Lianakis case on selection/award criteria does not apply to the utilities procurement regime

In a recent case, Northern Irish Waste Services Ltd v Northern Ireland Water Ltd & Ors (2013), the court in Northern Ireland heard a claim by Irish Waste Services Ltd, a company disappointed in its bid to be awarded a contract for sludge management services by Northern Ireland Water, a utility for the purposes of the Utilities Contracts Regulations 2006.

Among other issues, Irish Waste Services argued that the award criteria were unlawful because they contained elements that should have been properly addressed as selection criteria rather than award criteria. In making this argument, it relied on the EU Case C-532/06 Lianakis (which was later applied in domestic cases such as Lettings International v London Borough of Newham (2008). The Lianakis case had held that the drafting of the applicable EU Directive 92/50 required a clear distinction to be maintained between (1) criteria that are aimed at identifying the tender that is the most economically advantageous (i.e. the award criteria) and (2) those criteria ‘instead essentially linked to the evaluation of the tenderer’s ability to perform the contract in question’ (i.e selection criteria).

The claimant bidder in this case noted that many of the questions asked at award stage were around elements such as bidder experience, equipment and workforce, and argued that these were actually selection criteria rather than award criteria and that the procurement had therefore fallen foul of the principles in Lianakis

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