QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| J VARNEY & SONS WASTE MANAGEMENT LIMITED
|- and -
|HERTFORDSHIRE COUNTY COUNCIL
Mr John Howell QC and Mr James Segan (instructed by Chief Legal Officer, Hertfordshire CC) for the Defendant
Hearing dates: 8th - 10th, 12th, 15th, 18th, 19th and 24th March 2010
Crown Copyright ©
The Hon. Mr Justice Flaux :
Summary of the complaints
(1) The Council failed to disclose the criteria, sub-criteria and weightings which would be applied when determining which of the tenders was the most economically advantageous.
(2) The Council applied criteria, sub-criteria and weightings which were inconsistent with the information which it had disclosed.
(3) The Council decided which contracts should be awarded to which tenderers by applying an overriding criterion of financial strength or stability, and therefore used a selection criterion at the evaluation stage.
(4) The Council negotiated with tenderers after tenders had been marked and before deciding which tenderer should be awarded which contract.
(5) Council officers did not treat tenderers equally when applying the criterion of financial stability, but chose to ignore the directions of its Corporate Services Department in the most significant case, that of Edwards Waste Management Limited ("Edwards"), and also in the case of Domestic Waste Services Limited ("DWS").
(6) The Council erroneously accepted tenders as "most economically advantageous" which included prices which were abnormally low and not sustainable over the life of the contracts.
(7) The Council was guilty of various inconsistencies and manifest errors when marking the tenders.
(8) The Council failed to enforce the commitments made by Edwards when it succeeded in winning its contracts.
(9) After the contracts had been in operation for nine months, the Council changed important terms in the contracts regarding the Recycling Incentive Bonus Scheme ("RIBS") thereby enabling contractors, especially Edwards, to earn substantially more money under the contracts. This is relied upon by Varney as evidence in support of the allegation in (6) above, but also as the basis for the second claim.
The factual background
Initial notice and selection of tenderers
"The most economically advantageous tender in terms of the criteria stated below:
1. Price. Weighting: 65.
2. Customer satisfaction. Weighting: 35."
"Hertfordshire County Council will incorporate a minimum 10 calendar day standstill period at the point information on the award of the contract is communicated to tenderers. This period allows unsuccessful tenderers to seek further debriefing from the contracting authority before the contract is entered into. Applicants have 2 working days from the notification of the award decision to request additional debriefing and that information should be provided a minimum of 3 working days before the expiry of the standstill period....The purpose of the standstill period referred to above is to allow parties to apply to the Courts to set aside the award decision before the contract is entered into."
The Invitation to Tender
"The tender analysis will be on an individual site basis although the Tenderer must indicate with its Tender its particular requirement for minimum numbers or groups of sites for which he wishes to be considered.
All submissions will be evaluated on the basis of:
2.1.1. most economically advantageous to Hertfordshire County Council (65%)
2.1.2. resources (including staff) to be allocated to the delivery of the Services and the manner in which the Tenderer proposes to provide the Services in order to deliver outstanding customer satisfaction (35%)."
"The Tenderer must also submit with its Tender in Volume II: Return Schedules:
2.5.2 details of proposed staffing and labour levels together with details of any qualifications to demonstrate technical competence, health and safety, first aid, customer care etc. Minimum numbers of staff to be permanently employed at each Site must be such that all of the requirements of the Contract are complied with, maximum quantities of material are separated for composting, recycling, reprocessing and re-use and Customers given no reason to complain about the level of service provided."
"Any queries arising from the Tender Documents which might have a bearing on the offer to be made should be raised with Mr MG Shaw as soon as possible (preferably in writing) and in any case not later than Friday 25 July 2008."
"Tenderers must complete each of Return Schedules 1 to 15 giving full details of the methods it intends to employ to carry out the particular aspect of the Service provided.
Tenderers must also complete Return Schedule 16, the Schedule of Rates, for each Site for which a tender is submitted giving the tendered Site Management Charge.
Tenderers must also complete Return Schedule 17, the summary of completed Return Schedules and other information required."
