Energy Solutions v Nuclear Development Authority (No.2) Liability [2016] EWHC 1988 (TCC)
Citation: Energy Solutions v Nuclear Development Authority (No.2) Liability [2016] EWHC 1988 (TCC)
Rule of thumb: When public services are being contracted out, what are the legal obligations? Where any public services are being contracted out then formal records have to be kept of the evaluation process for the different applicants and the reasoning process for why certain people were awarded the contracts. If these records are not kept and the people who made these decisions are not called as witnesses then applicants can rightfully assume that their application was not given proper consideration.
Judgment:
–"…..without in any way departing from the statements of principle that apply in this situation generally or applying a different standard, that procurement proceedings have a particular aspect to them that should be borne in mind. This is that there is an express obligation of transparency upon the contracting authority. On occasion, and without in any way shifting the burden of proof, contracting authorities and their evaluators may be required to justify or explain what has been done when evaluating tenders, particularly if a score given on a particular requirement has been changed by the SMEs themselves during the evaluation process. Reasons have to be recorded and the record is important; it helps compliance with the obligation of transparency. Such explanation is made far more difficult for a contracting authority if the directly relevant personnel who were centrally involved in that process are not called as witnesses. This justification or explanation is something that will or may arise if the material available shows a prima facie manifest error. That is probably simply a different way of stating the third of Brooke LJ's principles in Wisniewski."On the trial on liability (EWHC 1988), Mr Justice Fraser held that the NDA failed to award the contract to the tenderer submitting the most economically advantageous tender in accordance with the criteria it had established, which was therefore in breach of the Directive and the Regulations'.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.