High Court clarifies test of manifest error in public procurement

16 Jul 2015

On 14 July 2015, Coulson J handed down judgment in a challenge to a local authority’s scoring of the qualitative aspects of the first and second placed bids in a tender process for asbestos removal services conducted under the Public Contracts Regulations 2006. The claim involved detailed challenges to the scores that the contracting authority had awarded to each of the first and second placed bids in respect of each of the 12 published quality sub-criteria in the procurement process – a challenge to 24 scores in total. The scores were challenged on the grounds of manifest error of assessment as well as breach of the general principles of transparency and equal treatment.

Coulson J held that it was necessary first to analyse the Claimant’s scoring complaints in order to ascertain whether, regardless of its formulation, the claim was in substance one of (i) breach of transparency/equal treatment or (ii) manifest error. He noted that the contracting authority does not have any discretion in relation to (i), but enjoys a wide margin of appreciation in relation to (ii). His Lordship reaffirmed his indication in the BY Development v Covent Garden Market Authority [2012] EWHC 2546 (TCC) that the “manifest error” test derived from EU law is equivalent to the English law test of Wednesbury unreasonableness.

Coulson J found that – subject to a couple of substantive equal treatment points – the majority of the Claimant’s complaints in this case were, in substance, claims of manifest error. He went on to undertake a detailed review of each of the 24 scoring complaints and concluded that the equal treatment claims as well as a number of the manifest error claims were well founded. He considered that adjustments were required to 8 out of 24 scores, which would have the effect of moving the second placed bid into first place.

The full judgment is available here Woods Building Services Ltd v Miton Keynes Council.

Ligia Osepciu acted for the Defendant, Milton Keynes Council.