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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Clinton (t/a Oriel Training Services) v Department for Employment and Learning & Anor [2012] NICA 48 (13 November 2012)
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Cite as: [2012] NICA 48
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| Neutral Citation [2012] NICA 48 | Ref: | GIR8551 |
| Judgment: approved by the Court for handing down | Delivered: | 13/11/12 |
| (subject to editorial corrections)* |
BETWEEN:
Plaintiff/Respondent;
Defendants/Appellants.
GIRVAN LJ
Introduction
[1] This is an appeal from a judgment delivered on 24 January 2012 and an order made on 1 February 2012 by McCloskey J ("the judge") concerning the public procurement process for the provision of training services under two publicly funded programmes, 'Training for Success' and 'Apprenticeships NI.' These services are Part B Services under the Public Contracts Regulations 2006 ("the 2006 Regulations"). The appellants ("DEL" and "DFP" respectively) are two government departments, one of which conducted the procurement process in respect of which it was advised by Central Procurement Directorate ("CPD"). The respondent was one of the tenderers in the competition. On 25 March 2011 the respondent was informed that he had not met Selection Criterion 1 ("SC1") in Stage 1 of the process and that, accordingly, his tender would not be considered further. The respondent successfully challenged that decision which the judge set aside pursuant to Regulation 47 I.
[2] On the hearing of the appeal Mr Giffin QC and Mr McMillen QC appeared for the appellants. Mr McLaughlin appeared for the respondent. The court is indebted to counsel for their helpful and well-presented written and oral arguments.
Factual Background
[3] The factual background of this appeal which is set out in considerable detail in the judge's judgment (reported at [2012] NIQB 2) does not require to be fully repeated in this judgment. The central issue was whether the evaluation panel was correct in its decision that the respondent had failed to satisfy SC1. Tenderers were required to pass all Stage 1 selection criteria before they could be considered at Stage 2. SC1 asked tenderers to demonstrate that they had the necessary experience to deliver high quality training programmes of the relevant kinds through the use of examples of programmes delivered within the last three years. It provided:
"Tenderers must demonstrate that they have the necessary experience to deliver high quality training programmes in the professional and technical areas they have indicated of similar scope to that described through the use of an example (or examples) of programmes delivered within the last three years. This shall include dates, outcomes and explanations as to why the experience is considered to be relevant to the particular professional and technical groups being tendered for."
[4] The parties differ on the proper interpretation of SC1 and as to what information a tenderer was required to submit in its application to demonstrate "outcomes." The respondent provided a list of the names of the qualifications delivered under the programmes which he had run. In respect of one out of the three programmes described, he also referred to the grading attained in 2008 and 2010 in Education and Training Inspectorate ("ETI") inspections.
[5] The judge noted that there was no dispute that the information considered by ETI included the type of material the Department considered was missing from the tender. However, the Department contended that the 2008 data would have been somewhat out of date and the 2010 grading was based on a desktop evaluation and action plan and it was of the view that the Instructions to Tenderers ("the ITT") made clear that tenderers must not make assumptions that the CPD or the Department had prior knowledge of their organisation and service provision and that tenderers "will be evaluated on the information provided in their response."
[6] The respondent for its part contended that it could not have appended the ETI reports given that the ITT stipulated a tender page limit and prohibited attachment of appendices. It also relied on two of the clarification responses provided by the Department during one of the pre-tender public information events which stated that the Department did have an understanding of ETI gradings and, in response to a query as to whether ETI gradings would be considered in the selection phase, it was stated that tenderers were free to submit evidence that would help demonstrate compliance with the selection criteria, including relevant external quality assessment.
[7] In his affidavit of 6 January 2012 Thomas McVeigh, the chairman of the appellant's evaluation panel, explained that the panel would have expected a tenderer to provide:
"data about the volumes of training delivered within the timeframe stipulated, and about performance in terms of the number or proportion of individuals successfully completing the programmes in question. Simply setting out the qualifications which the programmes were designed to deliver was not, in our view, a demonstration of the outcomes of those programmes"
[8] In notifying the respondent of its decision on 25 March 2011, the DEL stated:
"Tendering organisations must provide examples that they have a minimum of three years' experience of successfully delivering training programmes comparable to those for which they are tendering. This should include dates, outcomes and explanations as to why the experience is considered to be relevant to the particular professional and technical groupings being tendered for".
[9] In reply on 28 March 2011, the respondent complained that SC1 had not asked for evidence, data or details in relation to achievements, success rates or destinations of positive outcomes. It contended that there was no right or wrong way to answer SC1.
[10] The CPD on 1 April 2011 stated that it was the responsibility of bidders to assure themselves that they fully understood what was required and to what level of detail.
The judge's determinations
[11] There were two grounds of challenge before the lower court which resulted in four main findings. These may be briefly stated.
First ground of challenge
[12] The first ground of challenge was that the Department had breached the principles of transparency and equality because its assessment that the respondent had failed to provide "data in respect of achievements, success rates or destinations into positive outcomes" reflected the application of an undisclosed or, alternatively, ambiguous selection criterion. Under this ground of challenge it was also argued that there had been manifest error in that (a) the evaluation panel interpreted the criterion to require a demonstration of performance and quality as opposed to experience and (b) even if the panel had been entitled to consider the quality of programmes delivered by the respondent, it should not have eliminated the respondent because the respondent had demonstrated quality by referring to ETI gradings.
[13] The Department rejected the contention that the word "outcomes" was ambiguous. It cited the test in SIAC Construction v Mayo County Council [Case C-19/00] [2002] All ER (EC) 272 where the criterion was so formulated "… as to allow all reasonably well informed and normally diligent tenderers to interpret it in the same way". None of the 62 tenderers had submitted a clarification request on this point. Only 3 other tenderers failed SC1. There was no evidence that any other tenderer had interpreted SC1 as the respondent had done. The word "outcomes" had a clear well-established meaning in the relevant field and context.
[14] The judge reached two main conclusions. Firstly, he considered that SC1 failed the test of sufficient clarity. In so finding he considered that the real issue was whether the panel's interpretation of SC1 justified the conclusion that it was not formulated in such a way as to allow all reasonably well informed and normally diligent tenderers to interpret it in the same way. The respondent had construed this criterion as requiring the demonstration of quality to some extent. The fact that the construction of "outcomes" had generated significant debate at trial tended to contradict the Department's contention that "outcomes" had an obvious or well-recognised meaning. Ultimately, the question was one of degree. The relevant questions were:
(a) Was the meaning of SC1 sufficiently clear to enable all reasonably well informed and normally diligent tenderers to construe it uniformly?
(b) Was the Department's expectation that compliance with this criterion required the provision of "data relating to achievements, success rates and destinations into positive outcomes arising out of previously delivered programmes" expressed with sufficient clarity in the criterion as a whole and in the word "outcomes" in particular?
