Scott & Co (scotland) Llp Against Aberdeenshire Council
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2016] CSOH 64 |
| Date | 26 April 2016 |
| Court | Court of Session |
| Docket Number | CA10/16 |
| Published date | 04 May 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 64
CA10/16
OPINION OF LORD DOHERTY
In the cause
SCOTT & CO (SCOTLAND) LLP
Pursuer;
against
ABERDEENSHIRE COUNCIL
Defender:
Pursuer: McBrearty QC., J.N.M. MacGregor; ADLP Ltd
Defender: O’Neill, Solicitor Advocate; Brodies LLP
26 April 2016
Introduction
[1] On 10 August 2015 the defender advertised a public procurement competition for the provision to it of sheriff officer services. The period of the contract was to be four years with the option of an extension for a further two years. The Public Contracts (Scotland) Regulations 2012 (“the Regulations”) applied to the competition. It was under the open procedure (in terms of regulations 15 and 19). Up to October 2015 the defender had contracted with the pursuer for the provision to it of sheriff officer services.
[2] On 5 January 2016 the pursuer was advised that its tender had been unsuccessful. In this action it avers that the defender has breached the Regulations in several respects. The effect of the action has been to prohibit the defender from concluding the agreement (regulation 47(9)). The matter which came before me on the Commercial Roll was a motion by the defender for an interim order to bring that prohibition to an end (regulation 47(9)(b)). I heard the motion on Friday 22 April 2016, and I continued it until Tuesday 26 April 2016 when I gave this decision in open court.
The Regulations
[3] The Regulations provide:
“Part 1 GENERAL
…
4.— Economic operators
(1) In these Regulations, an “economic operator” means a contractor, a supplier or a services provider.
(2) When these Regulations apply, a contracting authority must not treat a person who is not a national of a relevant State or is not established in a relevant State more favourably than one who is.
(3) A contracting authority must—
(a) treat economic operators equally and without discrimination; and
(b) act in a transparent and proportionate manner…
…
Part 5 THE AWARD OF A PUBLIC CONTRACT
30.— Criteria for the award of a public contract
(1) Subject to regulation 18(28) and to paragraphs (6) and (9) of this regulation, a contracting authority must 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) In order to determine that an offer is the most economically advantageous, a contracting authority must use criteria linked to the subject matter of the contract which may include quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period or 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 must 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 must 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.
…
Part 9 APPLICATIONS TO THE COURT
47.— Enforcement of obligations
…
(9) Except in the case of a contract or framework agreement to which regulation 6 applies, and without prejudice to the application of any relevant standstill period, where proceedings under this Part are served on a contracting authority or concessionaire in relation to a contract that has not been entered into or a framework agreement that has not been concluded, the contracting authority must not enter into the contract or conclude the framework agreement unless—
(a) the proceedings are determined, discontinued or disposed of; or
(b) the Court, by interim order, brings to an end the prohibition.
…
48.— Powers and duties of the court
…
(2) In any interim proceedings under this Part the Court may decide not to grant an interim order when the negative consequences of such an order are likely to outweigh the benefits, having regard to the following considerations—
(a) that decisions taken by a contracting authority must be reviewed effectively and, in particular, as rapidly as possible;
(b) the probable consequences of an interim order for all interests likely to be harmed; and
(c) the public interest.
…”
The Invitation to Tender (“the ITT”)
[4] In terms of section 2.1 of the ITT tenderers were required to submit:-
“1. Completed Selection Questionnaire (see Section 6)
2. Completed Award Questionnaire/Method Statement (see Section 7)
3. Price Schedule (see Section 8)
4. Completed and Signed Declaration (see Section 9)”
Section 2.1 also provided:
“Presentations
Tenderers must be willing to attend at the Council, before its Officers, to give a
presentation of how they would satisfy the Council’s requirement as outlined in
this ITT.
Site Visits
The Council may wish to visit the Tenderer’s premises in order to assist its
evaluation of the tender content to satisfy the Council’s requirement as outlined in
this ITT.
Presentations and Site Visits will be included in the scoring for question D1
Section 7.”
Section 2.5 stated that responses would be evaluated against the pre-determined Evaluation Criteria set out in the ITT and that the award would be on the basis of the most economically advantageous tender. The responses of tenderers who reached the award stage would be evaluated against the Award Criteria. Quality was to be given 80% of the overall score and price 20%. The 80% for quality was divided between eighteen Quality Criteria set out in Questions D1 to D18 in Section 7. 20% of the quality score was for Question D1. Section 3 of the ITT was headed “SPECIFICATION”. The subheading for Section 3.1 was “Requirement” and it stated:
“The Council is seeking to secure a supplier for the Provision of Sheriff Officer Services in accordance with the requirements detailed in this document.”
Section 3.1 continued to provide a general description of the services to be supplied. The following sections contained more detailed requirements. For example, section 3.10 stated:
“Remote access
The tenderer must provide remote access to the Council in respect of the Council’s accounts held on the Tenderer’s appropriate computer system (Question D3 Section 7).”
For present purposes it is unnecessary to mention more than the terms of Questions D1, D3 and D11 of the Award Questionnaire:
“D1
You are invited to describe how you plan to deliver the Services to the Council. Please explain in detail how you would deliver the requirements as detailed in the Specification Section 3.1. Your response should include the following details as a minimum:
- Relevant Experience
- Relevant Qualifications
- Collection Methodology for all debt types including details of how you would deal with debts corporately for the Council
- Location of Office base
- Timetable for action following receipt of a debt for collection for all debt types and the timescales for follow up action and for further diligence
- Payment Methods
- Rent Evictions, Notice of Proceedings, Serving of Statutory documents
Site Visits and presentations will be included in the total scoring for this question…
D3
Please detail all communication methods to be used with both the Council and the Customer …
Please provide details on how the Council will remotely access your database in respect of the Council’s accounts held on your system …
D11
Management Information
Please detail what information you propose to provide to the Council to assist them in managing their requirements and managing this contract.
(Please provide examples of the format and content that you propose)…”
The pursuer’s tender and the site visit
[5] The pursuer duly submitted a bid. During the tender evaluation period officers of the defender carried out a site visit during which certain matters were demonstrated and certain information was provided by the representatives of the pursuer in response to questions by the officers.
The award to Stirling Park and the explanation provided by the defender
[6] By letter dated 5 January 2016 the defender advised the pursuer that it had been unsuccessful and that the winning bidder was Stirling Park LLP. The letter explained that while the pursuer’s submission was of a high standard Stirling Park had been given a higher score for quality. In fact, the only scoring difference between the pursuer and Stirling Park related to Question D1. In relation to that question Stirling Park was given the highest possible score (10) whereas the pursuer was given a score of 8. In explanation of the characteristics and relative advantages of the successful tender the defender indicated that access to the pursuer’s website
“was restrictive with debt types not linked together to show a true corporate picture of a debtors (sic) account. We found your system quite complex for debtors and staff members to navigate.
The winning tenderer’s approach provided a more user friendly website and council access. Debts are visible holistically and their technology allows real time updates from both the council and the provider and provided direct access to run management reports. Innovative ideas were also provided on the use of resources in the Aberdeenshire area.”
Following queries by the pursuer the defender issued a...
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