"As required under Clause 13 of the Conditions of Contract the Contractor must provide sufficient numbers of suitably qualified Staff to both carry out the Services and provide excellent Customer service at all times."
That Return Schedule then required the tenderer to set out the staffing levels for each of the sites for which it was tendering.
"The rates and prices shall include for the provision of personnel, supervision, dealing with consignment notes where required and providing all necessary documentation, consumable materials, insurance, overheads and profit and every incidental and contingent cost and charge whatsoever for compliance with the Conditions of Contract and the Specification.
THE COUNCIL SEEKS A PRICE FOR ALL ITEMS IN THE SCHEDULES OF RATES AND A SEPARATE RATE MUST BE SUBMITTED AGAINST ALL ITEMS. FAILURE TO SUBMIT SEPARATE RATES AGAINST ALL ITEMS FOR ANY PARTICULAR SITE WILL RENDER THE TENDER NON-COMPLIANT,
Items the price of which are the same must not be bracketed and the use of the word "included" against any item is not permitted.
For Sites for which a tender is not being submitted the words NO TENDER must be entered against the item for total weekly cost.
For a weekly Site Management Charge involving no payment by the Council to the Contractor or no payment by the Contractor to the Council the rate entered should be "NIL""
Changes from the 2003-2008 contracts and the RIBS
The marking of the tenders
Analysis of the tenders
Clarification of the Fourways bid
Clarification of the tenders of other successful tenderers
The debriefing with Varney
Correspondence after the meeting and prior to the first Claim Form.
Proposed change to the RIBS bonus scheme
Alleged breach of obligations of transparency (Complaints (1) and (2))
"42 In Commission of the European Communities v French Republic (Case-C-340/02)  ECR 1-9845, para 34 the European court said that -
"The principle of equal treatment of service providers, laid down in. . . the Directive, and the principle of transparency which flows from it . . . require the subject matter of each contract and the criteria governing its award to be clearly defined."
43 The rationale of the principle has been expressed in a number of different ways.
(1) First, it enables the contracting authority to satisfy itself that the principles of equal treatment and of non-discrimination on the grounds of nationality have been complied with: Telaustria Verlags GmbH v Telekom Austria AG (Case C-324/98)  ECR 1-10745, para 61; SIAC Construction Ltd v Mayo County Council (Case C-19/00)  ECR 1-7725, para 41 and Commission of the European Communities v French Republic (Case C-340/02)  ECR 1-9845, para 34.
(2) Second, it facilitates competition: Telaustria Veriags GmbH v Telekom Austria AG (Case C-324/98)  ECR 1-10745, para 62; Parking Brixen GmbH v Gemeinde Brixen (Case C-458/03)  ECR I-88, paras 50, 52 and Impresa Portuale di Cagliari Sri v Tirrenia di Navagazione SpA (Case C-174/03) (unreported) 21 April para 75, per Advocate General Jacobs.
(3) Third, it enables the impartiality of procurement procedures to be reviewed: Telaustria Veriags GmbH v Telekom Austria AG (Case C-324/98)  ECR 1-10745, para 62 and Impresa Portuale di Cagliari Sri v Tirrenia di Navagazione SpA (Case C-174/03), para 75, per Advocate General Jacobs.
(4) Fourth, it precludes any risk of favouritism or arbitrariness on the part of the contracting authority: Commission of the European Communities v CAS Succhi di Frutta SpA (Case C-496/99 P)  ECR 1-3801, para iii.
(5) Fifth, it promotes a level playing field by enabling all tenderers to know in advance on what criteria their tenders will be judged and those criteria are assessed objectively; SIAC Construction Ltd v Mayo County Council (Case C-19/00)  ECR 1-7725, para 38, per Advocate General Jacobs."
(1) Were the Return Schedules award criteria as contended or, at most, as the Council submits, sub-criteria?
(2) Whether they were criteria or sub-criteria, was the Council in breach of the Regulations in failing to state expressly in the ITT that these were criteria or sub-criteria and what the weightings were which were to be attached to each of them?