The judge considered that each of these questions fell to be answered in the negative.
[15] Secondly, the judge concluded that the Department was guilty of manifest error because the panel had misinterpreted SC1. Further the Department was guilty of manifest error in disregarding its representation to all tenderers that panel members would be cognisant of matters pertaining to ETI reports and its acceptance that the ETI would have had relevant information about the respondent available to it.
Second ground of challenge
[16] The second ground of challenge was that the Department breached its duty of equal treatment by seeking clarifications from other tenderers. It was common case that having received 62 tenders, the Department sought clarification from 13 other tenderers on Stage 1 Criteria 2 and 3 concerning the qualifications of, and subjects to be taught by, some of the named proposed tutors. Consequently 12 out of the 13 were adjudged to have complied with the Stage 1 criteria. A component of this ground was that some of the Department's clarification requests were not purely clarificatory but rather were requests for essential information that tenderers had omitted. It was contended on this basis that the Department had contravened the rules of its competition as it understood those rules to be.
[17] The Department contended that the type of information sought was not comparable to the information which it had found to be lacking in Oriel's tender. The other tenderers had completed spread sheets in such a way as to give rise to ambiguity, incompleteness or possible error and accordingly the clarification requests arose out of information already provided in the tenders. In this case the respondent had omitted essential information and an invitation to them to rectify this would have involved seeking information not previously provided.
[18] The judge concluded that by failing to seek clarification from the respondent in circumstances where it had done so from other tenderers, the Department had breached the principle of equality of treatment. The panel had interpreted unduly narrowly its power to seek further information as provided in the rules of competition. Its failure to request further information gave rise to a manifest error because to have requested further information would have been consistent with principle. The requests to the other tenderers had been a legitimate exercise of the panel's discretionary powers and the failure to seek clarification from the respondent breached the principle of proportionality.
The grounds of appeal
[19] The appellants contend that the judge erred in his approach and conclusions. They submit that "outcomes" in SC1 naturally meant the results of the respondent's training programmes and that no other interpretation would have served a sensible purpose. The recognised meaning is supported by the way in which the other tenderers responded. The fact that the panel gave careful consideration to the matter and that documents for subsequent competitions were amended to spell out more clearly what was expected of tenderers does not establish unlawful ambiguity. The appellants reject the finding of manifest error in the panel's interpretation of "outcomes" and in reaching the conclusion that the ETI gradings did not constitute sufficient information. The judge wrongly substituted his own view of the significance of the ETI gradings. His approach would have involved drawing inferences from the grades about the outcomes that the respondent had achieved whereas the appellant could not have known the specific information that had been provided to ETI.
[20] The appellants make the case that the circumstances in which clarification was sought from other tenderers were not comparable to those of the respondent. Specific questions were raised about information provided by other tenderers. Asking the respondent for information would have invited information different to that which the respondent had provided in its tender. An invitation to the respondent to submit further information would have amounted to improperly providing him with an opportunity to improve his tender. It would have gone outside the bounds of what could be legitimately considered to be supplementing the original response by permitting the resolution of ambiguities or inconsistencies or the correction of obvious errors. Even if requesting further information from the respondent had been permissible, a decision not to request further information should not lead automatically to a finding that the appellant had acted disproportionately. A finding by the judge that it would have been "fair, modest and reasonable" to seek a clarification should not of itself lead to a finding that exercising the discretion differently was disproportionate.
The key legal principles
[21] As noted the contracts subject to procurement in the present case were of the Part B variety within the scheme of the 2006 Regulations. The regulatory scheme of Part B Public Service Contracts is less intrusive than that applicable to other contracts. However, Regulation 4(3) applies. It provides that in accordance with Article 2 of the Public Sector Directive a contracting authority must treat economic operators equally and in a non-discriminatory and transparent way. In imposing these duties the Regulation gives effect to precisely the same principles as are stated in Article 2 of the Directive.
[22] Tenderers must be in a position of equality both when they formulate their tenders and when their tenders are being assessed by the adjudicating authority. Award criteria must not give public authorities unrestricted freedom of choice as to the awarding of contracts. The principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified. The criteria must be clearly stated (SIAC Construction Limited v Mayo County Council [2001] ECR 1-7725 C-19-11 paragraphs 33, 34, 37, 41 and 45.) The award of public contracts is subject to respect for the principles of the Treaty and the principles deriving therefrom including the principle of proportionality (see recital 2 of the Directive).
[23] The principle of proportionality requires that measures adopted do not exceed the limits of what is appropriate and necessary in order to achieve the objectives sought. Where there is a choice between several appropriate measures recourse must be had to the least onerous (Tideland Signal v European Commission [2002] All ER (EC) 272). The principle of proportionality is capable of applying to the implementation of the terms of a procurement process (J B Leadbitter and Co Ltd v Devon County Council [2009] EWHC Ch 930 paragraph 55).
[24] Once tenders have been submitted those tenders in principle can no longer be amended either at the request of the contracting authority or of the tenderers. The principle of equal treatment precludes negotiation. For an authority to provide clarification runs the risk of making the authority appear to have negotiated with the tenderer. Tenderers cannot complain that there is such an obligation when the lack of clarity in their tender is attributable to their failure to exercise due diligence in the drafting of the tender. Article 2 of the Directive does not preclude the correction or amplification of a tender where on an exceptional basis it would be appropriate to allow such correction or clarification, particularly when it is clear that mere clarification or correct obvious material errors provided that such an amendment does not in reality lead to the submission of a new tender. The authority must treat the various tenderers equally and fairly in such a way that a request for clarification does not appear to have unduly favoured or disadvantaged the tenderer to whom the request is addressed (SAG ELV v Slovensko and Others [2012] EUECJ C-599/10 (29 March 2012 (paragraphs 36 et seq)).
[25] Although a contracting authority is required to draft tender conditions clearly and with precision it is not required to make advance provision for all the situations, however rare, which could in practice arise. A condition in the document must be interpreted logically in the light of its subject matter and wording. Where the tender has been drafted in ambiguous terms and the circumstances of the case suggest that the ambiguity probably has a simple explanation or is capable of being easily resolved there is a duty to contact the tenderer. In principle it would be contrary to the requirements of sound administration to reject the tender in such circumstances without exercising the power of clarification. It would be contrary to equal treatment to conclude that in such circumstances the authority has an unfettered discretion – Antwerpse Bouwerken NV v European Commission T-195-08 10 December 2009.
[26] The appropriate test to be applied to the question whether a criterion is clear and transparent is that stated by the European Court of Justice in SIAC Construction v Mayo County Council [2002] All ER (EC) 272. The award criteria ha to be formulated in such a way as to allow all reasonably well informed and normally diligent tenderers to interpret it in the same way. The obligation of transparency also means that the adjudicating authority has to interpret the award criteria in the same way throughout the entire procedure.
