Reasons

• EU
  • Directive 2014/24

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    • Article 55 Informing candidates and tenderers
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      1.   Contracting authorities shall as soon as possible inform each candidate and tenderer of decisions reached concerning the conclusion of a framework agreement, the award of the contract or admittance to a dynamic purchasing system, including the grounds for any decision not to conclude a framework agreement, not to award a contract for which there has been a call for competition, to recommence the procedure or not to implement a dynamic purchasing system.

      2.   On request from the candidate or tenderer concerned, the contracting authority shall as quickly as possible, and in any event within 15 days from receipt of a written request, inform:

      (a)	any unsuccessful candidate of the reasons for the rejection of its request to participate,

      (b)	any unsuccessful tenderer of the reasons for the rejection of its tender, including, for the cases referred to in Article 42(5) and (6), the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements,

      (c)	any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement,

      (d)	any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers.

      3.   Contracting authorities may decide to withhold certain information referred to in paragraphs 1 and 2, regarding the contract award, the conclusion of framework agreements or admittance to a dynamic purchasing system, where the release of such information would impede law enforcement or would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or might prejudice fair competition between economic operators.

    • Article 84 Individual reports on procedures for the award of contracts
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      1.  For every contract or framework agreement covered by this Directive, and every time a dynamic purchasing system is established, contracting authorities shall draw up a written report which shall include at least the following:

      (a) the name and address of the contracting authority, the subject-matter and value of the contract, framework agreement or dynamic purchasing system;

      (b) where applicable, the results of the qualitative selection and/or reduction of numbers pursuant to Articles 65 and 66, namely:

      (i) the names of the selected candidates or tenderers and the reasons for their selection;

      (ii) the names of the candidates or tenderers rejected and the reasons for their rejection;

      (c) the reasons for the rejection of tenders found to be abnormally low;

      (d) the name of the successful tenderer and the reasons why its tender was selected and, where known, the share of the contract or framework agreement which the successful tenderer intends to subcontract to third parties; and, where known at this point in time, the names of the main contractor’s subcontractors, if any;

      (e) for competitive procedures with negotiations and competitive dialogues, the circumstances as laid down in Article 26 which justify the use of those procedures;

      (f) for negotiated procedures without prior publication, the circumstances referred to in Article 32 which justify the use of this procedure;

      (g) where applicable, the reasons why the contracting authority has decided not to award a contract or framework agreement or to establish a dynamic purchasing system;

      (h) where applicable, the reasons why other means of communication than electronic means have been used for the submission of tenders;

      (i) where applicable, conflicts of interests detected and subsequent measures taken.

       

      This report shall not be required in respect of contracts based on framework agreements where these are concluded in accordance with Article 33(3) or point (a) of Article 33(4).

      To the extent that the contract award notice drawn up pursuant to Article 50 or Article 75(2) contains the information required in this paragraph, contracting authorities may refer to that notice.

      2.  Contracting authorities shall document the progress of all procurement procedures, whether or not those are conducted by electronic means. To that end, they shall ensure that they keep sufficient documentation to justify decisions taken in all stages of the procurement procedure, such as documentation on communications with economic operators and internal deliberations, preparation of the procurement documents, dialogue or negotiation if any, selection and award of the contract. The documentation shall be kept for a period of at least three years from the date of award of the contract.

      3.  The report, or its main elements, shall be communicated to the Commission or the competent authorities, bodies or structures referred to in Article 83 where they so request.

    • Recital 82
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      It should be clarified that the information concerning certain decisions taken during a procurement procedure, including the decision not to award a contract or not to conclude a framework agreement, should be sent by the contracting authorities, without candidates or tenderers having to request such information. It should also be recalled that Council Directive 89/665/EEC (14) provides for an obligation for contracting authorities, again without candidates or tenderer having to request it, to provide the candidates and tenderers concerned with a summary of the relevant reasons for some of the central decisions that are taken in the course of a procurement procedure. It should finally be clarified that candidates and tenderers should be able to request more detailed information concerning those reasons, which contracting authorities should be required to give except where there would be serious grounds for not doing so. Those grounds should be set out in this Directive. To ensure the necessary transparency in the context of procurement procedures involving negotiations and dialogues with tenderers, tenderers having made an admissible tender should, except where there would be serious grounds for not doing so, also be enabled to request information on the conduct and progress of the procedure.

  • Directive 89/665 (Remedies Directive)

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    • Article 2 Requirements for review procedures
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      9.  Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given.

    • Article 2a Standstill period
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      1.  The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.

      2.  A contract may not be concluded following the decision to award a contract falling within the scope of Directive 2014/24/EU or Directive 2014/23/EU before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

      Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.

      Candidates shall be deemed to be concerned if the contracting authority has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.

      The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:

      – a summary of the relevant reasons as set out in Article 55(2) of Directive 2014/24/EU, subject to Article 55(3) of that Directive, or in the second subparagraph of Article 40(1) of Directive 2014/23/EU, subject to Article 40(2) of that Directive, and

      – a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph.

• Ireland
  • SI 130/2010 European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010

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    • Regulation 5 Standstill Period
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      (3) The standstill period for a contract begins on the day after the day on which each tenderer and candidate concerned is sent a notice, in accordance with paragraphs (2) and (3) of Regulation 6, of the outcome of his or her tender or application.

    • Regulation 6 Notices to unsuccessful tenderers and candidates
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      (1) The notice referred to in Regulation 5(3), or a notice to an unsuccessful tenderer for a contract based on a framework agreement or dynamic purchasing system, shall be as set out in this Regulation.

      (2) Such a notice—

      (a) shall inform the candidates and tenderers concerned of the decisions reached concerning the award of the contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system, including the grounds for any decision not to award a contract for which there has been a call for competition, conclude a framework agreement, recommence the procedure or implement a dynamic purchasing system,

      (b) shall state the exact standstill period applicable to the contract, and

      (c) for each unsuccessful tenderer or candidate, shall include—

      (i) in the case of an unsuccessful candidate, a summary of the reasons for the rejection of his or her application,

      (ii) in the case of an unsuccessful tenderer, a summary of the reasons for the rejection of his or her tender.

