Award
Criteria
Q1. When and how much of a marking
scheme needs to be disclosed to contractors?
A1. In McLaughlin & Harvey Limited
– v - The Department of Finance and Personnel (No. 2)
[2008] NIQB 91 the Court held that the contracting authority
did not set out the criteria to be taken into account
at award stage in sufficient detail, nor did it set
out the appropriate weighting as required by the Regulations.
As a result of that finding, the Court went on in McLaughlin
& Harvey Limited v Department of Finance and Personnel
(No. 3) [2008] NIQB 122 to find that the award was invalid.
In Henry Brothers (Magherafelt) Limited and Others v
Department of Education for Northern Ireland (No. 2)
[2008] NIQB 105 the Court held that the contracting
authority did not take into account a fundamental aspect
to determine which was the most economically advantageous
tender. In that case although the contracting authority
asked tenderers to provide what mark-up they would apply
to costs, they did not ask contractors what their base
costs would be. As above, the Court then held the award
procedure was unlawful.
This issue was also dealt with in the ECJ case of Lianakis
-v- Dimos Alexandroupolis ([the 'Lianakis' Case) in
2008. In this case the court addressed the issue of
use and disclosure of weightings and sub-criteria in
applying award criteria. The authority in this case
had devised weighted sub-criteria following receipt
of tenders.
The court held that the authority was not permitted
to do this. The court said that an authority could not
apply weightings to undisclosed sub-criteria.
Q2. Can an Employer take resources
into account when awarding a contract?
A2. The Award must be on the lowest
price or MEAT. therefore it will be necessary to show
that the resources of the tenderer will in some way
affect the financial position of the employer if they
are to be taken into account at award stage.
Lianakis & Ors v Dimos Alexandroupolis & Ors C–532/06
highlighted that the only criteria which can be taken
into account at award stage are criteria which are linked
to determining which offer is the most economically
advantageous from the point of view of the contracting
authority and not criteria which are essentially linked
to the evaluation of the tenderers ability to perform
the contract in question. In that case criteria such
as past experience, manpower and equipment and the ability
to perform a project by the deadline were all held to
be criteria which could be taken into account at selection
stage i.e. stage one and stage two but not award stage,
stage three. As a result the award of the contract was
declared invalid. |
