European General Court provides useful ruling on debrief scores
On 20 October 2011, the General Court annulled a decision of the Council of the European Union to reject a consortium’s tender for an IT maintenance services contract because it did not provide adequate debrief information to the losing bidder.
On 1 December 2008, the Council sent the Alfastar-Siemens consortium a decision informing it that the contract had been awarded to a rival bidder. The Council provided a table showing a breakdown of the scores awarded to the successful tenderers and the unsuccessful tenderers. However, the Council refused to provide any further details to explain why any particular score had been given against any particular award criterion.
The General Court found that the Council had not provided sufficient reasons for its decision. A simple table summarising the scores without any further or explanation of the evaluation itself was not enough to satisfy the Council’s debrief obligations. The scores merely represented the outcome of the evaluation and not the evaluation itself (or even a brief summary of that evaluation). The unsuccessful tenderer was therefore unable to understand why the Council concluded that the successful tender was better in terms of price/quality.
The Court ruled that on the basis of the information provided by the Council, it was impossible to determine whether the Council’s decision contained a manifest error of assessment. On that basis, the Court annulled the Council’s award decision on the basis of inadequate reasoning.
However, the Court also ruled that the consortium’s claim for €2.9M damages was premature.
Commenting on the case, Douglas McLachlan, an Associate in Biggart Baillie LLP’s Procurement Team specialising in contentious procurement said:
“This case highlights the fundamental importance of contracting authorities providing good debrief information to unsuccessful tenderers at the end of a public procurement procedure. Bidders must be left in a position where they fully understand the reasons for the award decision, and the characteristics and relative advantages of the successful tender. Simply providing a list of scores as though they’re self explanatory is not enough and leaves the award decision open to challenge.”
Link to the case:
Case T-57/09 - Alfastar Benelux SA v Council of the European Union, judgment of 20 October 2011
For more information please contact Colin Miller or Douglas McLachlan.
The information contained in this article is given for general information only, reflects the current law on the date of the article, and does not constitute legal advice on any specific matter.