      (3) In the case of a tenderer who has submitted an admissible tender (that is, a tender that qualifies for evaluation under the rules of the relevant tender process), the summary required by paragraph (2)(c)(ii) shall comprise—

      (a) the characteristics and relative advantages of the tender selected,

      (b) the name of the successful tenderer, or, in the case of a framework agreement, the names of the parties to it, and

      (c) in the cases referred to in Regulation 42(10) and (11) of the Public Authorities’ Contracts Regulations, the reasons for the contracting authority’s decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements.

      (4) In the case of an unsuccessful candidate, the information to be provided under paragraph (2)(c)(i) may be provided by setting out—

      (a) the score obtained by the candidate concerned, and

      (b) the score achieved by the lowest-scoring candidate who was considered to meet the per-qualification requirements, in respect of each criterion assessed by the contracting authority.

      (5) In the case of an unsuccessful tenderer, the information to be provided under paragraph (2)(c)(ii) and subparagraphs (a) and (b) of paragraph (3) may be provided by setting out—

      (a) the score obtained by the unsuccessful tenderer concerned, and

      (b) the score obtained by the successful tenderer in respect of each criterion assessed by the contracting authority.

      (6) In the case of a framework agreement to which more than one tenderer has been admitted, the information to be provided to each unsuccessful tenderer under paragraph (2)(c)(ii) may be provided by setting out—

      (a) the scores obtained by the tenderer concerned in respect of each criterion assessed by the contracting authority, and

      (b) the scores obtained in respect of each criterion assessed by the contracting authority by the lowest scoring tenderer who was admitted to the framework.

      (7) However, a contracting authority may decide to withhold any information referred to in paragraph (2)(c) regarding the award of a contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system if the release of such information—

      (a) would impede law enforcement,

      (b) would otherwise be contrary to the public interest,

      (c) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or

      (d) might prejudice fair competition between economic operators.

• UK
  • Procurement Act 2023

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    • Section 50 Contract award notices and assessment summaries
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      Section 50 – Contract award notices and assessment summaries

      (1)        Before entering into a public contract, a contracting authority must publish a contract award notice.

      (2)        A “contract award notice” means a notice setting out—

      (a)        that the contracting authority intends to enter into a contract, and

      (b)        any other information specified in regulations under section 95.

      (3)        Before publishing a contract award notice in respect of a contract awarded under section 19 (award following competitive tendering procedure), a contracting authority must provide an assessment summary to each supplier that submitted an assessed tender.

      (4)        An “assessment summary” means, in relation to an assessed tender, information about the contracting authority’s assessment of—

      (a)        the tender, and

      (b)        if different, the most advantageous tender submitted in respect of the contract.

      (5)        In this section, an “assessed tender” is a tender which—

      (a)        was submitted in respect of the contract and assessed for the purposes of determining the most advantageous tender under section 19(1), and

      (b)        was not disregarded in the assessment of tenders.

  • The Procurement Regulations 2024 (SI No. 692 of 2024)

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    • Regulation 31 Assessment Summaries
      View section / regulation
      

      Regulation 31 – Assessment summaries

      (1) This regulation sets out what information must be included in an assessment summary provided to a supplier under section 50(3) of the PA 2023.

      (2)        In the case of the most advantageous tender, the information is—

      (a)    the name of the supplier,

      (b)   a contact postal address and email address for the supplier,

      (c)    the unique identifier for the supplier,

      (d)   in respect of the award criteria for the public contract—

      (i)            the award criteria, including the assessment methodology, set out in full, or a summary of the award criteria including—

      (aa) the title of each criterion,

      (bb) the relative importance of each criterion, and

      (cc) how each criterion was to have been assessed by reference to scores and what scores were to have been available for each criterion, and

      (ii)           if the award criteria, including the assessment methodology, are not set out in full in the assessment summary, an indication of where the full version can be accessed, and

      (e)    how the tender was assessed against the award criteria by reference to scores including—

      (i)            the score determined for each award criterion and—

      (aa) an explanation for that score by reference to relevant information in the tender, and

      (bb) where an award criterion includes sub-criteria for assessment, an explanation of how the tender was assessed by reference to each sub-criterion, and

      (ii)           the total score and any sub-total scores.

      (3)        In the case of any other assessed tender, the information is—

      (a)    the information referred to in paragraph (2)(a) to (d) in respect of the tender,

      (b)   the information as referred to in paragraph (2)(e) in respect of the tender, but only to the extent that the tender was assessed against the award criteria,

      (c)    any further explanation of why the public contract is not being awarded to the supplier including, where the tender was disqualified under the assessment methodology under section 23(3) of the PA 2023, the reasons for that disqualification

      (d)   the information referred to in paragraph (2)(e) in respect of the most advantageous tender.

      (4)        All assessment summaries in respect of a public contract which are provided by a contracting authority to suppliers in accordance with section 50(3) of the PA 2023 must be provided to each supplier at the same time.

      (5)        Nothing in this regulation prevents a contracting authority from providing other information that relates to the same procurement in an assessment summary.

• England and Wales
  • Healthcare at Home Limited v The Common Services Agency [2014] UKSC 49 (Lord Reed)

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    Jurisdiction: England and Wales

    Statements of general principle about the provision of reasons; lower courts' decisions that adequate reasons were given were left undisturbed where no error of law

    “17 As I have explained, article 41 of Directive 2004/18 imposes on contracting authorities a duty to inform any unsuccessful candidate, on request, of the reasons for the rejection of his application. Guidance as to the effect of that duty can be found in the judgment of the Court of First Instance in Strabag Benelux NV v Council of the European Union (Case T-183/00) [2003] ECR II-138, paras 54-58, where the court stated (para 54) that the obligation imposed by an analogous provision was fulfilled if tenderers were informed of the relative characteristics and advantages of the successful tenderer and the name of the successful tenderer. The court continued (para 55):

    “The reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the court to exercise its supervisory Jurisdiction.”

