Woods Building Services v Milton Keynes Council

In public procurement, published award criteria must be clear, precise and unequivocal. Contracting authorities must apply them transparently and treat comparable tenders equally. There is no margin of appreciation on compliance with those duties. By contrast, evaluative scoring attracts a margin of appreciation. The court does not rescore tenders and intervenes only for manifest error, broadly equivalent to Wednesbury unreasonableness. A material failure to satisfy a published requirement must be scored according to the authority’s own criteria. Where those criteria require a zero score, a higher score is a manifest error. Unlawful use of confidential tender material by a former employee does not, without more, require automatic disqualification.

The claimant, an existing asbestos-removal contractor, challenged the defendant council’s procurement exercise for an £8 million, four-year, single-supplier framework agreement covering asbestos removal and reinstatement services. Although the claimant submitted the lowest-priced tender, the council selected European Asbestos Services after awarding it substantially higher quality scores. The claimant alleged breaches of transparency and equal treatment, manifest errors in the evaluation of twelve quality questions, and plagiarism arising from the use of its former employee’s tender material. The central issues were whether the evaluation complied with the published criteria and whether the identified errors or breaches materially affected the result.

Disposition. The claimant established several manifest errors and breaches of the duties of transparency and equal treatment. The court found that the adjusted scores should produce a different result, with relief reserved pending calculation of the revised weighted scores and further submissions.

1. The published award criteria were a matter of law. They had to be clear, precise and unequivocal, allowing reasonably well-informed and diligent tenderers to interpret them alike. The court applied the principles stated in SIAC Construction Ltd v County Council of the County of Mayo [2001] ECR1-7725, Commission v The Netherlands [2013] All ER(EC) 804, Clinton (t/a Aureal Training Services) v Department of Employment and Learning and Another [2012] NICA 48 and Easycoach Ltd v Department for Regional Development [2012] NIQB10. No margin of appreciation applied to transparency or equal treatment.
2. Manifest error concerned evaluative judgment and attracted a margin of appreciation. The court followed the approach in Lion Apparel Systems v Firebuy Ltd [2007] EWHC 2179 (Ch) and Letting International Ltd v London Borough of Newham [2008] EWHC 158 (QB). The court was not to conduct a remarking exercise or substitute its own view. A manifest error required a clearly made error which was material and capable of making a real difference to the outcome.
3. The council’s scoring criteria required a zero score for a significant or substantive failure to meet the requirements. The court therefore reduced EAS’s scores to zero for the method statement, mobilisation, defect-correction and waste-materials answers, which omitted important contractual requirements.
4. The council breached transparency and equal treatment by marking Woods down because its proposed project leader was not expressly described as dedicated, a requirement that had not been published. Woods’s score was increased from 6 to 8. Woods’s health and safety score was increased to 10, and EAS’s communication and environmental scores were reduced to 6. The agreed correction to Woods’s environmental score from 4 to 6 was also recorded. Most challenges seeking higher scores within the evaluative margin failed.
5. The evaluator conflict, inadequate contemporaneous notes and absence of model answers were unsatisfactory background matters but did not independently establish a material breach. The former employee owed confidentiality obligations regarding Woods’s tender information despite the absence of a written employment contract. The plagiarism finding created no separate free-standing ground requiring disqualification, although it could be relevant if the competition were rerun.