agreement.

A contract notice was published, as required, in the official journal of the European Union on 15 March 2007. The tender of the plaintiff was submitted on 5 October 2007. On 17 December 2007 they were informed that they had been unsuccessful. It was only on this occasion that they realised that the defendant had marked the plaintiff's tender alongside all the other tenders with a particular methodology involving 39 criteria, sub-criteria and even sub-sub-criteria that had not been fully disclosed.

The regulations state:

"Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non discrimination and equal treatment and which guarantee that tenders are assessed in conditions of effective competition.

It is therefore the responsibility of contracting authorities to indicate the criteria for the award of the contract and the relative weighting given to each of those criteria in sufficient time for tenderers to be aware of them when preparing their tenders."

The bidders must know all the elements or sub elements which could affect their preparation of the bid. It is accepted that this is a significant onus on contracting authority, particularly where as here they are dealing not with a single contract, but with a Framework Agreement covering 4 years and a wide range of different construction and functional tasks. Having chosen to have a Framework Agreement it is clear that the criteria and their weightings did have to be furnished to the bidders in advance to comply with the decisions of the European Court.

The 39 criteria ought to have been disclosed with their respective weightings to the bidders in advance and the action was upheld.