[27] If an authority has not complied with its obligations as to equality, transparency and 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. In relation to matters of judgment for assessment the authority does have a margin of appreciation so that the courts should only disturb the authority's decision where it has committed a manifest error. The word manifest does not require any exaggerated description of obviousness. Manifest error arises in a case where an error has clearly been made (see Morgan J in Lionel Apparel Systems Limited v Firebuy Limited [2007] EWHC Ch 2179.) In J B Leadbitter and Co Ltd v Devon County Council [2009] EWHC Ch 903 David Richard J stated that: "The court must respect (the authority's) area of judgment and will not intervene unless the decision is unjustifiable. This is the meaning of manifest error in this context." He pointed out that in Tideland Signal v The EC it was stated that the Commission's decision to reject the tender without first seeking clarification in that case "was clearly disproportionate and thus vitiated by a manifest error". Thus acting in a manner which in the circumstances is disproportionate constitutes a manifest error.
The questions for determination
[28] The relevant questions can be stated and sequenced in the following way:
(a) Was the meaning of SC1 clear and transparent? In the light of SIAC Construction v Mayo County Council this question can be further refined – was the criterion formulated in such a way as to allow all reasonably well informed and normally diligent tenderers to give it a common interpretation?
(b) Was the decision by the appellants to reject the respondent's tender the result of manifest error? That question may be further refined since the respondent seeks to rely on a number of different errors which it is alleged vitiate the appellant's decision:
(i) Was the panel in error on its construction of SC1?
(ii) Was the panel in error in disregarding the information about the respondent's compliance with SC1 which it was alleged by the respondent could be found in the ETI reports to which the respondent referred?
(iii) Was the panel in error in concluding that it could not seek clarification from the respondent in the form of statistical data?
(iv) Was the panel in error in failing to seek clarification from the respondent when in fact it sought clarification from other tenderers in respect of matters arising under other criteria?
(v) Did the panel in error act disproportionately in the circumstances?
The issue of the clarity and transparency of SC1
[29] It is not in dispute that the respondent did not provide statistics for the success rate for trainees. He did not do so because he did not interpret SC1 as requiring him to do so. He did state that he had worked successfully and competently with the Department and others in the previous ten years in the delivery of mainstream national and pilot training programmes. He referred to the ETI inspection in November 2008 which allocated him a grade 3 "good" category and he referred to the fact that his organisation had a grade 2 "very good" finding in June 2010 in the IQRS exercise involving ETI though that was based on self-assessment. He referred to his engagement with 410 Training for Success learners and 789 Apprenticeships NI learners and with over 496 employees in supporting their work for development plans. He detailed the matters covered by him since 2007 in relation to Training for Success programmes and the Apprenticeship Outcomes programme. It was clear from his tender documentation response that he interpreted the concept "outcomes" as referring to the end product which the course had provided. He did not interpret it as requiring some form of statistical analysis supported by data. It was also clear that by referring to his achievements as perceived and recognised by ETI he was making clear that he considered that he had discharged his obligation to show that he could deliver high quality services. He understood from the tender documentation and information provided by the authorities that they understood the workings of the ETI grading system.
[30] It is also clear that in fact if he had realised that he was being expected to provide a statistical analysis with data he could have done so. It was apparently not in dispute before the judge that the information considered by ETI giving rise to scoring assessment would have included the kind of material which the Department contends was omitted erroneously from the tender.
[31] The Department's main deponent and witness, Mr McVeigh, in his affidavits made the following averments.
(a) "No specific evidence was presented to demonstrate performance from 2007. The obvious way to do this is to say, for example, that in a particular year the plaintiff trained XX persons of whom YY completed the course and XX obtained YY qualification while XX obtained ZZ qualification and AA% went straight into employment. Indeed of the 62 stage one tenderers 51 contained performance data either in tabular form or as part of the written narrative."
(b) "The submission demonstrated that the plaintiff had wide experience in the relevant areas. There was no evidence that he had experience that would allow him to deliver high quality training programmes. All the panel had was the plaintiff's statement as to his attributes and some very brief statements as to external assessments."
(c) "The provision of data in respect of qualifications, achievements, success rates or positive progression (eg. employment, further education or further training) was necessary to demonstrate sufficient and relevant experience in delivering high quality training programmes. The information that the plaintiff provided was meaningless."
[32] It was Mr McVeigh's case that the word outcomes has a well known meaning to operators in the industry. Mr McBride, another member of the panel, acknowledged that there was nothing prescriptive about SC1. It did not prescribe the information to be provided. In the panel discussions one of the panel, Mr Lynas, advocated a pass for the respondent in relation to SC1. He initially considered that the information supplied complied with SC1. Mr McVeigh recognised that panel members debated two competing interpretations of SC1. The judge made a finding that he accepted that both were reasonable. Ultimately the members in the majority and Mr Lynas agreed that the tender should be rejected.
[33] Mr McVeigh in his affidavit stated that the panel would have expected tenderers to provide data about volumes of training delivered within the timeframe stipulated and about performance and details of the number and proportion of individuals successfully completing programmes in question. However, the true question is not what the panel would have expected to receive but rather what SC1 clearly required of the tenderers. The question whether SC1 was clear and transparent involves the court reaching a conclusion as to how the criterion might have been interpreted by a reasonably well informed and diligent businessman and the court must decide whether it is sufficiently clear to show what was being demanded of the tenderers. The fact that one member of the panel, Mr Lynas, initially concluded that the requirements of SC1 had been met is a relevant factor pointing to a lack of clarity. Mr Lynas was doubtless chosen to sit on the panel as an individual with experience in the field. Paragraph 10 of Mr McVeigh's affidavit referred to the vast majority of submissions including "at least some empirical information". In some cases considerable detail was provided. It is apparent, however, that the degree of detail varied. The variation in the detail provided is again an indicator that tenderers did not consistently understand what exactly was being expected of them. This points to a lack of clarity and transparency in the criterion. What is evident is that the criterion did not make clear to tenderers what the panel actually expected, namely the provision of statistical data as spelt out in paragraph 9 of Mr McVeigh's affidavit of 6 January 2012.
[34] The appellants in their comments in respect of their understanding of the ETI system of grading further contributed to the possibility of misunderstanding on the part of tenderers. In their pre-procurement information in response to the question whether ETI grades would be considered in the selection phase the appellants stated that "Tenderers are free to submit evidence that will help to demonstrate compliance with the selection criteria including relevant quality assessments." In response to the questions whether ETI had an input into the process and whether the panel understands the ETI grading system the answers given were that ETI would not be on the panel and that DEL had an understanding of ETI gradings but gradings outside Northern Ireland needed clarification. The implication of the answers was that while gradings from outside Northern Ireland required clarification ETI gradings were understood and did not require clarification. A tenderer might assume that if they submitted ETI grading information the panel would understand what information the ETI must have taken into account in reaching this grading and that the underlying information supporting the grading demonstrated the quality of the assessed gradings.
