In a recent opinion from a preliminary proof on the merits, the Scottish Court in OLM Systems v Fife Council [2020] CSOH 95 has reconfirmed an authority's wide margin of appreciation in setting rules for a qualitative assessment and verified the established RWIND tenderer test.

Background

OLM, Fife’s incumbent IT provider, came third in Fife's procurement for a contract to provide a comprehensive new software system. OLM alleged (among other things) that:

• the winning tenderer should have been disqualified for exceeding a mandatory maximum budget, based on a tenderer's understanding of the clause specified in the invitation to tender (ITT); and
• Fife's scoring system was unlawful because the procedure for consensus scoring had not been published, save for a scoring key that graded marks between zero and ten, and/or Fife failed to adequately supervise by not giving specific directions as to how to arrive at consensus scoring.

This was a two-stage approach to consensus scoring; subject matter expert evaluators first marked the tenders individually and then the evaluators as a group debated each score (moderation), in order to arrive at an agreed score.  

The evidence showed that there had been a fairly robust debate by the group in reaching the consensus scores. However, there was no minute of any of these meetings other than a record of the consensus scores. OLM complained that it was unclear from the evaluators’ notes what approach was adopted in order to achieve the required consensus and that the consensus scores failed to reflect the scores of the individual evaluators in any transparent way. 

Outcome

As OLM did not allege that a two-stage process was unlawful, all it could do was challenge the evaluation on grounds that the panel misconstrued specified criteria, misdirected themselves, or came to an irrational decision. OLM did not allege that the evaluators had mis-applied the criteria and so the court questioned what more was required to govern the decision-making process.

It was confirmed that the absence of a mathematical correlation does not imply that the process was otherwise irrational or unreasoned. Instead, as the term “moderation” suggests, it is to be a "collective process of debate, involving a give and take of different views, as part of the qualitative assessment by a group of evaluators in order to arrive at a single consensus score." It was not necessary or a legal requirement for Fife to further elaborate how the moderation phase was to be conducted.

When considering the interpretation of the disqualification clause, the court adopted the RWIND test. This is an objective standard whereby the court is to make a factual assessment, taking account of all the circumstances of the case. While evidence from the parties may assist the court, the question cannot be determined by what the parties understood the clause to mean. The court disagreed with OLM's interpretation of the disqualification clause.

Takeaways

Authorities have a wide margin of appreciation to set detailed directions to be followed (or not) in a qualitative assessment and the absence of procedural guidance is not in and of itself unlawful. Absent any error or breach of substantive or procedural duty (equal treatment, non-discrimination and transparency), the court found that a contracting authority must be allowed to freely make its assessment unconstrained by the type of procedural directives that OLM sought to impose here to Fife's qualitative selection criteria.  

Finally, the test for how a RWIND tenderer would have understood the tender terms is an objective test for the court to determine. Lengthy evidence from the parties on how they interpret a clause in the ITT is therefore unnecessary.