Unfairly excluding bidders
A recent Court of Appeal ruling in Northern Ireland has highlighted the difficult issues that contracting authorities face when it comes to excluding bidders from procurement processes. Ian Tucker analyses the judgment.
In William Clinton v Department for Employment and Learning; Department of Finance and Personnel, the Court of Appeal in Northern Ireland decided on 13 November 2012 that a participant (“Oriel”) in a government procurement process for training services had been unfairly excluded.
The three judges were, however, split down the middle on what the Authority should have done in its process and, even, what it was obliged to do. There were two principle issues – one judge ruled for the authority on both, one against the authority on both and the other for the authority on one and against on the other.
How a Contracting Authority conducting procurement processes is supposed to know what to do in the face of such contradictions is a vexed question. It will, no doubt, vex future procuring authorities and lawyers alike.
The issues
In the tender, the NI departments asked for details of “outcomes” from bidders’ previous training courses. From the 62 bidders, 59 (or perhaps 49 – the judges couldn’t even agree on that) responded by providing qualification rates and success statistics. This was said to be in line with the accepted industry meaning for ‘outcome'. Oriel, however, interpreted the request to mean details of the types of qualification awarded from his various training courses rather than the quality or success rates. He had made no request for clarification.
When the Authority looked at this response one of four evaluators initially passed the bid but subsequently, in discussion, changed his mind (the others failed it). The authority decided it could not ask for further evidence as this would give Oriel a chance to change his bid thereby giving him an advantage over others. Oriel was excluded.
The following issues were brought to court:
- Was the bid terminology 'outcomes' sufficiently clear?
- Was the Authority obliged to seek clarification from Oriel?
The judge backed Oriel. The issues were subsequently appealed.
Judicial variety
One judge in the Court of Appeal said that the term ‘outcomes’ was uncertain, and one agreed that it was uncertain unless it had a commercial meaning (which he said it didn’t despite the number of industry respondents who interpreted it the same way). The other said that it had a clear commercial meaning and was not ambiguous.
One judge went on to say that the Authority had an obligation to ask for clarifications, the other two said that if the Authority had sought clarification then it would have been in breach of its own process (and unfair to other bidders).
So the legal outcome is that the terminology was uncertain and Oriel was unfairly excluded, but if the Authority had asked for clarification it would have been in breach.
In light of these variable answers from the leading judiciary, it will be hard for any Authority who has to decide whether to exclude or ask for clarification to know what to do.
So what does an authority do now?
Clear advice on what an Authority should do during a procurement process is notoriously difficult to give. This case does not help.
If one respondent in sixty answers a question in a different way to everyone else by failing to provide data which the Authority expected – what then? Asking for that information would seem to be a breach of fairness and transparency. But if the question could be misinterpreted by the bidder to allow him to put in less data – presumably he can’t be excluded.
However, is failure to exclude that bidder not a breach of fairness obligations to the others? If the Authority changes its marking criteria at that point to allow the bidder to stay in the process – is that not a breach of transparency?
Authorities may well scratch their heads about these problems when faced with the very real practical difficulties of fairly marking bids. Dissatisfied bidders may feel that another weapon has been handed to them to make trouble for public buyers.
Ian Tucker is a Senior Associate at Burges Salmon. He can be contacted on 0117 902 2796 or by This email address is being protected from spambots. You need JavaScript enabled to view it..