HT-2024-000271 - [2024] EWHC 3039 (TCC)

Fecha: 13-Nov-2024

The Scoring Challenge: The Law

The Scoring Challenge: The Law

50.

The second main limb of RHH’s challenge concerns the scores attributed by OGL to RHH’s bid.

51.

Regulation 18 of the 2015 Regulations imposes on contracting authorities obligations of equal treatment and transparency:

(1)

Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

(2)

The design of the procurement shall not be made with the intention of excluding it from the scope of this Part or of artificially narrowing competition.

(3)

For that purpose, competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.

….

52.

The applicable legal principles to a scoring claim were set out by O’Farrell J in Siemens v HS2 at [135] to paragraphs [146]. At paragraph [146], O’Farrell J held that the approach to be adopted in respect of a scoring challenge is as follows:

(i)

The tender documents must be construed objectively on the basis of the standard of the RWIND tenderer.

(ii)

The court must consider whether the assessment criteria and tender process set out in the tender documents were applied objectively, uniformly, without discrimination or consideration of undisclosed criteria, and in a proportionate manner to all tenderers.

(iii)

The court must consider whether there was any manifest error in the tender evaluation exercise, such as a failure to consider all relevant matters, consideration of irrelevant matters, or a decision that is irrational in that it is outside the range of reasonable conclusions open to the utility.

(iv)

The court must not substitute its own assessment for that of the contracting utility. Its role is limited to a review of the process to determine whether the published rules of the procurement were followed in compliance with the regulations.” (Footnote: ⁵)