Best Practice in Tender Evaluation CMG - 22 May 2019 Fergal Ruane, Partner, ByrneWallace

Evaluation Team Choose competent personnel with sufficient experience and expertise of the subject matter of the contract Ensure Evaluation Team receives appropriate training

Appropriate Training Evaluation Team must be familiar with: Evaluation Procedure and Scoring Mechanism Award Criteria Sub-criteria Minimum scores Best practice is to have Evaluation Team: sign the evaluation procedures prior to deadline for receipt of tenders and confirm no conflict of interest

Appropriate Training - General Principles 1 Equal Treatment 4 Mutual Recognition 2 Non-discrimination 5 Proportionality 3 Transparency 6 Good Administration

Appropriate Training 3 What can and what cannot be considered by an evaluator? In general, Evaluation Team should only assess what is included in the tender. Confidentiality and Security Requirements Regulation 21 ▪ Confidentiality Obligation Security Arrangements ▪ both physical and electronic

Appropriate Training 4 Clarifications – Obligatory or discretionary? Abnormally Low Tenders Regulation 69 sets the out steps which must be followed by Contracting Authority if the price or costs in a tender appears to be abnormally low Cannot exclude a tenderer for suspected ALT without first giving the tenderer the opportunity to explain the ALT Other Types of Clarifications No express obligation in Directive/Regulation on CA to clarify Reg 56(4) gives the CA discretion to clarify However, CA might be under an obligation to clarify depending on: the wording of the tender documents and/or the EU General Principles of Public Procurement

Award Criteria Regulation 67 of S.I. 284 of 2016 “a contracting authority shall base an award of public contracts on the most economically advantageous tender.” “The most economically advantageous tender …… shall be identified on the basis of the price or cost …. and may include the best price-quality ratio, which shall be assessed on the basis of criteria ….. linked to the subject matter of the public contract in question”

Evaluation Tips Equality of Treatment /Incumbents – Obligation on Contracting Authority to level the playing field as best it can Consider and disclose how you are going to assess options within the contract (supports future use of review clause derogation)

Evaluation Tips 2 Give sufficient attention to Price/Quality Split: Tailor Award Criteria and weightings to promote targeted tenders Don’t waste or render award criteria redundant by facilitating “bunching” Gaming – carry out dummy evaluations to avoid this and prohibit “zero”, “nil” or “included in another line item” entries Consider minimum scores for priority requirements and to mitigate against tenderer buying the contract

Record Keeping Clear paper trail of what authority does Courts increasingly critical of gaps in documentation Ensure paper trail supports decisions made Relevant factors considered No irrelevant factors considered Who made decision Complied with own rules

Lack of records A number of examples in recent years where lack of documentation was an issue Increasing range of judgments where paper trail/absence of paper trail has been relevant Issue now being frequently raised in Irish courts

Lack of records - relevant case law 3 recent cases: Energy Solutions v Nuclear Decommissioning Authority (2016, UK) – Court critical of lack of records/ destruction. Somague & Wills v TII (2016, Irl) – Evaluation records helpful to CA FP McCann v Department for Regional Development (2016, NI) – Not minuting decision detrimental to CA

Questions? Fergal Ruane Partner, Projects & Infrastructure July 10, 2019 Fergal Ruane Partner, Projects & Infrastructure fruane@byrnewallace.com + 353 1 691 5259 www.byrnewallace.com Questions?