You need to know your RWIND from now after this recent court case!. If you are really on the ball, you may have come across this already, but as the final judgement was published in August, we have a suspicion some of us might have missed it! (I certainly did). The principles behind the judgement are important though, and whilst there is nothing totally new here, public procurement professionals should note the result, and a new acronym for us.
Healthcare at Home lost a tender let by the Common Services Agency, way back in 2010, for the provision of medical services to health authorities in Scotland. The firm was the incumbent supplier, but lost the competition, and has pursued legal action through various courts since then. At each stage, they have been unsuccessful, ending up in the summer in the UK’s Supreme Court.
The firm had a number of complaints, but in particular, it complained that the criteria in the invitation to tender were insufficiently clear, and that the reasons given to it for the rejection of its tender were unclear and lacking in detail.
Taking the second point first, the Court confirmed what we have generally been applying as the “rules” in public procurement for some time. The feedback to suppliers should inform, “unsuccessful bidders of the relative characteristics and advantages of the successful bid as well as the name of the successful bidder.”
This was in line with an earlier decision of the European Court of First Instance. In this case, the reasons given to the firm had been adequate in that it had been informed of the relative advantages and characteristics of the winning bid – they had no real doubt as to why its bid had been unsuccessful. So good news, contracting authorities don’t have to give every detail of the evaluation process.
On the first point, that the criteria were not clear enough, the judges had fun in their published judgement here talking about the “man on the Clapham Omnibus,, who in legal terms is the “spokesman of the fair and reasonable man.” But it is the court which has to apply that standard to a case in question, even if they put themselves in the shoes of that man. From the judgement:
“The court’s decision will involve it placing itself in the position of the reasonably informed tenderer, looking at the matter objectively, rather than, as occurred here to a degree, hearing evidence of what such a hypothetical person might think … Although different from an orthodox exercise in contractual interpretation, the question of what a reasonably well-informed and normally diligent tenderer might anticipate or understand requires an objective answer, albeit on a properly informed basis. Just like those other juridical creations, such as the man on the Clapham omnibus … the court decides what that person would think by making its own evaluation against the background circumstances”.
So the court in future judgements will not be interested in how specific tenderers interpreted the tender documents. Rather, the court will assess how a reasonably informed tenderer was likely to interpret it. It means contracting authorities won’t suffer because one bidding firm made some silly interpretation. But equally, the authority must make sure that a reasonable bidder would arrive at a clear view of what is really needed. All very sensible. But I guess that’s why these judges are sitting in the Supreme Court!
The final point to remember from this case is that we have another acronym or phrase to use that will impress people outside the public procurement world. Just say, as the Supreme Court judges did, “oh yes, we often consider what the RWIND will think of our tender.”
You know – the RWIND – the reasonably well-informed and normally diligent tenderer.