What we all can learn from the experience
Provision of an Expert Witness
Recently, one of Sixfold’s directors, Peter Lobl, appeared as an ex parte expert witness in a ground-breaking procurement case in the High Court in London. The case was filed by an aggrieved bidder against the Ministry of Defence claiming an erroneous bid evaluation result. The judgement established a precedent for the information which must be provided about the evaluation process in bid instructions. In addition, there were some salutary lessons for all bidders which emerged, which are summarised below.
Our Client, MLS was delighted with the result. The MLS General Counsel and legal strategist, Dr Anton Micallef, said “MLS has been awarded the contract by the court, a remarkable achievement and the result of great team work. Peter’s contribution was considerable and key to the success of our efforts.”
In November 2017, MLS filed a claim to seek remedies against the MoD over its mishandling of the evaluation of their bid for providing and procuring port and support services to British naval vessels worldwide. The procurement value was expected to exceed £400m. As the incumbent provider, MLS had enjoyed an excellent relationship with the Royal Navy, for whom they had provided these services over the previous decade.
In the re-compete of their contract, the MoD rejected MLS’s bid even though it was ranked first, had the best quality score and the lowest price in the competition. They did this because they evaluated one Pass/Fail sub-question as a Fail. However, the MOD had not disclosed to bidders in their instructions that a Fail score meant instant elimination or that a single Fail score would result in rejection of the entire bid.
MLS sought Expert Witness evidence to support its case that this was a hidden criterion and Sixfold was selected to act in this role. We had a ringside seat as MLS challenged the rejection decision in the High Court and won back the contract award.
We believe that this is only the second time in the UK that a challenge during the standstill (Alcatel) period has resulted in the challenger being awarded the contract. Previously, like most others in the profession, we had believed the best outcome you could get in a standstill challenge was either damages or the competition being cancelled and then restarted.
Firstly, we have seen a clarification for the 30-day time limit to bring a challenge to a procurement issue. The MoD argued that MLS’s challenge was out of time because the error was made in the ITT and not challenged within 30 days of the time of its release. The judge ruled that the decision to reject MLS’s tender was the actual start of the time limit period and not the date the ITT was published. So, we need to carefully assess the time a court would accept we could have reasonably known about a problem before assuming a challenge is out of time.
Secondly, we have learned that any error or ambiguity can be challenged, however insignificant it may appear at first sight. If it is possible that a requirement could be interpreted ambiguously by tenderers then we could have a case. So, we need to be prepared to “nit-pick” and forensically examine the details if a decision looks “wrong”.
Finally, we should remember the very wide scope available to challenge any procurement decision. We have seen that the mere threat of legal proceedings can bring more detailed disclosure and changes to process. We have even experienced contract awards being revoked, based on the threat of a formal challenge. We need to look out for any instances of unfairness, e.g. non-transparency, unequal treatment, discriminatory criteria, hidden criteria and manifest errors. If we find them, then we need to act quickly.
Of course, if you are not certain of the way forward, then please ask Sixfold to come and chat to you about what you need to look for. The findings will be your bullets should you wish to fire them at an Authority who has not used the procurement processes correctly
Moreover, if you feel your team could benefit from a more detailed understanding of the ammunition for challenge, you might like to meet our Expert Witness. Sixfold has a one-hour team briefing on this topic, looking at the potential for challenge from the bidder’s viewpoint. Please give us a call on 01227 860375 if you think this would be of value.