    The Court of Justice stated in Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission of the European Communities (Case C-561/10 P), judgment of 20 September 2011 (unreported), paras 25 and 27, that the contracting authority is not obliged to produce a copy of the evaluation report or to undertake a detailed comparative analysis of the successful tender and of the unsuccessful tender.”

  • Lancashire Care NHS Foundation Trust v Lancashire County Council [2018] EWHC 1589 (TCC) (Stuart Smith J)

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    Jurisdiction: England and Wales

    Insufficient reasons were given for the scores that were awarded; evaluation notes did not provide the reasons; award decision set aside

    Inadequate Reasons

    “51 In Healthcare at Home Limited v The Common Services Agency [2014] UKSC 49, Lord Reed (with whom the other Justices agreed) said at [17]:

    “As I have explained, article 41 of Directive 2004/18 imposes on contracting authorities a duty to inform any unsuccessful candidate, on request, of the reasons for the rejection of his application. Guidance as to the effect of that duty can be found in the judgment of the Court of First Instance in Strabag Benelux NV v Council of the European Union (Case T-183/00) [2003] ECR II-138 , paras 54-58, where the court stated (para 54) that the obligation imposed by an analogous provision was fulfilled if tenderers were informed of the relative characteristics and advantages of the successful tenderer and the name of the successful tenderer. The court continued (para 55):

    “The reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the court to exercise its supervisory Jurisdiction.””

    52 It is no accident that each of these statements of principle refers to the need to provide “reasons” and “reasoning”. With one possible exception, that is not the same as providing a list of factors that were taken into account. The exception would be if each identified factor was awarded equal weight, in which case one could at least identify the numbers of factors whether positive or negative. In that case the greater number would outweigh the lesser (or equality would be achieved). The exception is inapplicable in this case because it is not what happened here with the points listed in Mr Fairclough’s notes. There is no suggestion that all points were treated as being of equal weight and it is clear from the evidence as a whole that they were not. Quite apart from this general point, the possible exception is inapplicable if some points are “highlighted” without any indication of the relative weight applied to normal and highlighted points. In any event, the exception would itself be of little or no value where, as here, the outcome is not binary (positive or negative) but the panel were required to reach a consensus score on each question between 0 and 5.

    53 The importance of clarity as to the decisions and reasons of a moderation panel is reflected in the following observation of McCloskey J in Resource (NI) v NICTS [2011] NIQB 121 at [35], which I respectfully endorse and adopt:

    “I interpose here the observation that, under the current statutory and jurisprudential regime, meetings of contract procurement evaluation panels are something considerably greater than merely formal events. They are solemn exercises of critical importance to economic operators and the public and must be designed, constructed and transacted in such a manner to ensure that full effect is given to the overarching procurement rules and principles.”

    54 In the light of these statements of principle and considerations, I look for the reasons why the Council awarded the scores that it did; and I accept the submission that “a procurement in which the contracting authority cannot explain why it awarded the scores which it did fails the most basic standard of transparency.”

    55 A little further on in the passage from Healthcare at Home that I have cited above, Lord Reed indicated that an Authority is not generally under an obligation to disclose the notes of the moderation. Where, however, the authority relies upon those notes as setting out the written reasons for the evaluators’ decisions, it is to those notes that the Court must look for the reasons and reasoning adopted by the Authority. [*PLM Note: see the judgment of Lord Reed in Healthcare at Home at [17], which does not expressly refer to evaluation notes]

    56 Adopting and applying those principles, I refer first to the factual account of what happened at the moderation meeting at [27] ff above; and in particular to my findings at [40] above. The inconsistency in approach in the recording of the moderation of different questions in each tenderer’s bid means that it is not possible to identify a structure in the notes which reveals the reasoning process adopted by the panel that led to and explains their consensus scores on a given question. Furthermore, although the witnesses called by the Council gave broadly similar accounts of the process that was followed, their evidence was not congruent either as to the process or the reasoning that was deployed in the course of the process. This is not surprising; nor is it intrinsically a criticism of the panel members or Mr Fairclough: see [32] above. But it does emphasise the critical importance of being able to find the reasons and reasoning that led to the scores in the notes themselves.

    57 In their closing submissions, the Trusts concentrate on four questions:

    i) Virgin Q2: there is nothing more than lists of positive and negative scores, with no highlighting or commentary. Those lists are not a full account of the discussion even if they were comprehensive as lists of the points that were mentioned, which is uncertain for the reasons given above. Mr Fairclough was right to accept that the only recorded agreement is as to the consensus score that was awarded. There is no account or explanation of any discussion or the reasoning process that led to that consensus score. The notes do not explain why the panel awarded the score they did for this question;

    ii) Virgin Q3 and Q5: see [35] and [37]-[39] above. To the extent that the notes were at any stage a record of the discussion of the moderation, they have been corrupted by the interpolation of the additional material, with the result that it is not possible to identify what forms part of the original note and what does not. If one eliminates the passages where the comparative approach is adopted, the only clue apart from the listing of positive and negative points for Q3 is “… this was a very robust answer”. At its highest, for Q5 there is one sentence which could, if taken on its own, appear to be some justification for awarding Virgin a 4: but even that is corrupted by reference to measures “listed below” which are stated in comparative terms. It is therefore not possible to understand the reasons or reasoning by reference to any clear statement in the notes;

    iii) Trusts Q6: very little was provided in addition to a list of points. I accept the submission that merely to say that “the panel agreed some good elements were present, the response was better than acceptable following a discussion of sub-criteria applied” does not give any substantial information about what considerations led the panel to conclude that 3 was an appropriate mark. Mr Fairclough was right to accept that it is not possible to tell from his notes anything beyond that the answer was considered “good”. I conclude that the notes do not explain why the panel awarded the score they did for this question.

