RPS Consulting Engineers Limited v Kildare County Council – Adequacy Of Reasons In Standstill Letters

Author:Mr Aaron Boyle
Profession:Arthur Cox
 
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This case involved a challenge by RPS about the adequacy of the reasons given by Kildare County Council (the "Council") in the standstill letter provided to RPS notifying it that it had been unsuccessful in a tender process. In his judgment, Mr Justice Humphreys has drawn a number of fundamental conclusions in relation to the requirements set out in the Procurement Regulations regarding the obligation to give reasons to unsuccessful bidders. This judgment is likely to have a significant impact on the information which contracting authorities are obliged to provide in standstill letters and indeed in response to requests for further information and may impact on when time is deemed to run for the purpose of both valid standstill periods and time limits for procurement challenges more generally. In this respect, this judgment is likely to have far reaching practical consequences for both public authorities and bidders. It would not be surprising if there is an appeal to the Court of Appeal.

RPS Consulting Engineering Limited ("RPS") instituted proceedings against the Council complaining about the inadequacy of the reasons provided by the Council to RPS where RPS was unsuccessful in a tender process. RPS was significantly cheaper than the preferred tenderer but lost out on the qualitative criteria.

In order to understand the judgment, it is useful to get a sense of the reasons that were provided by the Council to RPS in the standstill letter:

In response to criterion A1, the reasons provided were as follows "your response to this criterion was of a good standard. However, compared to the successful tenderer, it lacked sufficient specific detail on new studies and reports that would be required going forward." In respect of criterion A2, RPS was told "Your response to this criterion was of a very good standard. However, the successful tenderer provided more relevant and specific experience/lessons learned in recent public works contracts." On Criterion A3, RPS was told "Your response to this criterion was of a good standard. However, the successful tenderer offered a more comprehensive approach to ABP oral hearings and measures to maximise the chance of a successful outcome." The balance of the comments followed in a similar vein, namely that RPS were told whether their response was good, very good or excellent which reflected a scoring methodology which the Council applied to the marking of tenders (this methodology was not disclosed to...

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