Another Public Sector Flawed Tender Process

Thursday, May 12th, 2016

Another Public Sector Flawed Tender Process

The High Court of Ireland judgement in RPS Consulting Engineers Ltd v Kildare County Council (reported 15th February 2016) provides further insight into public sector flawed processes. As always, with our briefing notes, we can only scratch the surface and whet your appetite to read more. A contract was advertised for engineering consultancy services. At paragraph 5 of the judgement “The council decided, without any basis in the invitation to tender, to change the marking scheme without any apparent notice to the tenderer’s prior to the submission of their tenders, and substitute a completely different marking scheme.” The new marking scheme was a much more crude one whereby scores in each criterion were simply marked as excellent, very good, or good and so on, attracting marks of 100%, 80%, 60% and so on respectively.

The case progressed and observed at paragraph 7 a notification of award decision was sent to the applicant (RPS). It purported to set out the reasons why RPS had been unsuccessful. “The reasons were a combination of a repetition of the criteria, a repetition of the scores but phrased in terms of “good”, “very good”, and so on, and a handful of additional words, 16 in total, which contained a vague and general reference to the manner in which the preferred tenderer was superior in qualitative terms to the applicant.”

The judge observed that the author of the letters “engaged in a bold and innovative, even startling, departure from the previous, tried and trusted methodology of verbatim repetition.”  The judge then put matters into context when he said that “the letters taken together showed the same methodology that Cardozo J., in another context, called the “type tonsorial or agglutinative, so called from the shears and the paste pot which are its implements and emblem.”

RPS won the case. There were numerous flaws in the procurement process, namely, 10 flaws. At paragraph 115 of the judgement the made a number of orders, some of which require the council to take specific actions. The proceedings will be finalised at a future date.

This case will do little to allay the private sectors’ concerns that some tender evaluation processes are not conducted in a proper manner.