Time to explain yourself!

A judge has issued a warning to contracting authorities who might be tempted to minimise the amount of paperwork they keep particularly where they fear that a high profile procurement exercise might be challenged. Helen Prandy reports.

In finding in EnergySolutions EU Limited v Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) that a contracting authority had made “conscious decisions” in relation to sparse record keeping a High Court judge noted that serious consideration appeared to have been given to restricting the keeping of contemporaneous records of evaluation because it was known that these would be disclosable in litigation. The court took the view that if the evaluation process is performed in accordance with the obligations under the Regulations then they would present no danger to the Authority because they would constitute an ‘audit trail of the decision making'.

He also went on to find that a proposed destruction of notes relating to the evaluation was extremely worrying given the express obligations of transparency on public authorities under the Regulations.

In the absence of adequate contemporaneous documents a court is forced to rely on the recollection of witnesses.  Documents may be embarrassing but the memory of witnesses is extremely unreliable and is just as likely to lead to an ‘embarrassing’ revelation. In this most recent case the witness most closely involved with the evaluation admitted on cross examination that he did not accept that inconsistency in evaluation of bids might amount to unequal treatment.

The judge found the almost complete absence of documents relating to a critical dialogue phase of the procurement and a reliance solely on the memory of witnesses to “verge on the incredible”.

The case arose under the 2006 Regulations and there is a requirement now under Regulation 84(8) of the 2015 Regulations to keep “sufficient documentation to justify decisions taken in all stages of the procurement procedure…”  and to do so for a period of at least 3 years from the date of the award.

This case is not the first where a deliberate failure to keep documents has created problems for a contracting authority.  However tempting it might be it is always far better to have a clear audit trail of reasons for evaluation decisions at every stage, including moderation, and for that audit trail to be in writing.

Helen Prandy is a Principal Associate at Mills & Reeve. She can be contacted on 01223 222344 or This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the firm’s Procurement Portal.