(3) Is any complaint Varney has time barred under Regulation 47(7) because the claim was not brought within 3 months from the date when grounds for the bringing of the proceedings first arose?
Criteria or sub-criteria?
"In a helpful case-note written on the Lianakis case by Professor Sue Arrowsmith which has been published on the Themis procurement law portal, she explained that "entities that wish to use sub criteria must state them in the notice or documents – otherwise they must simply apply the award criteria in a general discretionary manner with out using the specific sub criteria at all". As I will explain, this was the same approach adopted by the Court of Appeal in the present case when deciding that there was a serious issue to be tried on this point."
Was there a breach of the obligation of transparency?
"…Community law does not preclude a [contracting authority] from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents or the contract notice were prepared, provided that that decision:–
-does not alter the criteria for the award of the contract set out in the contract documents or the contract notice;
-does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation;
-was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers."
"However, that directive does not preclude a Member State from providing for further exclusionary measures designed to ensure observance of the principles of equal treatment of tenderers and of transparency, provided that such measures do not go beyond what is necessary to achieve that objective."
"53 As was noted in paragraph 39 of this judgment, the primary aim of Directive 93/37 is to open up public works contracts to Community competition. The purpose of that directive is to avoid the risk of the public authorities indulging in favouritism (see, to that effect, Ordine degli Architetti and Others, paragraph 75, and Lombardini and Mantovani, paragraph 35).
54 The Community coordination of procedures for the award of public contracts is designed in particular to avoid both the risk of preference being given to national tenderers whenever a contract is awarded and the possibility that a contracting authority may choose to be guided by considerations which are unrelated to the contract in question (see, to that effect, Case C-380/98 University of Cambridge  ECR I-8035, paragraph 17; Case C-237/99 Commission v France  ECR I-939, paragraph 42; and Lombardini and Mantovani, paragraph 36).
55 Against that background, as the Advocate General observed at point 30 of his Opinion, it is appropriate to grant the Member States a certain discretion for the purpose of adopting measures intended to safeguard the principles of equal treatment of tenderers and of transparency, which, as was noted at paragraph 45 of this judgment, constitute the basis of the Community directives on the award of public contracts.
56 Each Member State is best placed to identify, in the light of historical, legal, economic or social considerations specific to it (see, to that effect, La Cascina and Others, paragraph 23), situations propitious to conduct liable to bring about breaches of those principles.
57 Consequently, Community law does not seek to call into question the assessment of a Member State, in the light of the specific context of that Member State, as to the particular risk that such conduct will arise if, amongst the tenderers for a public works contract, there is an undertaking active in the media sector or connected with persons involved in that sector, and as to the need to take measures to reduce that risk."
"If the Authority has not complied with its obligations as to equality, transparency or objectivity, then there is no scope for the Authority to have a "margin of appreciation" as to the extent to which it will, or will not, comply with its obligations."
Is any claim time barred?
" 30 However, the fact that a candidate or tenderer learns that its application or tender has been rejected does not place it in a position effectively to bring proceedings. Such information is insufficient to enable the candidate or tenderer to establish whether there has been any illegality which might form the subject-matter of proceedings.
31 It is only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings.
32 It follows that the objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions (see, to that effect, Universale-Bau and Others, paragraph 78).
33 This conclusion is supported by the fact that Article 41(1) and (2) of Directive 2004/18, which was in force at the time of the facts in the main proceedings, requires contracting authorities to notify unsuccessful candidates and tenderers of the reasons for the decision concerning them. Such provisions are consistent with a system of limitation periods under which those periods start to run from the date on which the claimant knew, or ought to have known, of the alleged infringement of the provisions applicable in the field of public procurement."
"Only once the unsuccessful tenderer or candidate has been informed of the essential reasons for his being unsuccessful in the award procedure may it generally be presumed that he knew or in any case ought to have known of the alleged breach of procurement law. Only from then on is it possible for him sensibly to prepare a possible application for review and to estimate its chances of success. Before receiving such reasons, on the other hand, the person concerned cannot as a rule effectively exercise his right to a review."
"Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992, requires that the period for bringing proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules should start to run from the date on which the claimant knew, or ought to have known, of that infringement."
Other alleged breaches of the obligation of transparency
Complaints about financial capacity
"Given the financial information available I consider that Edwards Waste Management Limited is financially acceptable to be invited to tender; however, as they currently undertake a significant level of work for the County Council I consider that any single package that they are awarded should not exceed £375,000 at the present time up to an aggregate value of £1,500,000 per annum."
The "significant level of work" referred to was evidently, as Mr Shaw explained in evidence, a reference to the container and composting contracts which Edwards had already been awarded, which had a value of some £1.4 million.
"I am concerned that Edwards is being awarded this contract as I am currently undertaking a review for a contract also with Edwards for the Central Container Service which is already above the agreed guidelines for exposure.
I am also not happy about being pressurised into making statements regarding the suitability of these companies just prior to award of contract when this work could have been done a few weeks ago. To award both contracts to Edwards is exposing HCC to unnecessary risk and I cannot support this."
"I have reviewed the financial information and undertaken a review of current spend etc and can advise that I am happy to recommend that Edwards is allocated a maximum annual contract and spend limit of £2.4 million. If the total contract levels are above this then it is for the Chief Officer to decide if this is acceptable."
Alleged negotiations with tenderers after marking (complaint 4)
Acceptance of abnormally low tenders
(1) The Council accepted tenders where the site management charge quoted was less than the actual cost of running the relevant site. It is contended by Varney that this was not permitted by the Preamble to the Schedule of Rates which required the actual cost to be quoted, as was done by Mr Varney;
(2) Even if that construction of the Preamble was wrong, the Council should not have accepted the tenders which it did (including that from Fourways which it did investigate as being abnormally low) on the basis that they were all abnormally low since the prices quoted were less than the cost of running the site and were not sustainable.
Construction of the Preamble
"For a weekly Site Management Charge involving no payment by the Council to the Contractor or no payment by the Contractor to the Council the rate entered should be "NIL""
It is quite clear that this expressly contemplates that a tenderer might decide that it would not make a Site Management Charge for running a site, no doubt because the other sources of income from being the operator of the site, which I identified above, might well cover the costs of running the site and provide a profit on top. This was how the cost of running sites was covered in the past. Indeed on sites run by the Varney family, they used to pay the Council for the privilege, because of the income that could be made from other sources.
"the Contractor's charge for providing the services which shall cover all of the Contractor's expenses in providing the Services and shall cover all of its obligations under the Contract."
Mr Coppel contended that this demonstrated that in effect the site management charge had to correspond to the actual gross costs of providing the services, disregarding any other sources of income such as scrap or salvage. In my judgment, that argument is misconceived for the reason Mr Shaw gave in evidence, as cited above, that the Council was endeavouring to ensure that the tenderers including everything in their evaluation of the site management charge, to avoid any subsequent suggestion that they had overlooked something and could seek to recover it from the Council. The definition was not intended to preclude a tenderer from quoting a site management charge which took account of other sources of income. It follows that there is no inconsistency between that definition and the Preamble.
(1) That the Council was under a duty which he submitted arises under both the Directive and the Regulations to investigate suspect tenders and to do so properly before deciding whether to accept or reject the tender in question.
(2) Even in the absence of the provisions in the Directive and the Regulations, there remains a duty on an authority to act at all times including in its assessment of tenders without obvious or manifest error.
Was there a duty to investigate suspect tenders?
Abnormally low tenders
1. If, for a given contract, tenders appear to be abnormally low in relation to the goods, works or services, the contracting authority shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant.
Those details may relate in particular to:
(a) the economics of the construction method, the manufacturing process or the services provided;
(b) the technical solutions chosen and/or any exceptionally favourable conditions available to the tenderer for the execution of the work, for the supply of the goods or services;
(c) the originality of the work, supplies or services proposed by the tenderer;
(d) compliance with the provisions relating to employment protection and working conditions in force at the place where the work, service or supply is to be performed;
(e) the possibility of the tenderer obtaining State aid.
