Procurement Challenge – we should have won

There is little more disheartening for a bid writer or other procurement specialist, after investing time and energy into preparing the best possible bid to win a public contract, than receiving a letter politely explaining that you have been unsuccessful on this occasion but hoping that you will, all the same, bid for future contracts when the opportunity arises.

What to do when you are unsuccessful?

Once the understandable emotions of disappointment, anger and, on occasion, fury have subsided, often what is left is a sense that you should have won and that the contract has been awarded to the wrong bidder. Sometimes you will know winner, likely to be a competitor, which worsens the news, particularly if you know that your products or services are superior to theirs. “We should have won!” and “Something must have gone wrong!” are reactions we often see in this situation.

Sometimes, that is exactly what has happened. Marking complex bids is a difficult exercise. Mistakes do happen, wrong marks are awarded, and contracts are awarded to the wrong bidder.  Those are the cases where taking immediate legal action is essential and can be decisive. If a public body has made a mistake during the evaluation process, usually they would much prefer having the opportunity to put it right rather than being dragged through lengthy and embarrassing court proceedings. There are many ways that incorrect procurement decisions can been legally challenged and information explaining this can be found in our Need to Know Guide on Challenging Procurement Awards.

Scoring – valid differences of opinions

Sometimes, however, the correct reaction is “we could have won” and not “we should have won”.  And that is a crucially important distinction when considering whether a contract award is lawful.   There are situations in which the person evaluating your bid can legitimately have a different view to you or to another evaluator on the quality of your bid. You may believe a particular answer in your bid was first rate and should have received the maximum available marks. The evaluator, however, may have been less impressed and given you a lower score.  Both scores are potentially valid and the fact that the evaluator has opted for the lower score does not, itself, make the decision invalid. This is what the Courts call ‘the margin of appreciation’. The Public Contracts Regulations 2015 (or equivalent regulations in other fields) give the power to decide the mark to the evaluator, and, in many cases, that allows the evaluator to make a decision from a range of permissible marks.

Manifestly wrong scores

If the evaluator steps outside that range by, for example, awarding a mark that cannot be rationally justified (known as manifest error) or breaching the duties of transparency or equality in the Regulations, that will be unlawful.

That is exactly what happened in Braceurself Limited v NHS England which was decided this summer.

The Braceurself decision

In this case, the unsuccessful bidder believed various scores it was awarded were too low.  The difference between it and the successful bidder’s scores was just 2.25% and changing the marks awarded to a single question would change the result of the tender. The contract was for orthodontic services and one of the questions asked bidders to explain the location of their services and how these would be accessible to people with disabilities.  Braceurself’s bid had proposed the use of a ‘stair climber’ and said it had another location available when its main premises were unavailable due to emergencies such as fire or flood. One of the three evaluators fundamentally misunderstood Braceurself’s bid.  She believed they were offering a ‘stair lift’, which is a different solution to a ‘stair climber’, which she had taken the view was old-fashioned and not appropriate.  She also believed Braceurself’s other premises would be used for people with disability unable to use the ‘stair lift’ when in fact it was only to be used if its main premises were not available.

The Court explained that there was no ‘margin of appreciation’ when determining whether the evaluators had misunderstood Braceurself’s bid.  They clearly had. The next stage was for the Court to decide whether this misunderstanding had effected the mark. The Judge went through the evaluators’ contemporaneous notes and, again, decided it had.  NHS England were therefore found to have made a ‘manifest error’ in the marking of this question. Braceurself should have been awarded another 2.5% and this would have made it the winner of this public contract.

Applying Braceurself to your procurement awards

The decision in Braceurself Limited v NHS England underlines the importance of reviewing very carefully the reasons you are given if you are unsuccessful in a bid for a public contract.   It is not enough that you disagree with the marks you have been awarded. If you can show that the evaluators have misunderstood your bid, that this reduced the marks you received and that you should have won the tender, this is one of the ways you may be able to challenge the award.