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

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

3. 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

4. Appropriate Training - General Principles1
Equal Treatment 4
Mutual Recognition 2
Non-discrimination 5
Proportionality 3
Transparency 6
Good Administration

5. 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

6. 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

7. 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”

8. 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)

9. 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

10. 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

11. 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

12. 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

13. Questions? Fergal Ruane Partner, Projects & Infrastructure
July 10, 2019
Fergal Ruane
Partner, Projects & Infrastructure
Questions?