2. The contracting authority shall verify those constituent elements by consulting the tenderer, taking account of the evidence supplied.
3. Where a contracting authority establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender can be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time limit fixed by the contracting authority, that the aid in question was granted legally. Where the contracting authority rejects a tender in these circumstances, it shall inform the Commission of that fact.
"75 The Court finds that the applicant cannot criticise the Council for checking many of the prices quoted in its tender. It is apparent from the wording of Article 30(4) of Directive 93/37 [the predecessor of the current Directive] that the Council is under a duty, first, to identify suspect tenders, secondly to allow the undertakings concerned to demonstrate their genuineness by asking them to provide the details which it considers appropriate, thirdly to assess the merits of the explanations provided by the persons concerned, and, fourthly, to take a decision as to whether to admit or reject those tenders (Joined Cases C-285/99 and C-286/99 Lombardini and Mantovani  ECR I-9233, paragraph 55). The Court notes, for example, that the Council, in its defence, stated that it had questioned the applicant about very many of the abnormally low prices, namely the price of 319 items in the summary out of a total of 1 020. It also asked the applicant for clarification regarding a series of very blatant anomalies and particularly about the price of the doors, which are the same for single doors, double doors or glass doors. The applicant has not provided adequate explanations for those anomalies either in its reply or at the hearing.
76 In that regard, the Court observes that, although Article 30(4) of Directive 93/37 does not require the Council to check each price quoted in each tender, it must examine the reliability and seriousness of the tenders which it considers to be generally suspect, which necessarily means that it must ask, if appropriate, for details of the individual prices which seem suspect to it, a fortiori when there are many of them. Furthermore, the fact that the applicant's tender was considered to conform to the contract documents did not relieve the Council of its obligation, under the same article, to check the prices of a tender if doubts arose as to their reliability during the examination of the tenders and after the initial assessment of their conformity."
Was there a manifest error or a breach of duty in failing to investigate tenders as abnormally low?
Assessment of the Fourways tender
Alleged marking errors
"it is not my task merely to embark on a re-marking exercise and to substitute my own view but to ascertain if there is a manifest error, which is not established merely because on mature reflection a different mark might have been awarded."
Alleged failure to enforce the commitments of Edwards after the contracts were awarded.
The alleged change to the terms of the contracts in respect of the RIBS bonus (Complaint 9)
The alternative claim under an implied contract
"the authorities give clear guidance that if Parliament creates a right which is inconsistent with a right given by the common law, the latter is displaced. By 'inconsistent' I mean that the statutory remedy has some restriction in it which reflects some policy rule of the statute which is a cardinal feature of the statute."
"...given that Regulation 32 of the 1993 Regulations imposes important limits on a bidder's ability to take against [the authority] for breach of such obligations, I do not think it could possibly have been intended that those obligations would co-exist by way of a contract, where the limitations of Regulation 32 would not apply."
4. —(1) In these Regulations, an "economic operator" means a contractor, a supplier or a services provider.
(2) When these Regulations apply, a contracting authority shall not treat a person who is not a national of a relevant State and established in a relevant State more favourably than one who is.
(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—
(a) treat economic operators equally and in a non-discriminatory way; and
(b) act in a transparent way.
The restricted procedure
16. —(1) A contracting authority using the restricted procedure shall comply with this regulation.
(2) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after informing the intention, a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005, inviting requests to be selected to tender and containing the information therein specified.
(3) Subject to paragraph (5), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to tender shall be specified in the contract notice and shall be not less than 37 days from the date of the despatch of the notice.
(4) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt of requests to be selected to tender and for receipt by it of tenders.
(5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (3) may be reduced by 7 days.
(6) Where compliance with the minimum time limit of 37 days referred to in paragraph (3) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit—
(a) a time limit of not less than 15 days from the date of despatch of the contract notice; or
(b) where the contracting authority has transmitted the contract notice by electronic means in accordance with paragraph (5), a time limit of not less than 10 days from the date of despatch of the contract notice.
