Woods Building Services v Milton Keynes Council - 
On 14 July 2015, the High Court handed down a significant Judgment which has wide-ranging ramifications for contracting authorities who fail to evaluate tenderers’ bids in accordance with the obligations imposed upon them by the Public Contracts Regulations 2006/2015, and in accordance with their published award and scoring criteria.
Read the key errors made below to find out why we must record comments correctly.
This case concerned an award procedure for a framework agreement for asbestos removal and reinstatement services.
The High Court found that manifest errors in scoring existed in several respects and that these would have had a material effect on the outcome of the process.
The Council had not made notes to justify the scoring, and the case illustrates that it is much more difficult to defend judgements in a tender evaluation where that has not been done.
The Court’s conclusion on the fourth and fifth points above provides an example of a successful claim based on manifest error in relation to a discretionary assessment – when the Court could actually see no plausible justification for any authority to make such a decision.
It can be noted, however, that this case was unusual because of the absence of contemporaneous notes that gave substantive explanations for the reasons for scoring. (The notes made largely just paraphrased the scoring criteria themselves by stating, for example, where a score was given that required a “high standard” that the tender showed a “high standard”). This was given significant emphasis by the judge. It is clear that the court will give much weight to plausible explanations of scoring that are recorded at the time, and will be less willing to interfere with scoring where such plausible explanations exist. This means that, to defend against challenges, it is very valuable to have a clear and contemporaneous audit trail relating to all significant decisions in the procedure.
Given the changes made to the scores, the effect of the decision was that Woods should have been awarded the contract.
In its later judgment dated 24 July 2015 on what remedy should be granted to Woods, the Court ordered the Council to set aside its contract award decision, amend its records to reflect the lawful tender evaluation scores, as found in the Court’s judgment, and declare that Woods had submitted the most economically advantageous tender. However, the Court refused to order the Council to contract with Woods and instead confirmed that damages was the appropriate remedy.
The Council then had to run a new procurement exercise.