[35] The judge correctly concluded that the wording of SC1 had failed to clearly and transparently spell out to the tenderers what was expected of them if they were to satisfy the requirements of SC1, a criterion of fundamental importance to the whole process because, if not satisfied, the result was the exclusion of the tenderer from further consideration thereby excluding the tenderer from further consideration no matter how good the rest of his tender may have been. Such a criterion, a breach of which was fatal at the outset to the whole tender, was one in respect of which the principles of clarity, fairness and equality of treatment demanded particular clarity and transparency.
[36] The appellants suggest that if the criterion was ambiguous it was for the respondent to ask for clarification and in the light of his failure to do so he could not complain of being disqualified for non-fulfilment of the criterion. Where, as here, a criterion is unclear and one reader may interpret it in one way (and, as noted, in this instance Mr Lynas was initially prepared to read it in the same way as the respondent) it is not an answer to the charge of lack of clarity or transparency to say that if the reader had asked for clarification he would have been told what was required. A patent ambiguity is one thing. A criterion the meaning of which may, and does in fact, lead one party to one approach and another reasonable party to a different one is not patently ambiguous but is simply a criterion without a clear meaning. The reader may fail to see an ambiguity.
[37] In view of the conclusion reached on the first question it must follow that the DEL was guilty of manifest error in its decision to exclude the respondent from the competition.
The clarification issue
[38] If, contrary to the conclusion reached that SC1 failed the test of clarity and transparency, SC1 fell to be considered as sufficiently clear and precise to pass the test of clarity and transparen, it would be necessary to address the question whether the DEL was guilty of manifest error in the sense discussed above having regard to its decision not to go back to the respondent in the light of the omission of the statistical data which the panel expected the tenderer to produce.
[39] Central to the respondent's case was the proposition that the appellants failed to understand the extent of the discretion vested in them to go back to the tenderer to give him an opportunity to provide the data which the Department expected. The panel had advice from CPD that if the panel found itself unable to be sure from the information supplied which individuals would be delivering which training that was a permissible subject of clarification but the panel ought not to seek new information from bidders. It was the appellants' case that they followed that advice which the panel considered permitted it to go back to some of the tenderers to seek clarification of what professional technical area staff would be delivering what relevant qualification but they concluded that the advice did not permit the panel to ask the respondent to provide the data about the quality of services which the panel had expected. Mr McVeigh concluded that the panel could not solicit anything further from bidders in the absence of ambiguity or lack of clarity in their tenders. The judge concluded that this was a misdirection considering that the Department had a discretionary power to seek further information or clarification from the respondent and was not as limited in its right or power to do so as the panel thought. On the appellant's own case the respondent had not failed to provide any information. It was a question of the provision of insufficient information.
[40] The issue whether the Department should have sought clarification and whether its failure to do so constitutes a manifest error must be viewed in the whole factual matrix in which the question arises. It is necessary to take account of the following matters.
(a) It was clear from the respondent's tender that he had failed to provide the information which the Department expected. A fair reading of SC1 by the Department should have alerted it to the fact that it did not spell out what data or information was sought. It should have been clear to the Department that the omission of such data from a tenderer may well have been as a result of a mistaken understanding on the part of the tenderer as to what was required by SC1. Mr Lynas's initial view in the matter should have alerted the panel to the real and reasonable possibility that the respondent had simply misread or failed to understand what SC1 required of him. The ETI information provided would reasonably have alerted the panel members to the fact that it was likely or very possible that the respondent had data to back up the ETI gradings and the fact that the tenderer had a successful relationship with the Department in the provision of services would have supported that view. The fact that the tenderer had chosen to omit underlying data could very well have been the result of a conclusion by the tenderer that he was supplying sufficient information and did not have to spell out the contents of that data. Such a conclusion must have been the result of a failure to understand what was being required of him. The panel should have appreciated that the wording used was less than prescriptive in what the tenderer was being required to do.
(b) The debate within the panel between the majority and Mr Lynas clearly identified the possibility that the tenderer did not appreciate the panel's expectations.
(c) Since evidentially an analysis of the matter by the panel should reasonably have led the panel to consider that the omission of the information might well have been the result of a failure by the respondent to understand what was required of him, the terms of SC1 not being explicit as to what was expected, bearing in mind that there may have been a simple explanation for the omission of the information which could be easily resolved one way or the other, the principles of good administration and proportionality called for the tenderer being given an opportunity to clarify the situation by the provision of available data of the kind that the panel expected.
(d) Seeking such clarification would not have unduly favoured the respondent or disadvantaged any of the other tenderers who had supplied such information. The rest of the respondent's tender had to be considered in detail. SCI was a condition that excluded any consideration of the rest of the tender on its own merits.
(e) In respect of the obtaining of clarificatory additional information from other tenderers under different criteria, the Department strongly contends that the situations pertaining to this respondent and to the other tenderers were not materially the same and therefore there had been no inequality of treatment. The principles of good administration and proportionality in certain circumstances may justify or may indeed require the seeking of clarification or amplification of information to be supplied by a tenderer. The appellants argue with justification that the situations pertaining to the appellant and to the other contractors from whom clarification was sought were not materially the same. However, the principles of good administration and proportionality applied to the circumstances of this case on its own merits would have justified the panel asking the respondent to provide the data it had expected to receive but which SC1 did not spell out.
(f) It is not without significance that the appellants changed the wording of the criterion in later tender processes and spelt out clearly what was required of tenderers in this situation. Doubtless this was done to avoid any repetition of a similar situation arising. While not determinative of the question whether the criterion as originally drawn was lacking in clarity, the departments' actions do indicate they considered it helpful to tenderers to make absolutely clear what was required of them.
[41] I agree with the judge in his conclusion that the panel misdirected itself in respect of the extent of its discretion to give the respondent an opportunity to provide the data that the panel expected to see. It had a wider discretion to admit further information provided it did not give a tenderer an opportunity to renegotiate a tender. Mr Giffin QC argued that in relation to the question of whether a decision is disproportionate it is necessary to distinguish between three different types of cases, namely (a) a case in which there is a mandatory duty lying on the authority to call for clarification, (b) a case where it may but is not bound to seek such further clarification, and (c) a case in which it would be impermissible to seek such further information. In this case it would have been at least permissible for the panel to seek further information and the panel misdirected itself in considering that it could not do so. Since it had failed to direct itself properly it reached a conclusion that was not in the circumstances a proportionate response to the situation. SC1 failed to spell out what was required and, assuming contrary to my primary conclusion that the criterion passed the test of clarity and transparency, this was a case in which fairness and proportionality, in fact, required and not merely permitted the panel asking the respondent to provide the data which it had expected notwithstanding the lack of particularity in SC1.
