Contracting authorities must now much more closely track the changes in their decision-making and the reasons for consensus scores or risk the court setting aside their award decision, even where it has not been shown that the errors wrongly deprived the claimant of the contract.

The judgment followed the court’s (rare) decision in February 2018 to maintain the suspension of the award of a contract for the provision of community services under the Healthy Child Programme to Virgin Care Services Ltd. We wrote about this judgment here.

Moderation: lessons in process and record keeping

The court said that the moderator notes failed to make clear the consensus reasons for scores awarded to the bidders:

  • They did not confirm that each sub-criteria was discussed, nor which member made the comment.
  • The use of a template requiring the panel to record “positive” and “negative” comments was unhelpful because it did not encourage evaluators to explain what were the key or influential points (ie. relative weighting of factors) of a response.
  • Conflicting points were not reconciled, and confusing edits were made where evaluators had (apparently) changed their position because of moderation discussions.
  • Comparators, such as “wider” and “better”, were used, suggesting that the bids had been compared with each other, rather than with the evaluation criteria.
  • Guidance requiring the moderation panel to review and agree to the final record of moderation was ignored.

The court said in Lancashire Care that a procurement in which the contracting authority cannot explain why it awarded the scores which it did fails the most basic standards of transparency. The court set aside the contracting authority’s decision to award the contract to Virgin without carrying out a re-scoring exercise. 

Set aside without re-scoring bids

This case shows that where the decision making process is not transparent and the contracting authority cannot “fill the gaps” in evidence, a court will set aside the contract even where it has not been shown that the errors wrongly deprived the challenger of the contract, providing that was a possibility because of the proximity of the scores. Where a contracting authority has provided explanations for what the scores should have been, the court has been prepared to re-score bids to work out whether the scoring errors deprived the challenger from winning the contract (see Energy solutions EU Ltd v NDA and Woods v Milton Keynes).

What does this mean for commissioners?

Commissioners should review their moderation processes and record-keeping to ensure that they avoid the mistakes made by the contracting authority in Lancashire Care, particularly as the case increases the risk of a decision being set-aside even if it is not shown that the errors would have made a difference to the outcome of the procurement.

How Capsticks can help

Capsticks has provided guidance and training to commissioner evaluation panels addressing the issues raised by Lancashire Care and other cases. Please contact Dylan Young or Hugh Wooster if this is of interest.