    58 It follows that I accept the specific criticisms made by the Trusts in support of this submission. However, in my judgment the deficiencies are not limited to the four questions identified by the Trusts in this part of their submissions. Other examples of general observations that lack content are to be found in the Trusts’ Q1 and Q2 and Virgin’s Q1 and (to a lesser extent) Q7. And, viewed overall, I am satisfied that the notes do not provide a full, transparent, or fair summary of the discussions that led to the consensus scores sufficient to enable the Trusts to defend their rights or the Court to discharge its supervisory jurisdiction. First, there is evidence, which I accept, that other reasons (including some agreed reasons) were in play and are not reflected in the notes. Second, pervasively there is no or no sufficient account of the reasoning and reasons that led panel members to resolve their differences (if they did) so as to arrive at consensus scores.

    59 Lest there be any doubt, I am not suggesting that it was necessary to keep a complete record of what was said or a comprehensive note of every point that was made. I also accept that the amount of detail that an authority is required to provide when giving its reasons may vary from contract to contract, depending on all the circumstances relevant to the contract in question. Although the Tender documents adopted a rather simplistic format and structure, this was a substantial and complex contract and procurement. I reject each of the main limbs of the Council’s response as set out at [48] above. In summary, the negative and positive points are not, without more, themselves reasons or reasoning and the written reasons do not adequately set out the panel’s reasons or reasoning. While the notes record lists of positive and negative points, they do not do so “as comprehensively as possible” or in a way that enables either the Trusts to defend their rights or the Court to exercise its supervisory jurisdiction. The bullet points may provide material that was relevant to the Panel’s reasons and reasoning, but they do not themselves provide the rationale for the consensus scores. And, even where there are comments in addition to the positive and negative points, they do not adequately reveal the panel’s reasons or reasoning.

    60 Drawing these strands together, I have come to the conclusion that the reasons given were not sufficient in law in the circumstances of this case.”

    Remedy

    “The Council submits that any breach of Issue 1(a) is not causative since the Trusts have received far more information and documentation by virtue of disclosure than it was entitled to under the 2015 Regulations and this information would have had no bearing on the scoring of the tender. I do not accept the implied submission that the information that the Trusts have received is a substitute for the provision of proper reasons that fulfil the statutory functions of transparency and equal treatment of economic operators. The Council relies upon the notes of the moderation as providing the requisite reasons, and they do not. Furthermore, this is not a case where evidence provided later has plugged the gap, for the reasons already given about the deficiencies of the Council’s witness evidence. The failure to provide transparent and comprehensible reasons prevents the Court from making a reliable assessment of material error in circumstances where only a very modest adjustment in scores (for either Tenderer) would be decisive. That is sufficient to demonstrate the materiality of the breach under Issue 1(a), in which case it is common ground that the decision of the Defendant to award the tender to Virgin must be set aside.”

  • Bechtel Ltd v High Speed Two (HS2) Ltd [2021] EWHC 458 (TCC) (Fraser J)

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    Jurisdiction: England and Wales

    Reasons claim did not add anything to the case where the court already found that there was a breach of transparency

    Failure to keep minutes not consequential

    “279 Mr Bowsher for Bechtel submitted that a failure on the part of HS2 to comply with its obligations to keep any of the proper records ought to result in Bechtel succeeding upon liability. I reject that submission. There is no justification for such an automatic consequence for a failure to keep proper minutes of this meeting. It would be wholly disproportionate. In my judgment there is a distinction to be drawn between records that show how the scores were reached, and other records of what occurred during the procurement competition as a whole. There is also a distinction to be made between an isolated failure in respect of one set of minutes at one single meeting (such as here), and a widespread failure of the type considered in the Lancashire Care NHS Trust case.

    280 Further, if Bechtel were right on this point, then an absence of records of even a single meeting, in a period of nearly one year, which did not affect the scores awarded in the evaluation, would result in the outcome of the procurement competition being overturned by the court, regardless of the importance of the meeting, and what took place. In my judgment, that would be to impose a counsel of perfection upon contracting authorities and utilities of a type that the Regulations do not require, which is wholly unjustified and which has no proper juridical basis. Such a disproportionate result would follow, on Bechtel’s case, even if, after a full trial and hearing oral evidence from multiple witnesses about that meeting, the court were satisfied (as I am) that nothing had occurred at that meeting which was untoward or in breach of any of the regulations, or in breach of any of the relevant principles, or affected the outcome of the competition. In my judgment, there is no authority for such a draconian result flowing from inadequate minutes of the meeting of 5 September 2018.

    282 In [Lancashire] In that case, the lack of records went to the award of the scores themselves, not to the type of minutes kept of a single meeting held afterwards. In that case, the available records were insufficient to enable the court to discharge its supervisory function. Here, the absence of minutes of the meeting of 5 September 2018 is of a wholly different character. There is an agenda for that meeting, and both Mr Blair and Mr Pybus took notes, of a kind. The absence of proper minutes has made the court’s task more lengthy in deciding what took place, but it is not correct to portray it as preventing the court from exercising its supervisory function. I am content that I have been able to do so, and having heard evidence, I find that no breaches of obligation by HS2 took place in the meeting itself. The rather paltry minutes do not go to diminish the proper records that are available of the evaluation, assessment and moderation, and the sufficient recording and explanation of the scores awarded. The meeting of 5 September 2018 did not affect the scores; it did not affect the outcome of the procurement. It did not last long – about, or slightly less than, one hour – and the HS2 personnel collectively were very careful in terms of what was said. I have heard substantial evidence about the meeting. The single failure is one of keeping proper minutes of the meeting. In my judgment, the failure of HS2 properly to minute that meeting does not entitle Bechtel to any redress, although it may have made these proceedings longer and more expensive than would otherwise have been the case. It may be that it is necessary to consider this further at the costs stage of this liability trial.”