(7) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to tender only if the economic operator—
(a) may be treated as ineligible to tender on a ground specified in regulation 23; or
(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—
(i) economic and financial standing; or
(ii) technical or professional ability.
(8) The contracting authority shall make the selection of the economic operators to be invited to tender in accordance with regulations 23, 24, 25 and 26 and shall award the contract in accordance with regulation 30.
(9) Where there is a sufficient number of economic operators suitable to be selected to be invited to tender, the contracting authority may limit the number of economic operators which it intends to invite to tender provided that the contract notice specifies—
(a) the objective and non-discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and
(b) the minimum number of economic operators, which shall be not less than 5, which the contracting authority intends to invite to tender and, where appropriate, the maximum number.
(10) The contracting authority shall ensure that the number of economic operators invited to tender is—
(a) sufficient to ensure genuine competition; and
(b) at least equal to the minimum number specified by the contracting authority in accordance with paragraph (9)(b).
(11) Subject to paragraph (10)(a), where—
(a) the contracting authority carries out a selection in accordance with regulations 23, 24, 25 and 26; and
(b) the number of economic operators selected to be invited to tender is less than the minimum number specified by the contracting authority in the contract notice;
that contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.
(12) The contracting authority may require an economic operator to satisfy minimum levels of—
(a) economic and financial standing; or
(b) technical or professional ability;
provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.
(13) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to tender for the contract and the invitation shall—
(a) be accompanied by the contract documents;
(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or
(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.
(14) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.
(15) The contracting authority shall include the following information in the invitation—
(a) the final date for the receipt by it of tenders, the address to which they must be sent and the one or more languages in which they must be drawn up;
(b) a reference to the contract notice published in accordance with paragraph (2);
(c) an indication of the information to be included with the tender which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and
(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (2).
(16) Subject to paragraphs (18) and (19), the date which the contracting authority fixes as the last date for the receipt by it of tenders and which shall be specified in the invitation to tender in accordance with paragraph (15)(a), shall be not less than 40 days from the date of the despatch of the invitation.
(17) Where compliance with the minimum time limit of 40 days referred to in paragraph (16) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit, a time limit of not less than 10 days from the date of despatch of the invitation.
(a) the contracting authority has published a prior information notice in accordance with regulation 11;
(b) the prior information notice contained as much of the information referred to in the form of a contract notice in Annex II to Commission Regulation (EC) No 1564/2005 as was available at the time of publication; and
(c) the prior information notice was sent to the Official Journal at least 52 days and not more than 12 months before the date on which the contract notice provided for in paragraph (2) is despatched;
the contracting authority may substitute for the period of not less that 40 days in paragraph (16), a period of generally not less than 36 days and in any event not less than 22 days.
(19) The contracting authority may reduce the time limits for the receipt by it of tenders referred to in paragraphs (16) and (18) by 5 days provided that—
(a) the contracting authority offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and
(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.
(20) The contracting authority or entity referred to in paragraph (13)(c) shall supply such further information relating to the contract documents as may be reasonably requested by an economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.
(21) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—
(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraph (20) and, for whatever reason, the contract documents or further information are not supplied in accordance with that paragraph; or
(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.
(22) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (19).
Information as to economic and financial standing
24. —(1) Subject to regulation 27 and paragraph (2), in assessing whether an economic operator meets any minimum standards of economic and financial standing required of economic operators by the contracting authority—
(a) for the purposes of regulation 15(11), 16(7), 17(9) or 18(10); and
(b) in selecting the economic operators to be invited to tender for or to negotiate the contract in accordance with regulation 16(8), 17(10) or 18(11);
a contracting authority may take into account any of the following information—
(i) appropriate statements from the economic operator's bankers or where appropriate, evidence of relevant professional risk indemnity insurance;
(ii) statements of accounts or extracts from those accounts relating to the business of the economic operator where publication of the statement is required under the law of the relevant State in which the economic operator is established; or
(iii) where appropriate, a statement, covering the 3 previous financial years of the economic operator, of—
(aa) the overall turnover of the business of the economic operator; and
(bb) where appropriate, the turnover in respect of the work, works, goods or services which are of a similar type to the subject matter of the public contract.
