What does ‘fail’ mean anyway? MLS (Overseas) Limited v The Secretary of State for Defence
Just before Christmas, the High Court (Mrs Justice O’Farrell) delivered judgment in MLS (Overseas) Limited v The Secretary of State for Defence  EWHC 3389 (TCC). There had been some anticipation that, as the first post-Energy Solutions ¹ case in which allegations of manifest error formed a central part of the argument, the judgment might shed some light on what approach a court would take to the higher degree of scrutiny arguably indicated by Energy Solutions. In the end, however, not much could be gleaned from the court’s judgment in this respect. The more interesting findings concerned transparency and the implications of any vagueness in an ITT’s description of the evaluation process. The MoD’s ITT had failed to spell out the consequence of failing a certain pass/fail criterion, which the court found ultimately invalidated the rejection of MLS’ tender on that basis. In that respect, the judgment joins a line of cases highlighting to contracting authorities the pitfalls of a lack of clarity in an ITT. For bidders, however, the message is perhaps less clear. The court rejected an argument that because the ITT itself had not been challenged (and a challenge would now have been out of time) it was not open to MLS to challenge the award on the basis of an ambiguity in the ITT. This seems to at least leave room for the question whether it is always best to challenge an ITT promptly, or whether in some cases it may well be opportune to retain some vagueness as a source of a potential future challenge to the award decision.
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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.