[42] The appeal must thus be dismissed and the decision of the judge affirmed.
Sir Anthony Hart
[43] Agreeing as I do with Girvan LJ's statement of the relevant facts in this case, and, with one exception to which I shall refer, his formulation of the relevant legal principles at paragraphs [1]-[27], it is unnecessary for me to repeat these matters. At [25] he says:
"A condition in the document must be interpreted logically in the light of its subject matter and wording."
In the lower court at [37] the trial judge said:
"Furthermore, I accept Mr Giffin's submission that the overall context is a commercial one, imbued with ingredients of common sense and commercial purpose."
And at [38]:
"… the court should approach the matter not as an exercise in statutory construction or one involving the interpretation of a deed or contract or other legal instrument. To adopt such an approach would not, in my view, be consonant with the Siac test. Rather, the court's attention must focus very much on the "industry" concerned, in which the professionals and practitioners are not lawyers."
[44] In my opinion the commercial purpose of this tendering exercise is fundamental to the resolution of the issues in this case because it provides the context within which, or the prism through which, the dispute between the parties as to the meaning of "outcomes" has to be assessed.
[45] It is common case that the key passage that has to be considered in this case is SC1. Given its importance I set it out again. It was in the following terms:
"Tenderers must demonstrate that they have the necessary experience to deliver high quality training programmes in the professional and technical areas they have indicated of similar scope to that described through the use of an example (or examples) of programmes delivered within the last three years. This shall include dates, outcomes and explanations as to why the experience is considered to be relevant to the particular professional and technical groups being tendered for." (Emphasis added)
[46] In this case the contract was to provide training and skills for candidates in different geographical areas throughout the province for two separate programmes. The first was "Training for Success" and the second was "Apprenticeships NI". Training for Success was described at 3.1 of the Procurement Briefing document as follows:
"Training for Success is a programme designed to address the needs of unemployed 16-17 year olds (with additional eligibility conditions for those with disabilities or coming from an "in care" background). This flexible programme will provide training in personal and social development, employability training and professional and technical training. It is designed to enable participants to maximise their potential at a speed relevant to the individual's ability."
Apprenticeships NI were defined at 4.1 in the following way:
"Apprenticeships NI Level 2 and Level 3 is an all age apprenticeship provision for employed people who are contracted to work a minimum of 21 hours or more per week. The programme provides an opportunity to work towards completing an industry approved apprenticeship framework at Level 2 and/or Level 3 including a relevant competence based qualification (previously referred to as National Vocational Qualification (NVQ)) and, a knowledge based qualification where appropriate to the apprenticeship framework (previously referred to as Technical Certificate), and Essential Skills."
[47] How then were these aims to be achieved? At 13.1 of the same document under the rubric Achievement Indicator it is stated that:
"In each of Training for Success and Apprenticeships NI the training outcomes are clearly defined as targeted qualifications. These will be recorded in the Trainee's Personal Training Plan (TPTP). The achievement of qualifications will be recorded via TMS at each Supplier's claim for Output Rated Funding (ORF) payments. As an on-going achievement indicator for individual suppliers, the Client will monitor ORF and will develop an indicator based on the percentage of achievers against leavers. The Client will reserve the right to publish these achievement outcomes." (Emphasis added).
[48] Put simply, the programmes were designed to help participants achieve appropriate qualifications in the skills relevant to their area of training. The client (the Department) identified these as "targeted qualifications", and in my opinion it must have been obvious to a tenderer reading that passage that the Department intended to evaluate these schemes by assessing the qualifications obtained by the participants.
[49] I emphasise this because when one comes to consider what is meant by "outcomes" in SC1 what could be more natural and appropriate than to ask what degree of success the tenderer had with such exercises in the past and asking for information to enable that degree of success to be assessed? In the context of this contract, success rates were plainly going to be measured in terms of the achievement by the participants in gaining relevant qualifications. Therefore, when the Department asked about "outcomes" in my judgement the only information it could logically be interpreted as seeking was not the detail of the type of course that had been offered by the tenderer in relation to such courses as the tenderer wished to refer to, but what degree of success the tenderer had achieved for its participants in other training programmes when it came to obtaining qualifications.
[50] This exercise was unmistakably designed to increase the number of relevant technical qualifications of those who would participate in both of the programmes. In an age where every form of educational endeavour, whether at secondary school level, or post-secondary school level, be it vocational, university, technical or professional training, is measured and assessed, in my opinion the only logical meaning to be attributed to the word "outcomes" in the commercial context of the contract for which tenderers were being invited to bid was to provide the type of data to which Mr McVeigh referred in his affidavit. These have been set out in extenso at [19] in the trial judge's judgment and it is unnecessary to repeat them all. The most significant in the present context is that which appears at [19] (a):
"No specific evidence was presented to demonstrate performance from 2007. The obvious way to do this is to say, for example, that in a particular year the Plaintiff trained XX persons of whom YY completed the course and XX obtained YY qualification while XX obtained ZZ qualification and AA per cent went straight into employment. Indeed, of the 62 Stage 1 tenders received, 58 contained performance data … either in tabular form or as part of the written narrative."
I shall refer to the 58 other tenderers out of the total of 62 later, but in my opinion "outcomes" can only mean in this context results of the type described by Mr McVeigh in the passage just quoted.
[51] As the trial judge stated at [40]:
"outcome" is an ordinary word, an unpretentious and unsophisticated member of the English language."
I agree. It is unhelpful to engage in a philological analysis of possible synonyms to the extent that the trial judge did, nor do I consider that the exercise "lends some weight to the plaintiff's case". One of the principal attributes of the English language is its flexibility, and words have to be interpreted in the context in which they are found. In my judgement the meaning of "outcomes" has to be viewed in the commercial context of this proposed contract, the purpose of which was to improve the level of qualifications obtained by those who would participate in the various courses, and that the way that this was to be measured was to evaluate the "targeted qualifications" which must mean some form of moderated evaluation of the success or otherwise of the participant on the relevant course.
[52] I also consider that the trial judge fell into error when he described Mr McVeigh's evidence that "outcomes" has a well- recognised meaning in the industry as "bare and unsubstantiated". This is to ignore what the trial judge had already described [37] as "the construction applied, apparently or by inference, by the large majority of bidders". Of the 62 tenderers, no fewer than 58 provided data of the type sought by the defendant, although it transpired that some of the 58 failed SC1 because their submissions were unsatisfactory in other respects. As 58 out of 62 interpreted outcomes in the way Mr McVeigh suggested, far from being a "bare and unsubstantiated" assertion on Mr McVeigh's part, the meaning of outcomes for which he contended was identified, apparently without any difficulty whatever, by virtually all of a very large number of people who tendered for this contract. I consider this to be extremely strong evidence that "outcomes" was not ambiguous, but was a clear, transparent, and indeed self-evident, term which required a tenderer to provide data of the type which virtually every other tenderer was able to recognise as appropriate other than the plaintiff. The trial judge did not refer to this evidence at all in paragraph 40 of his judgment and I consider that he was wrong not to take it into account, and not to give it very considerable weight.