    Duty to Provide Reasons

    “309 Transparency includes the duty to give reasons…

    310 Comprehensive reasons were provided to Bechtel. Here, the standstill letter of 5 February 2019 sent to Bechtel contained a very considerable amount of material – in excess of 104 pages of rationale. Bechtel alleges that the documentation available is insufficient to demonstrate the decisions taken in the evaluation process, and does not contain reasons for the final scores. I reject that submission. I consider that HS2 has kept documentary records sufficient to comply with its obligation of transparency. In European Dynamics Luxembourg SA, Case T-481/14 the General Court quoted the same test from Strabag quoted in Healthcare at Home (in the preceding paragraph of this judgment) and added at [81]:

    “As for a contracting authority’s obligation to state reasons, beyond the principle referred to in paragraph 71 above, it must be remembered that it is apparent from Article 113(2) of the Financial Regulation and Article 161 of the Implementing Rules that a contracting authority fulfils its obligation to state reasons if it confines itself first to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 days from the date on which a written request is received (see judgment of 10 September 2008, Evropaïki Dynamiki v Commission, T-465/04, not published, EU:T:2008:324, paragraph 47 and the case-law cited).”

    (emphasis added)

    311 In my judgment, HS2 has complied with its obligation in this case. I would add one further observation, which has not driven any of my findings, but is worth recording nonetheless. The evidence demonstrates that HS2 were acutely aware, when preparing for this procurement competition, of the risk of a challenge from an unsuccessful bidder. The training materials demonstrate that the case of Energy Solutions v Nuclear Decommissioning Agency was not only at the forefront of the minds of those designing the training, but used as a specific example of ways in which procurement competitions could go wrong. Specific deficiencies in the evaluation in that case (a substantial procurement for a contract worth £4 billion for decommissioning Magnox nuclear reactors and associated facilities) had been identified, and HS2 wished to avoid repeating those mistakes. In other words, lessons had been learned. The training in this procurement for Euston and Old Oak Common appears to have been very thorough, and the evaluation was designed comprehensively to be entirely fair. Two assessors reached a score through consensus, and in a process of moderation, all of which was recorded. Bechtel complain in their written Closing Submissions that “The Moderation Minutes generally do not record what has been said by Moderators”. This is not required. Short of tape-recording every hour of moderation – which would be entirely disproportionate – minutes of moderation will inevitably not amount to a verbatim note. But no contracting authority is required to take a verbatim note of all such moderation and evaluation sessions. There must be a sensible limit to what is required of contracting authorities in terms of recording its evaluations. The court’s role is one of supervisory jurisdiction, not one of micro-managing.”

  • Good Law Project Ltd & Anor, R (On the Application Of) v The Secretary of State for Health and Social Care [2022] EWHC 46 (TCC) (O'Farrell J)

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    Jurisdiction: England and Wales

    Consideration of the duty to provide reasons under general public law principles, as challenger was not a bidder; no breach of the requirement to provide reasons

    “404 The Claimants allege that prior to the issue of proceedings, the Defendant failed to comply with his duty to give clear and sufficient reasons for awarding the contracts under challenge…

    PCR obligation to give reasons

    419 The above cases all concerned consideration of the obligation to provide reasons for the decision in question in the context of duties imposed by the relevant procurement directive or regulations. In this case, the duty imposed by regulation 55 of the PCR does not arise because the Claimants are not unsuccessful tenderers and there was no competitive tender process.

    420 There was a successful challenge by the First Claimant under regulation 50 of the PCR in respect of the Defendant’s failure to publish the PPE contract award notices: Good Law Project Limited v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin). As a result, this is not a challenge that could be, or has been, pursued in these proceedings.

    421 The Defendant produced and provided to the Claimants regulation 84 reports in respect of each of the material contracts and no challenge to them has been pursued in these proceedings.

    422 In consequence, the line of reasoning set out in the authorities relied on by the Claimants is not applicable in this case.

    Public law principles as to the requirement for reasons

    425 [In] the absence of a statutory requirement, there is no general common law obligation on a public authority to give reasons for its decisions but, where the decision is of significant public interest, or raises an issue of procedural fairness, sufficient reasons should be given to enable a potential challenge to be made by way of judicial review, unless there is proper justification for not doing so.

    426 The level of detail required, where reasons are given, will depend on the circumstances of each case. The starting point is the guidance set out in the Pre-Action Protocol for Judicial Review, which provides at paragraph 13:

    “Requests for information and documents made at the pre-action stage should be proportionate and should be limited to what is properly necessary for the claimant to understand why the challenged decision has been taken and/or to present the claim in a manner that will properly identify the issues. The defendant should comply with any request which meets these requirements unless there is good reason for it not to do so. Where the court considers that a public body should have provided relevant documents and/or information, particularly where this failure is a breach of a statutory or common law requirement, it may impose costs sanctions.”

    Adequacy of reasons given

    431 In respect of the first PestFix claim, the Defendant provided details of the offers made by PestFix, the process of consideration of the offers and its decision to award the FPC in its response letter dated 31 July 2020. The Claimants requested in paragraph 32f of their letter dated 10 June 2020 requirements imposed on PestFix so that the Defendant could satisfy itself as to PestFix’s financial standing and technical capabilities or, if none imposed, the basis on which the Defendant was satisfied. The Defendant replied to this request at paragraph 44 of its response, stating that appropriate due diligence was carried out, rejecting the suggestion that regulation 58 imposed mandatory requirements. The basis on which the Defendant considered that PestFix had sufficient financial standing and the PPE would achieve technical compliance was set out in sufficient detail at paragraphs 35 to 40 for the Claimants to determine whether or not to make a challenge. Indeed, the Claimants did make a challenge on the ground that there was inadequate financial and technical due diligence.

    432 The complaint that the Defendant wrongly asserted that it purchased isolation suits as opposed to coveralls from PestFix is not material to the reasons required to be provided for the decision to award the contract in question. In any event, this was explained in the Defendants’ witness statements and documents as a discrepancy in the labelling of the coveralls as isolation suits.

