Introduction
A significant ruling was recently handed down by Justice Freedman following an expedited trial in the Technology and Construction Court concerning a procurement dispute. Working on Wellbeing Ltd, trading as Optima Health ("Optima"), contested the Department of Work and Pensions' ("DWP") decision to exclude their tender for a call-off contract from a framework agreement, to provide occupational health and employee assistance programme services (the “Services”). To grasp the essence of this judgment, it's first essential to delve into the background.
The Dispute
At the core of the dispute was DWP's rejection of Optima's bid due to its failure to comply with a non-negotiable requirement stipulated in the framework agreement governing the Services. Despite this requirement prohibiting the bidders from making charges exceeding those set out in the framework, Optima submitted a pricing schedule that surpassed the framework prices. Consequently, although Optima would have otherwise secured the contract as the winning bidder, DWP deemed its tender non-compliant and excluded its bid. DWP argued that this exclusion was necessary to uphold transparency and equal treatment principles, ensuring fairness for the other compliant bidder in the tender process.
The Judgment
The general rule is that authorities have a broad discretion when making decisions relating to a public procurement process, provided that a decision is not offensive to the principles of transparency, equal treatment, non-discrimination, and proportionality, set out at Regulation 18 Public Contracts Regulations 2015.
Therefore, in this case, the key question for the court was whether the decision to exclude Optima did breach Regulation 18, or not.
On consideration of the facts, Justice Freedman upheld DWP’s exclusion of Optima’s bid, highlighting transparency and equal treatment of bidders as pivotal factors in the decision. The Court affirmed that DWP was justified in its action to exclude Optima, as the procurement documents did sufficiently meet the objective test of whether the Reasonably Well Informed and Normally Diligent (“RWIND”) tenderer could have understood, from the drafting, that failure to submit prices within the stated limits would result in exclusion.
The judgment also reiterated that the decision to exclude Optima based on its non-compliance was well within the parameters of DWP’s discretion. The Court confirmed that DWP did not make an arbitrary or disproportionate decision to exclude based on the relatively small pricing infringement, particularly in light of the “serious risk of litigation” and challenges from either compliant or non-compliant tenderers demanding equal treatment.
Key Takeaways
Several important lessons emerge from the judgment, including:
- The significance of bid compliance, where bidders must ensure that they adhere to all tender requirements, to avoid exclusion;
- The importance of the principles of transparency and equal treatment;
- The authority’s need to mitigate the risks of challenge arising where there is an exclusion of a bidder who would otherwise have won the contract;
- The necessity of clear and transparent drafting that the RWIND tenderer test is met, and that all bidders can understand the tender documents; and
- The importance of meticulous record keeping to prevent the avoidable issues seen in this case around the evaluation record discrepancies.
Conclusion
The judgment underscores the delicate dance between compliance and program efficacy in the procurement process. As authorities navigate procurement, they must heed the lessons to be learnt from this case and tread carefully, ensuring transparency and equal treatment at every stage of the tender process.
With many thanks to Abbie Green (trainee solicitor) for her assistance in writing this article.