[53] Other reasons advanced by the trial judge for rejecting the construction advanced by the Department for the word "outcomes" were (a) the formulation of an earlier draft of SC1, and (b) the equivalent selection criteria in two other comparable selection exercises. I consider that in principle no weight should be given to either of these matters, just as drafts or preliminary agreements are inadmissible in aid of the interpretation of a contract, see the cases cited in Chitty on Contracts 30th ed., Vol. 1 at 12-119. The issue for the court is whether "outcomes" was unclear in the context of this tender. What was said in other documents, or in earlier drafts of this document, makes it likely that the court will be diverted from its proper function of considering whether SC1 was ambiguous by investigating and evaluating other documents when the court's sole focus should be on what the terms in this document mean.
[53] At this point I should say that I respectfully disagree with Girvan LJ at [40](f) above when he attributes some significance to the Department changing the words of the criterion in later tenders. This is not something that should be taken into account, just as in the law of negligence it is impermissible to lead evidence of changes in an employer's practices after an allegedly tortious occurrence. In situations of this sort the court should adopt the approach laid down by the House of Lords in James Millar & Partners Ltd. v Whitworth Street Estates (Manchester) Ltd [1970] AC 572 at 603 that "it is not legitimate to use as an aid in the construction of the contract anything the parties said or did after it was made." Changes and refinements are always being made to documents and processes in the light of experience, but that does not mean that the previous practice or provision was necessarily defective.
[54] Nor do I regard it as significant that Mr Lynas initially took the view that the plaintiff met the terms of SC1. The panel as a whole discussed the issue and he ultimately agreed with the majority. That he initially took a different view is irrelevant unless he allowed his genuinely and properly held belief to be overborne, and there is no suggestion that that was the case. The process of reasoning together that this panel engaged in involved a willingness on the part of all of those involved to recognise after discussion that their original view may be mistaken. That is what every criminal or civil jury does in order to try to reach a verdict. To rely on views abandoned by one member of the panel as evidence of ambiguity, is, in my respectful opinion, as flawed as the argument that because a juror in a criminal case dissents from the majority view the view of the majority is in some way suspect.
[55] SC1 required tenderers to demonstrate that they had the necessary experience and that had to be done "through the use of an example (or examples) of programmes delivered within the last three years". Had SC1 stopped at that point then the plaintiff's argument might have much greater validity. But it did not, because part of the way in which the necessary experience was to be demonstrated was to include dates, outcomes and explanations as to why the experience was considered to be relevant, and as I have sought to show I consider that the only logical fashion in which that could be achieved was to include data showing the results of the courses provided by the plaintiff in the past, and not, as the plaintiff, describe the nature of the courses. For all of these reasons I am of the view that the first ground of the plaintiff's claim fails because, contrary to the argument accepted by the trial judge, SC1 was clear and unambiguous.
[56] The second limb of that part of the plaintiff's case is that the Department was guilty of a manifest error in the way it referred to grades attained in 2008 and 2009 in Education and Training Inspectorate (ETI) inspections. I can deal with this briefly. At [41] of his judgment the trial judge said that the "missing" information must have been available to ETI in 2008, and was "built into" the ETI Grade 2 awarded to the plaintiff in 2010. That may be so, but this is to ignore that the considerations addressed by ETI were different to those of SC1. There may, but need not necessarily have been, a commonality of some information between ETI grades and the required SC1 data, but it was for the tenderer to provide the data, not for the Department to make assumptions about the implications of other material.
[57] That was abundantly clear from Mr McVeigh's evidence which was set out by the trial judge at [19](g), and in my view the trial judge did not give proper weight to this distinction in his assessment of Mr McVeigh's evidence and his conclusion. It is significant that in the report on the plaintiff's overall performance dated 3 June 2010 (p. 487 of the appeal book) explaining why a Grade 2 ETI had been awarded, one of the factors referred to was "the use of data throughout the report". ETI was not comparing like for like with the requirements of SC1 because the ETI grade exercise considered whether or not data was used, not what the data revealed. It is also necessary to bear in mind that the Department said in the ITT document under the heading Assumptions:
"Tenderers must not make assumptions that either [CPD] or the client has prior knowledge of their organisation or their service provision. Tenderers will only be evaluated on the information provided in their response …"
[58] In a question and answer session at a pre-Procurement Information Session held at the Dunsilly Hotel on 15 November, and the plaintiff accepted that he attended the Dunsilly Hotel session, there appear the following question and answer:
"Q. Will ETI grades be considered in the selection phase?
A. Tenderers are free to submit evidence that will help demonstrate compliance with the selection criteria, including relevant external quality assessments."
I consider that this clearly indicates that evidence such as ETI is merely a supplement to, and not a substitute for, the requirement for data that is inherent in the use of the word outcomes in SC1. Therefore, in my opinion, it does not assist the plaintiff to call in aid of his flawed application the reference to ETI, because ETI did not necessarily involve an analysis of "outcomes", nor do I consider that the Department was saying that ETI was an acceptable substitute for data.
[59] The second ground upon which the plaintiff mounts his challenge has been described as the clarification issue. The Department sought further information from some 13 tenderers, but did not do so in the plaintiff's case, and the question is therefore whether the Department should have gone back to the plaintiff to "clarify" what his tender meant because he had failed to give any data relating to the outcomes of programmes which he had provided on other occasions. The trial judge did not have the benefit of the decision of the European Court of Justice in SAG ELV [2012] EUECJ C-599/10, because the judgment in that case was given on 29 March 2012, after the judgment in this case. At [40] of its judgment the ECJ observed that Article 2 of Directive 2004/18:
"… does not preclude, in particular, the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender."
[60] Subsequent submission of the data in issue in this case could not, in my opinion, be characterised as either mere clarification, or relate to "obvious material errors", because the absence of the data was fundamental to the validity of the tender. The subsequent provision of such data would, in reality, have amounted to a new tender. It is clear from the passage which I have cited that even if one characterises the failure of the plaintiff to submit the data as an "obvious material error", that is insufficient to justify a request for clarification because it is subject to the proviso that an amendment "does not in reality lead to the submission of a new tender", and had that been done in this case that is precisely what would have happened. In my opinion had the Department contacted the plaintiff and asked for the information which the plaintiff had failed to give concerning outcomes it would in reality lead to the submission of a new tender and that would have contravened the test propounded by the ECJ in SAG ELV.