Criteria for the award of a public contract
30. —(1) Subject to regulation 18(27) and to paragraphs (6) and (9) of this regulation, a contracting authority shall award a public contract on the basis of the offer which—
(a) is the most economically advantageous from the point of view of the contracting authority; or
(b) offers the lowest price.
(2) A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period and period of completion.
(3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.
(4) When stating the weightings referred to in paragraph (3), a contracting authority may give the weightings a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract.
(5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority shall indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.
(6) If an offer for a public contract is abnormally low the contracting authority may reject that offer but only if it has—
(a) requested in writing an explanation of the offer or of those parts which it considers contribute to the offer being abnormally low;
(b) taken account of the evidence provided in response to a request in writing; and
(c) subsequently verified the offer or parts of the offer being abnormally low with the economic operator.
(7) Where a contracting authority requests an explanation in accordance with paragraph (6), the information requested may, in particular, include—
(a) the economics of the method of construction, the manufacturing process or the services provided;
(b) the technical solutions suggested by the economic operator or the exceptionally favourable conditions available to the economic operator for the execution of the work or works, for the supply of goods or for the provision of the services;
(c) the originality of the work, works, goods or services proposed by the economic operator;
(d) compliance with the provisions relating to employment protection and working conditions in force at the place where the contract is to be performed; or
(e) the possibility of the economic operator obtaining State aid.
(8) Where a contracting authority establishes that a tender is abnormally low because the economic operator has obtained State aid, the offer may be rejected on that ground alone only after—
(a) consultation with the economic operator; and
(b) the economic operator is unable to prove, within a reasonable time limit fixed by the contracting authority, that the aid was granted in a way which is compatible with the EC Treaty.
(9) Where a contracting authority rejects an abnormally low offer in accordance with paragraph (8), it shall send a report justifying the rejection to the Office of Government Commerce for onward transmission to the Commission.
(10) In this regulation "offer" includes a bid by one part of a contracting authority to provide services, to carry out work or works or to make goods available to another part of the contracting authority when the former part is invited by the latter part to compete with the offers sought from other persons.
Enforcement of obligations
47. —(1) The obligation on—
(a) a contracting authority to comply with the provisions of these Regulations, other than regulations 14(2), 30(9), 32(14), 40 and 41(1), and with any enforceable Community obligation in respect of a public contract, framework agreement or design contest (other than one excluded from the application of these Regulations by regulation 6, 8 or 33); and
(b) a concessionaire to comply with the provisions of regulation 37(3);
is a duty owed to an economic operator.
(6) A breach of the duty owed in accordance with paragraph (1) or (2) is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the High Court.
(7) Proceedings under this regulation must not be brought unless—
(a) the economic operator bringing the proceedings has informed the contracting authority or concessionaire, as the case may be, of the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2) by that contracting authority or concessionaire and of its intention to bring proceedings under this regulation in respect of it; and
(b) those proceedings are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.
(8) Subject to paragraph (9), but otherwise without prejudice to any other powers of the Court, in proceedings brought under this regulation the Court may—
(a) by interim order suspend the procedure leading to the award of the contract or the procedure leading to the determination of a design contest in relation to the award of which the breach of the duty owed in accordance with paragraph (1) or (2) is alleged, or suspend the implementation of any decision or action taken by the contracting authority or concessionaire, as the case may be, in the course of following such a procedure; and
(b) if satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with paragraph (1) or (2)—
(i) order the setting aside of that decision or action or order the contracting authority to amend any document;
(ii) award damages to an economic operator which has suffered loss or damage as a consequence of the breach; or
(iii) do both of those things.
(9) In proceedings under this regulation the Court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) or (2) if the contract in relation to which the breach occurred has been entered into.