    433 In respect of the Clandeboye claim, the Claimants asked the Defendant at paragraph 51e of its letter dated 29 June 2020 to explain the basis on which Clandeboye was considered to be more suitable than other suppliers and, at paragraph 51i the requirements imposed on Clandeboye so that the Defendant could satisfy itself as to Clandeboye’s financial standing and technical capabilities or, if none imposed, the basis on which the Defendant was satisfied. The Defendant replied to this request at paragraphs 52 and 53 of its response dated 13 July 2020, stating that appropriate due diligence was carried out. The basis on which the Defendant considered that Clandeboye had sufficient financial standing and technical capabilities was set out in sufficient detail at paragraphs 37 to 41 for the Claimants to determine whether or not to make a challenge. The absence of any reference to the amber rating did not impede a challenge on the ground of irrationality. Indeed, the Claimants did make a challenge on the ground that there was insufficient financial and technical verification, specifically relying on its assessment of Clandeboye’s resources. It has chosen not to pursue that challenge in these proceedings having regard to the evidence subsequently provided but it was not incumbent on the Defendant to provide its evidence in advance of the claim.

    434 In respect of the Ayanda claim, the Claimants asked the Defendant at paragraph 59g of its letter dated 13 July 2020 to explain the basis on which Ayanda’s offer was evaluated and at paragraph 59h to explain the basis on which Ayanda was considered to be more suitable than other suppliers. The Defendant replied to this request at paragraphs 12 to 17 of its response dated 29 July 2020, setting out the basis on which the Defendant considered that Ayanda’s offer was acceptable, specifically stating that control measures were required by Ayanda’s bank as risk mitigation. This was sufficient detail for the Claimants to determine whether or not to make a challenge. The absence of any reference to the red rating did not impede a challenge on grounds of irrationality. Indeed, the Claimants did make a challenge on the ground that there was insufficient financial and technical verification, specifically relying on its assessment of Ayanda’s resources.

    435 Contrary to the Claimants’ complaint, the Defendant did refer to the existence of the “High Priority Appraisals Team” in its letter dated 29 July 2020, when responding to the Ayanda letter before claim. In any event, the Claimants were permitted to amend their case to advance a challenge based on the operation of the High Priority Lane and such claim has been scrutinised by the court.

    436 In respect of the second PestFix claim, the Claimants requested in paragraph 10a and 10h of their letter dated 6 November 2020 whether the further PestFix contracts had been handled under a ‘VIP’ process, and the financial due diligence and technical assurance carried out. The Defendant’s response was given in its letter dated 19 November 2020. Ms Whelan-Johnson explains in her fourth witness statement that by this stage, proceedings had been issued in the other claims and permission had been granted on the papers but the oral renewal hearing was pending. Further, the Claimants issued the second PestFix claim on 12 November 2020 without waiting for the Defendant’s response. In those circumstances, it was reasonable and proportionate for the Defendant to await the outcome of oral renewal hearing before providing any further information. Clearly, it did not impede the ability of the Claimants to challenge the award of the further PestFix Contracts.

    437 The complaints made by the Claimants concern specific evidential details that were not provided by the Defendant at the pre-action stage. But there was no obligation on the Defendant to go further than providing reasons for the decisions that it made. It discharged that obligation. It was not required at that stage to undertake a detailed analysis of all evidence before it, particularly given the size of such an exercise in the circumstances of this procurement. When considered against the applicable test, namely, that sufficient reasons must be given for the decisions to allow a realistic prospect of a challenge, the Defendant’s responses clearly satisfied that test.

    438 For the reasons set out above, the court rejects the Claimants’ challenge on Ground 3.”

  • Consultant Connect Ltd v NHS Bath and North East Somerset, Swindon and Wiltshire Integrated Care Board & Ors [2022] EWHC 2037 (TCC) (Kerr J)

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    Jurisdiction: England and Wales

    High Court rejects claim that there was a failure to give reasons in respect of direct awards of PPE contracts during COVID-19 pandemic

    “219 In its amended particulars of claim, CC complains that the CCGs cited as the reason for awarding the A&G contract to Cinapsis that the CCT Framework had been “a strategic procurement choice which allowed us to progress to an award, in the timeline required by the CCG’s involved in the procurement”. That is criticised on the basis that there was time for an open procurement, NHS Bath having extended CC’s contract until 31 July 2021.

    220 CC also complains of another statement published on an academic health network website, to the effect that NHS Gloucestershire’s pilot contract with Cinapsis had proved successful and that “as a result” all three CCGs had procured Cinapsis’s services under the CCT Framework. That is criticised on the basis that the true reason for using the framework was to maximise Cinapsis’s prospects of securing the A&G contract. CC also contends that there should have been a formal record of the reasons for the contract award.

    221 In opening written submissions, CC submitted that the duty of transparency imposes a duty to give reasons and that a true account of the real reasons for Cinapsis’s appointment was not given. CC relied on the analysis of Fraser J in Energy Solutions EU Ltd v. Nuclear Decommissioning Authority [2016] BLR 625, at [278]-[296] leading to his conclusion at [296] that the legality of a decision “will be considered by reference to the reasons made available from the contracting authority to the claimant prior to the issuing of the proceedings”.

    222 That should be the approach, said Fraser J, where at trial the contracting authority “seeks to rely upon different explanations or reasons for its decision … to those communicated to the claimant prior to the issue of proceedings” ([296]). CC also relied on the observation of Stuart Smith J (as he then was) in Lancashire Care NHS Foundation Trust v. Lancashire CC [2018] BLR 532, at [54]: “a procurement in which the contracting authority cannot explain why it awarded the scores which it did fails the most basic standard of transparency”.

    223 In closing, CC criticised NHS Bath’s wish (expressed in an email from Ms Field on 13 January 2021 to Ms House and Messrs Quinn and Prince) that extending CC’s contract then “will disclose to CC that we may be looking to move away from them”; and Mr Quinn’s disingenuous email to Ms Enderby at CC of 19 January 2021, saying that NHS Bath was “still very much in the review stage of the A&G provision”.