[61] The trial judge relied upon the decision in Tideland, [37] and [39] of which contain the relevant principles. At [37], the ECJ stated that:
"In cases where the terms of a tender itself and the surrounding circumstances known to the Commission indicate that the ambiguity probably has a simple explanation and is capable to being easily resolved, then in principle, it is contrary to the requirements of good administration for an evaluation committee to reject the tender without exercising its power to seek clarification. A decision to reject a tender in such circumstances is liable to be vitiated by a manifest error of assessment on the part of the institution in the exercise of that power."
[62] Tideland requires the court to have regard to (a) the terms of a tender itself, and (b) the surrounding circumstances known to the client, (c) the client has to be satisfied that there is an "ambiguity", (d) the ambiguity probably has to have a simple explanation, and (e) the ambiguity is capable of being easily resolved. However, whilst on one view that might be interpreted as giving a court a wide power to require the client to give an unsuccessful tenderer a further opportunity to mend its hand, the circumstances in Tideland were exceptional, and it must be doubted whether the ECJ intended this to be interpreted in as generous a fashion as the trial judge's decision necessarily involves. Were the Department to provide an opportunity to a tenderer to remedy insufficient evidence by providing additional information, where the information would amount to a new tender that opportunity offends against the principle in SAG ELV.
[63] In this case the Department did seek clarification from a significant number of tenderers, but the questions asked of all the other tenderers were permissible because they related to obvious ambiguities such as whether named individuals had completed identified courses, or what they were teaching, all matters described in detail at [29] of the trial judge's judgment. These were minor ambiguities of a completely different nature to, and significantly less important than, the data which the plaintiff should have submitted in order to comply with SC1. I agree with the description of Mr Giffin when he referred to these questions "as an exercise in dotting I's and crossing T's in relation to what had already been provided, not in seeking wholly fresh information".
[64] The trial judge referred to a number of English authorities and it would seem from his reference to these as demonstrating an "austere" approach in those cases did not commend itself to him. If that was his view then I respectfully disagree with that view. In my opinion the outcomes of these cases demonstrate that a strict view is taken of what can be sought by way of clarification without undermining the level playing field for all tenderers which the European jurisprudence emphasises. As David Richards J observed at [56] in Leadbitter and Co Ltd v Devon CC [2009] EWHC 930 (Ch):
"… a waiver of terms which are stated as applying without exception is a departure from the terms of the procurement process and is therefore an exceptional course. A waiver of such terms carries the very risks of unequal treatment, discrimination and a lack of transparency which the contracting authority is required to avoid. It is to be noted that the Commission's action under review in Tideland Signal involved a failure to exercise an express power under the invitation to tender, not a failure to waive express terms."
That approach was expressly approved by the Court of Appeal in Azam and Company, Solicitors v Legal Services Commission [2010] EWCA Civ 1194 at [36]. I agree with the approach of David Richards J.
[65] Mr McLaughlin for the plaintiff pointed to the disastrous consequences for the plaintiff were it to be excluded from this procurement exercise. I recognise that that may well be so, but the "harsh economic consequences of the inability to tender" to adopt the words of David Richards J in Leadbitter should not induce the court to accommodate a failure by the plaintiff who misunderstood the clear and simple wording in the context of this tender. It is irrelevant that he could have produced the required information if he had properly understood it. If he had any doubts about the meaning of "outcomes" it was open to the plaintiff to seek clarification in the pre-tender process as indeed he did in relation to several other matters, see pages 319, 343, 348 and 349 of the appeal book. To have asked the plaintiff why he had not provided data which virtually every one of a very large number of tenderers realised was required as part of the tender process would have been to invite him to reformulate his tender in a fundamental respect, and would have led to the submission of a new tender. That would have amounted to unequal treatment, discrimination and a lack of transparency so far as other tenderers were concerned which the Department as the contracting authority must avoid. No doubt others who were unsuccessful and whose tenders were also rejected would, had they been given the opportunity to amend their hand, have been able to do so. That would have been an illegal approach for the tendering authority to take.
[66] For these reasons I am satisfied that the plaintiff's case fails, and I would allow the appeal and enter judgment for the defendant.
MORGAN LCJ
[67] I have had the advantage of reading in draft the judgments just delivered by Girvan LJ and Sir Anthony Hart and I am grateful for the assistance that I have derived from them in coming to my conclusion.
Background
[68] The issue in this case is the meaning of "outcomes" in SC1. The ECJ provided guidance on the formulation of award criteria at paragraph 42 of SIAC Construction v Mayo County Council where it said that they should allow all reasonably well informed and normally diligent tenderers to interpret them in the same way. It was common case in this appeal that "outcomes" required evidence of success in the examples of experience to which reference was made by each of the bidders.
[69] The appellant maintained at the trial that in order to satisfy the criterion it was necessary to provide data from the examples relied upon of qualifications, achievements, success rates or positive progression to employment, further education or further training. The learned trial judge notes at paragraph 21 of his decision Mr McVeigh's contention that such a requirement was implicit. It was again common case that the respondent provided no such data and it consequently failed the criterion. Although the evidence submitted by the respondent was discussed by the panel the evaluation of its quality was not the reason for not passing SC1. The absence of data necessarily led to failure.
[70] In the course of this procurement exercise the appellant maintained a clarification register but nothing of relevance emerged from that. It also engaged in a public information session at which questions were posed about the relevance of ETI assessments. The Education and Training Inspectorate (ETI) is an organisation established within the appellant's Department which is responsible for inspecting and reporting on programmes of the kind used by the respondent as examples. The relevant questions and answers were:-
"Q. Does ETI have any input into the process? Will panel understand the ETI Grading system eg grade 2?
A. ETI will not be on the panel. DEL do have an understanding of ETI gradings but gradings outside of NI need clarification…
Q. Will ETI grades be considered in the selection phase?
A. Tenderers are free to submit evidence that will help demonstrate compliance with the selection criteria, including relevant external quality assessment".
ETI had a six grade assessment system in which 1 was excellent, 2 was very good and 3 was good. The remaining assessments ranged from satisfactory to poor. It was the respondent's case that although the provision of data was one method by which success in an applicant's examples could be demonstrated it was not the only method of doing so.
[71] The respondent sought to demonstrate its success in its past examples by referring to its achievements in assessment by ETI. The respondent's submission included the following passage:-
"As part of its current contractual obligations to DEL the organisation was inspected by ETI in November 2008. The organisation was awarded a Grade 3-Good with the comments -
'In the areas inspected the quality of training provided by Oriel Training Services was good. The organisation has important strengths in most of its educational and pastoral provision.'
The organisation continues to develop its services in line with current requirements and invests significantly in supporting improvement and development. A recent inspection of the organisation's development and action plan in June 2010 by the ETI, after considering the development activity over the previous year awarded the organisation a Grade 2-Very Good, representing the top 20% of submissions in Northern Ireland."
