Scottish court applies tenderer test to assessing procurement award criteria

For public authorities struggling with mounting challenges to tenders and increasingly stringent transparency requirements, a recent, common-sense ruling by the Scottish Court of Session is likely provide some relief. On 21 March 2013, the court dismissed an action to set aside the award of a framework agreement by the Common Services Agency for the Scottish Health Service (CSA) on the grounds that the award criteria lacked sufficient clarity. In doing so, the court had to consider the appropriate test to determine whether the award criteria sufficiently met the obligations for transparency and equal treatment. The court concluded that the award criteria must allow ‘all reasonably well-informed and normally diligent tenderers to interpret the criteria in the same way’.

In 2010, the CSA invited tenders for a single-supplier framework agreement to provide certain breast cancer treatment drugs (Tastuzumab) and nursing services to patients in their homes. One of the bidders, Healthcare at Home Limited (HAH), had been providing the services under an earlier contract but lost the bid to a competitor, BUPA. HAH challenged the decision on the basis that the award criteria set out in the Invitation to Tender (ITT) lacked clarity and consequently breached the obligations of equal treatment and transparency under the procurement rules. On 1 May 2012, in a first instance ruling, a commercial judge of the Outer House of the Scottish Court of Session dismissed the claims leading HAH to appeal to the Inner House of the Court of Session…

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