appealing contract award

This update is aimed at those in the public sector who summarily dismiss the private sector organisations who have been unsuccessful with their tenders. It is also designed to help private sector organisations who are very unhappy at the manner in which they are brushed off by some public sector buyers.  In the Court of Justice of the European Communities (inlcuding Court of First Instance, the case of Alfastar Benelux v Council [2011] EUECJ T-57/09 (reported 20 October 2011) it can be seen that the public sector is obliged to state the reasons on which a contract award decision has been made. Whilst this may not seem earth shattering, it strengthens the hand of those organisations who have the courage to challenge public sector award decisions. Quite frankly, it should help the public sector to get their house completely in order when advising organisations that they have been unsuccessful. The procurement in the Alfastar case was conducted under the restricted procedure. On the 1 December 2008 the Council of the European Union (the contracting authority) sent the Alfastar-Siemens consortium a decision informing it that the contract had been awarded to another tenderer. On December 3 2008 the consortium requested further information from the Council. The Council sent a table giving the scores of the successful bidder and the scores of the consortium. At paragraph 36 of the judgment it states that “It is, therefore, clear that by acting in this way, the Council did not correctly comply with its obligation to state reasons….since it does not meet the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.” At paragraph 39 of the judgment it states “Thus, merely proividing the scores awarded in respect of the various award criteria was too abstract a form of reasoning to enable the applicant to determine the specific reasons which led the contracting authority to decide, in the exercise of its broad discretion, that the bid submitted by the successful tenderer was better from the quality point of view than that submitted by the Alfastar-Siemens consortium.” Very notably, at paragraph 40 it states that “In the absence of explanatory comments on the abovementioned bids, the scores awarded by the contracting authority, as set out in the table, represented merely the outcome of the evaluation conducted by the committee evaluating the tenders and not the evluation itself or a brief summary of that evaluation. In the absence  of information concerning the evaluation itself, it must be hald that the applicant was not in a position in the present case to understand the various scores which the contracting authority awarded to the Alfastar-Siemens consortium’s tender in respect of the different technical award criteria.” The judgement is quite complex but suffice to note that the Court Annuls the Council’s decision of 1 December 2008 to reject the tender submitted by the consortium composed of Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance – help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer.  We offer the above detail to bring to your attention  a very recent judgment and its logic. Given the Remedies Directive and public sector accountability the judgment has potential, significant implications.