Is a contracting authority obliged to disclose its evaluation methodology?

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We look at a case heard recently by the European Court (Case C 6-15 Dimarso) where the court was asked to decide on whether the contracting authority had a duty to disclose its full evaluation methodology as well as the award criteria.

In this case (Case C 6-15 Dimarso), the European Court was asked by the Belgian Court to rule on whether Directive 2004/18 required a contracting authority to disclose its evaluation methodology to bidders. This Directive is now superseded by new Directive 2014/24 (implemented here by the Public Contracts Regulations 2015 (PCR 2015)), but there has been little change in this area meaning that the principles decided in this case are still relevant for contracts being procured now.

The contracting authority here was a Belgian housing authority which advertised for a provider of housing survey services. The published award criteria were “50/100 Quality, 50/100 Price”. An unsuccessful bidder obtained evidence that the evaluation team had evaluated on the tender on basis of “high/medium/low” judgments rather than scoring 0-50 points for each criterion. It brought a claim alleging that this this method had not been disclosed and that therefore this was a breach of the duty to be transparent.

Helpfully for contracting authorities, the Court held that there is no requirement in Article 53 of Directive 2004/18 to disclose the evaluation methodology, unless the methodology used has the effect of altering the published award criteria. The Court interpreted the two “50/100” weightings not as a promise to score each element out of 100 rather than as a statement that each criterion bore equal weight. Helpfully too, the Court commented that the contracting authority was entitled to have some leeway in how it evaluated tenders and that “it may structure its own work of examining and analysing tenders”. On the other hand, the Court expressly warned against the devising of evaluation methodology very late in the day, once tenders have already been opened.

Comment

While the case is clearly helpful to contracting authorities, careful thought is still needed around whether the evaluation methodology should be disclosed upfront. Particular care needs to be taken that the methodology adopted does not alter the stated award criteria, as this will be a clear breach of transparency. Likewise, setting the evaluation method once bids have been opened risks a claim for discrimination.

In the new Directive and the PCR 2015, there is now a new obligation to make procurement documents (which is a very wide definition that could potentially catch evaluation methods) available electronically from the date of the OJEU notice. While we have had CCS guidance suggesting that this obligation should generally be interpreted as an obligation to publish procurement documents electronically as and when they become available, it is possible that a bidder could use this obligation to argue that the methodology falls within the definition of “procurement documents” and therefore that it ought to be disclosed.

To read the full judgment, click here.

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