Consideration
[72] In order to deal with these competing contentions I will first examine the manner in which the other applicants dealt with the requirement to show outcomes. The appellant relies on this as a strong indicator of how the normally diligent and well informed tenderer would have understood the requirement. I will then go on to examine how the respondent's application was dealt with by the panel responsible for the assessment.
[73] The appellant relied strongly on the assertion by its principal deponent, Mr McVeigh, that of the 62 Stage 1 tenderers 58 provided performance data either in tabular form or as part of the written narrative. Of the three others who, like the respondent, did not submit performance data it was stated that they did not in fact have the experience to deliver such programmes. The implication, therefore, was that the respondent was the only person who had data who interpreted the criterion in the way that he did.
[74] I do not accept that inference. Although there is no specific reference to it in the appellant's affidavits there were in fact thirteen applicants who failed SC1. That means that there were nine others who failed who may or may not have done so as a result of the conclusion by the panel that they had presented inadequate data. In respect of anyone who failed on that basis the papers do not provide any clue as to whether they did so as a result of any misunderstanding of what was required from them. The fact that they must have included some data does not mean that they must be taken to have understood all that was required of them. In my view the only inference that can be drawn from the evidence is that 49 of the 62 tenderers provided data of the kind for which the panel was looking. No inference can be drawn about the understanding of the remaining thirteen tenderers. It follows, therefore, that I consider that this material provides no support for the proposition put forward by Mr McVeigh that the meaning of outcomes for which he contended had a well-known meaning to operators in the industry.
[75] The submitted tenders were marked individually by the four assessors who then met to moderate their assessments. The written assessments individually made by the assessors were available to the learned trial judge. He noted that Mr Lyness initially noted the previous history of work done by the respondent, the Grade 3 obtained in the 2008 ETI inspection and the Grade 2 obtained in the 2010 self-assessment. He concluded on the basis of that evidence that the respondent had passed the criterion.
[76] Mr McVeigh noted "generic outcomes provided not specific regarding achievements, success rates and positive outcomes. I would have expected and wanted more detailing experience. Discuss with panel". He did not conclude in his personal written assessment that the respondent had failed the criterion until the panel had discussed the issue. In his evidence Mr McVeigh stated that he always considered the evidence of the ETI inspections was not what the criterion required but it is significant that he must have considered that the evidence provided satisfied the term "generic outcomes".
[77] The third member of the panel considered "outcomes/experience/past performance not effectively demonstrated". He failed the respondent before the panel discussion on that basis. The written notes of the fourth member of the panel were not contained in the exhibits. The typewritten note records "comments about inspection incorrect. No data on retention, success, progression (panel discuss?)".
[78] It appears, therefore, from their handwritten documents that when the panel met one member had concluded that the respondent had passed the criterion, one had decided that the respondent had failed and two had not yet reached a firm conclusion although the affidavit evidence indicates that these latter two indicated an intention to fail at the panel meeting. If the word "outcomes" had a well-known meaning to operators in the industry that was a most surprising position. The panel discussed the interpretation of outcomes at some length and all eventually agreed to adopt the interpretation for which the appellant now contends. Mr McVeigh accepts that the panel recognised that there were arguments both ways. Even after the panel decision Mr McVeigh contacted CPD to obtain advice as to the basis on which the panel proposed to fail the respondent and it appears that it was only on receipt of advice from an official in CPD which Mr McVeigh asked to be confirmed by a more senior official that the panel made the decision to proceed as it did.
[79] The learned trial judge found that the information considered by the ETI in allocating a grade 3 in the November 2008 inspection included data relating to trainee retention, results and qualifications obtained by trainees and information relating to subsequent training, further education or employment obtained. This covered a three year period up to and including 2008. The 2010 grade 2 was a self-evaluation report and linked development plan relating to the period from March 2009 to March 2010. This included in tabular form data relating to trainee numbers, retention percentages and positive outcomes in relation to three separate training programmes. There was no dispute between the parties that the information considered by ETI included the kind of material which the appellant contends is absent from the respondent's tender.
[80] Mr McVeigh agreed that the missing information must have been supplied to the ETI for its report in 2008. He further agreed that the grade 2 achieved in the 2010 report reflected a good level of performance by the company in achievements, success rates and destinations into positive outcomes. Although these concessions were made with the advantage of seeing the material provided in the report Mr McVeigh accepted that this was built into the grade 2 awarded by ETI. Mr McVeigh proffered some caution about the 2010 report because it was self-reported but agreed that in fact all of those who submitted data were also self-reporting. Nothing therefore turns on this.
Conclusion
[81] The appellant in this case seeks to establish that the panel was correct to adopt a meaning of outcomes which prevented it evaluating evidence of success unless it was accompanied by data. There is no reason why the meaning of outcomes should be so limited unless there is some particular meaning recognised in this commercial context. The appellant has relied heavily on the inferences to be drawn from the submissions by other tenderers but for the reasons set out I do not accept that the inference for which the appellant contended could be drawn.
[82] The only panel member to evaluate the respondent's evidence of success was Mr Lyness and he considered on the basis of his initial evaluation that the respondent had passed the criterion. He clearly could not have considered at that stage that the ETI material could only be supplemental. If one of the experienced assessors came to that conclusion and required 30 minutes of discussion before he was talked out of it I find it impossible to accept that the interpretation reached by him was one that was not open to the hypothetical tenderer. None of the other members of the panel evaluated the evidence and the panel's conclusion as a whole similarly did not evaluate it as the failure of the criterion according to Mr McVeigh was specifically because the tender did not contain data.
[83] The evidence indicates that Mr Lyness changed his approach not because he reconsidered the assessment of the evidence he had made but because he was persuaded that in the absence of data he should not carry out the assessment. I agree, therefore, with the learned trial judge that the panel was guilty of manifest error in that it did not assess the evidence of success submitted by the respondent in determining that he failed the SC1 criterion. In effect the appellant introduced an undisclosed criterion requiring data which in my view would not have been apparent to all reasonably well informed and normally diligent tenderers. I should, of course, make it clear that those participating in the process acted in the utmost good faith and that the effect was unintended.
[84] I can deal with the clarification issue briefly. I have concluded that the appeal should be dismissed because the panel did not assess the evidence as to outcomes submitted by the respondent. It was for the respondent to determine what evidence to submit within the confines of the tender process. To have allowed the respondent to revise its evidence would have been to enable it to submit a different tender. In light of the conclusions that I have reached it would have been improper for the appellant to have sought any further explanation from the respondent on success rates or other data. I agree with Sir Anthony Hart that the clarifications sought by the appellant from other tenderers were appropriate.
[85] For the reasons given I would dismiss the appeal.