    224 On that basis, CC submits that “the statement of reasons provided by the Defendants” was erroneous, non-transparent and unlawful; or alternatively that the CCGs failed to provide any lawful transparent statement of reasons. CC’s case in relation to the giving of reasons, or not giving reasons, or giving reasons that were misleading, therefore appears to be founded on breach of transparency, i.e. of the duty owed to CC as an economic operator, enshrined in regulation 18 of the PCR.

    225 The CCGs submitted that the reasons claim was unclear. They had given ample reasons and explanations, said Ms Hannaford. In closing, she said the Energy Solutions and Lancashire Care cases concerned giving reasons to tenderers and candidates. Here, CC was neither. Further, there is no requirement to give reasons even to candidates or tenderers, let alone more widely, where a contracting authority awards a contract pursuant to a framework, with or without a mini-competition: see regulation 86(5)(c) of the PCR 2015.

    226 Fraser J in Energy Solutions gave his decision in the context of an open competition to procure magnox reactors, to which the then Public Contracts Regulations 2006 applied. In his analysis, he mentioned regulation 32(2)(b) of the then 2006 Regulations, imposing an express duty to give reasons. There are similar duties under regulation 55(2)(b) and 86(2)(b) of the PCR 2015. However, Ms Hannaford is right to observe that where a framework is used, even unsuccessful framework members have no entitlement to reasons.

    227 The essence of this issue is a complaint that the CCGs, in particular NHS Bath, communicated with CC in a misleading manner, in the context of the contract extension discussions and by indicating (through Mr Quinn) that progress towards procuring a fresh A&G contract was less advanced than in truth it was. There is substance in the complaint; Mr Quinn’s emails of 18 and 19 January 2021 to Ms Enderby and of 26 January 2021 to Mr Patrick were indeed disingenuous and economical with the truth.

    228 NHS Bath wanted to retain the CC’s good will and did not want it to know that it would shortly be replaced. NHS Bath did not reveal to CC the full truth about the reasons for the procurement of Cinapsis at the time. However, in the absence of reliance on an express statutory duty to give reasons, I do not think that formulating that complaint as a reasons challenge adds anything of substance to the more general complaint that the procurement was conducted on a non-transparent, biased and unlawful basis, contrary to the various Regulations cited and in particular regulation 18.”

  • Other Cases

    Jurisdiction: England and Wales

    MSI- Defence Systems Ltd v The Secretary of State for Defence [2020] EWHC 164 (TCC) (Stuart-Smith J) (Overview of duty to provide reasons in  the context of applications to strike out/amend: “18 Failure to give proper reasons may, in an appropriate case, justify setting aside a decision. In my view the Court should not be over-scrupulous and should not set out with a predisposition to look for errors or inconsistencies in the reasons given; but if material errors or failures in the giving of reasons are demonstrated it should not hesitate to intervene in an appropriate case”)

    Bromcom Computers Plc v United Learning Trust [2022] EWHC 3262 (TCC) (Waksman J) (contracting authority unlawfully engaged in averaging of scores, rather than reaching scores by way of a moderation discussion; intertwined with lack of reasons: see [169]-[185]; also, finds that scores of an evaluator should not be excluded on the basis that her particular reasons were only given in evidence during the cae (the fundamnetal issue was the lack of a clear statement of the contracting authority’s reasons: “210 There is no principle of law that automatically excludes a statement of reasons given after the event, even some time after the event, by an evaluator which are unsupported by contemporaneous notes but which the evaluator can recall. It is all a question of weight”)

    Siemens Mobility Limited v High Speed Two (HS2) Limited [2023] EWHC 2768 (TCC) (O’Farrell J) [815]-[821] (appropriate level of information and documentation was made available)

• EU - CJEU
  • Case C-629/11P Evropaïki Dynamiki v Commission

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    Jurisdiction: EU - CJEU

    There are limits to what has to be provided by way of reasons and feedback; A contracting authority is not obliged to provide a full copy of the evaluation report

    “21. [The] Commission cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see, to that effect, order of 29 November 2011 in Case C‑235/11 P Evropaïki Dynamiki v Commission, paragraphs 50 and 51 and the case-law cited).

    22. Similarly, the contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report (see order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission, paragraph 25).”

  • Case C-101/22 P Sopra

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    Jurisdiction: EU - CJEU

    The reasons for a decision may not be explained for the first time ex post facto before the Court, save in exceptional circumstances

    Re reasons why successful tender did not appear to be abnormally low

    “88 The fact that the Commission provided the reasons for the decision at issue in the course of the proceedings cannot compensate for the inadequacy of the initial statement of reasons for that decision. The reasons for a decision may not be explained for the first time ex post facto before the Court, save in exceptional circumstances which, failing any urgency, are not present in this case (see, to that effect, judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22; of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 463; and of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 51)

    89 To allow the institution concerned to defer its duty to state reasons for its decision finding that the successful tender is not abnormally low would affect the right of unsuccessful tenderers to effective judicial protection, in so far as they must know the reasons for a measure, not only in order to defend their rights in the best possible conditions, but also in order to decide in full knowledge of the circumstances whether it is worthwhile to bring an action before the competent court (see, to that effect, judgments of 15 October 1987, Heylens and Others, 222/86, EU:C:1987:442, paragraph 15, and of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 120“

  • Other Cases

    Jurisdiction: EU - CJEU

    Case C-561/10 P Evropaïki Dynamiki v Commission, [25]-[27]

     

• EU - General Court
  • Case T-89/07 VIP Car Solutions SARL v European Parliament

    View Case

    Jurisdiction: EU - General Court

    The adequacy of reasons is to be assessed on the basis of the reasons provided prior to the commencement of proceedings; but statements of reasons after the first statement may be taken into account

    “[If] the institution concerned sends a letter in response to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question is adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement”

  • Case T-300/07 Evropaïki Dynamiki v Commission

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    Jurisdiction: EU - General Court

    Award set aside where the reasons were deficient; information about the qualitative assessment was "all the more necessary" where the applicant's price was lower than the successful tenderer

    “67      It should first of all be noted in this case that the score allocated to the applicant’s tender exceeded the minimum number of points required both for the award criteria as a whole and for the single award criteria. Also, in order to determine the tender offering the best value for money, the Commission examined the financial proposals of those tenderers, including the applicant, which had submitted a tender reaching the minimum thresholds of points required. It was therefore following a comparison with the other bids, and in particular the successful tenderer’s bid, that the Commission decided not to accept the applicant’s bid.

