03/07/2018
Lancashire Care NHS Foundation Trust and Anor –v- Lancashire County Council [2018] EWHC 1589 (TCC) [1]
A recent High Court decision provides useful guidance on the extent to which notes of moderation meetings should track the thinking of the evaluation panel and enable tenderers to scrutinise the marks awarded with reference to content of the tenders, the evaluation criteria and reasons provided by the contracting authority.
The case concerned a light touch regime procurement, run by Lancashire County Council, relating to the "Healthy Child Programme". The contract was for public health nursing for 0-19 year olds, over a period of up to 5 years and worth an estimated £104 million. Two NHS Foundation Trusts were incumbents, and lost out - just, on both price and marks - to Virgin Care. They issued legal proceedings and the contract award process was suspended pending the decision in this court hearing[2].
The case is interesting because it suggests authorities must be able to explain how their thinking process evolved during the moderation process. In a number of other cases the courts have been slow to criticise a lack of reasons between initial evaluation sheets and the final decision[3] and have seen nothing wrong with a lack of collective discussion, providing the panel confirmed they were content for the mode score to be used as the consensus score[4]. However, other recent court decisions have placed emphasis on the need for a thorough audit trail and, in particular the need to document reasons behind the authorities' scores and retain all of the paperwork[5].
In the Lancashire case, the five evaluators on the Lancashire County Council evaluation panel attended a moderation meeting at which one individual took notes. The individual appears to have kept notes which attempted to summarise the discussion as it developed, but the overall effect of this was that the notes failed to:
- Make it clear
- that each bullet point (i.e. each sub-criteria) was discussed
- which bullet point the positive and negative points related to
- which evaluator had made which point
- Reconcile points of disagreement
- Be a complete record of points as some were edited out for unknown reasons
- Be consistent in identifying key points
- Segregate the moderation discussion from a subsequent discussion about relative characteristics and advantages - for example the moderation notes strayed into a comparison of the two bids as against each other.The Court concluded that, whilst it would not be mandatory to keep a complete record or comprehensive note of every point made on every procurement, for substantial and complex contracts the need for transparency requires contracting authorities to disclose reasons in a clear and unequivocal fashion. The Council had fallen short of the mark in this case.The Court therefore set aside the decision to award the contract to Virgin Care.
[1] Lancashire Care NHS Foundation Trust and Anor –v- Lancashire County Council [2018] EWHC 1589 (TCC), 22 June 2018
[2] In a previous hearing in this case the High Court had refused to lift the automatic suspension.
[3] See for example the ECJ General Court case T-70/05 Evropaiki Dynamiki v EMSA)
[4] Willmott Dixon Partnership Ltd v London Borough of Hammersmith and Fulham [2014] EWHC 3191 (TCC).
[5] In Energysolutions EU Ltd –v- Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC)
