Willmott Dixon Partnership Ltd V London Borough of Hammersmith and Defendant Fulham

In public procurement, a contracting authority must evaluate tenders objectively, transparently and equally, using disclosed criteria directed to identifying the most economically advantageous tender. The court’s review is limited and does not involve re-marking tenders. Intervention is justified for manifest error, unfairness, unequal treatment or misuse of power. Matters concerning a proposed delivery model may be evaluated, but the bidder’s general ability to perform belongs at the selection stage. A consensus methodology may adopt a modal score or a majority-approved score where the panel agrees to that approach. Where the claim is governed by the Public Contracts Regulations 2006, no parallel implied contract arises.

The claimant, an incumbent service provider, unsuccessfully tendered for a local authority’s repairs and maintenance contract. It alleged breaches of the Public Contracts Regulations 2006, EU procurement principles and an implied contract, including use of undisclosed criteria, improper consideration of personnel and subcontractor performance, unequal scoring, defective consensus decision-making and failure to verify the successful tender.

The claim was tried in two stages, with this judgment determining liability. The central questions were whether the evaluation process contained manifest errors or other breaches of equality, transparency and objectivity, whether an implied contract arose, and whether any breach caused recoverable loss.

1. Standard of review. The authority owed enforceable duties under regulations 47A and 47C of the Public Contracts Regulations 2006. It had to conduct an objective and transparent evaluation by reference to sufficiently disclosed criteria, treat tenderers equally and avoid manifest error. The court applied the limited review described in Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch).
2. Criteria. The authority could consider the claimant’s late proposal to use a significant subcontractor because that formed part of the proposed delivery model. It could not assess the subcontractor’s past performance or the bidder’s general ability to perform. The requirement for substantial change in service delivery was not an undisclosed award criterion. The ICT evaluation was sufficiently connected with the disclosed requirements.
3. Consensus scoring. The requirement that scores be decided by consensus did not require substantive discussion of every score. The panel could adopt a modal score without further discussion where it agreed to do so, and could adopt a score approved by majority vote. The same approach was applied to all bidders.
4. Manifest error and verification. One manifest error was carried through to the scoring, but it would not have changed the result. The evidence did not establish systemic unfairness, unequal treatment or insufficiently sensitive criteria. The authority was not required to re-test the successful bidder’s ordinary working practices after pre-qualification. The verification principle in EVN v Austria Case C-448/01 concerned materially different circumstances.
5. Implied contract and damages. Following J Varney & Sons v Hertfordshire CC [2010] EWHC 1404 (QB) and JBW Group Ltd v Ministry of Justice [2012] EWCA Civ 8, no implied contract arose alongside the statutory regime. Causation and loss of chance therefore did not arise. The alternative damages discussion was unnecessary to the result.
6. Disposition. The claims were dismissed. There was judgment for the defendant.