    68      Taking into account the circumstances and, as stated in paragraph 45 above, taking into account the Commission’s broad discretion in the matter, and the ensuing even more fundamental need to provide an adequate statement of the reasons for its decisions, the Court must thus determine whether the statement of reasons contained in the decision of 13 July 2007 and the letter of 16 July 2007 is sufficient.

    69      The letter of 16 July 2007 contains extracts from the evaluation report setting out the comments justifying the score given to the applicant’s tender for the four award criteria. The comparison between the services offered by the applicant and those offered by the successful tenderer consists merely of a table indicating, on the one hand, the scores obtained by the applicant and by the successful tenderer for those award criteria and, on the other hand, the final ratio obtained by applying the formula in point 3.3 of the tender specifications, that is to say, the ratio between the total scores obtained for the four technical evaluation criteria and the price bid for the lot concerned in order to determine the best quality/price ratio. The letter of 16 July 2007 does not therefore contain even a brief comment on the successful tenderer’s bid.

    70      In those circumstances, the Court must conclude that the information contained in the decision of 13 July 2007 and in the letter of 16 July 2007 does not appear to be satisfactory. That information is not such as, on the one hand, to make the applicant aware of the characteristics and advantages of the successful tender and thereby enable it to defend its rights or, on the other, to enable the Court to exercise its review of the comparison made by the Commission between the tenders.

    71      In addition, it should be noted that the financial bid submitted by the applicant was lower than that of the successful tenderer. In that regard, it must be pointed out that the Commission did not expressly state the total price bid by the successful tenderer, it merely gave the final ratio attributed to the latter’s bid, and disclosed that price for the first time only in a table set out in the defence.

    72      Despite the fact that the successful tenderer offered a price that was higher than that offered by the applicant, the Commission considered that the successful tenderer’s bid offered the best quality/price ratio and was thus the best value for money. It therefore appears that the assessment of the quality of the bid as regards the qualitative award criteria was the deciding factor. Thus, in the circumstances of the case, the information concerning the award criteria was all the more necessary as the price offered by the applicant was lower than that offered by the successful tenderer (see, to that effect, VIP Car Solutions v Parliament, paragraph 45 above, paragraph 71).

    73      The Court must conclude that the Commission did not correctly fulfil its obligation to state reasons in so far as the content of the decision of 13 July 2007 and of the letter of 16 July 2007 does not in this case meet the requirements laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules.

    74      It follows from the foregoing that the decision of 13 July 2007 to reject the applicant’s bid and award the contract to the successful tenderer is vitiated by a defective statement of reasons.

    75      Accordingly, the decision of 13 July 2007 must be annulled, without its being necessary to rule on the other pleas in law relied on by the applicant in connection with Lot 2 or on the need to request the Commission to produce the report of the evaluation committee.”

  • Case T-387/08 Evropaïki Dynamiki v Commission

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    Jurisdiction: EU - General Court

    The adequacy of reasons is to be assessed on the basis of the reasons provided prior to the commencement of proceedings; but statements of reasons after the first statement may be taken into account

    “However, the fact that the Parliament provided the reasons for that decision in the course of the proceedings does not compensate for the inadequacy of the initial statement of reasons for the contested decision. It is settled case-law that the reasons for a decision cannot be explained for the first time ex post facto before the Court, save in exceptional circumstances which, in the absence of urgency, are not present in this case” [76]

  • Case T-165/12 European Dynamics Luxembourg SA v Commission

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    Jurisdiction: EU - General Court

    The purpose of the duty to provide reasons is (i) to allow a tenderer to know if it has grounds for review and (ii) allow the court/review body to carry out that review

    “[The] contracting authority’s comments must be sufficiently precise to enable the applicants to ascertain the matters of fact and law on the basis of which the contracting authority rejected their offer and accepted that of another tenderer” [87]

  • Case T-477/15 European Dynamics Luxembourg SA v European Chemicals Agency

    View Case

    Jurisdiction: EU - General Court

    The adequacy of reasons is to be assessed on the basis of the reasons provided prior to the commencement of proceedings; but statements of reasons after the first statement may be taken into account

    “It also follows from the case-law that, although it is apparent from the provisions referred to in paragraph 34 above that an adequate statement of reasons must be made, at the latest, when the second letter is sent, the purpose of that letter being to complement the initial statement of reasons as regards the factors which justified the decision to award the contract, the content of a third letter may also be taken into account when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the tenderer whose bid was ranked in first position. However, the grounds set out in such a letter must not undermine the statement of reasons provided in the first two letters (judgment of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v EIT, T‑481/14, not published, EU:T:2016:498, paragraph 82).” [35]

• Ireland
  • Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59, [2012] 3 IR 297 (Fennelly J)

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    Jurisdiction: Ireland

    The extent of reasons required to be provided depends on the particular circumstances

    “The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process” [66] (Fennelly J)

  • RPS Consulting Engineers Limited v Kildare County Council [2016] IEHC 113, [2017] 3 IR 61 (Humphreys J)

    View Case

    Jurisdiction: Ireland

    The provision of only scores is insufficient for qualitative criteria; where the losing bidder submitted the lowest price, it is all the more important that sufficient reasons are provided

    “71. Despite the wording of the Irish Regulations (e.g. Regulation 6(5) of SI 130/2010 refers only to the provision of scores), the Irish courts have held that the provision of scores is insufficient: “the provision of scores alone could only constitute sufficient reason if the tenderer criteria revolved around price or other purely quantitative measurements”

    “74. “In the tender context, in a case where the loser, in fact, submitted a lower priced offering than the winner, there is a particular need for it to be clearly demonstrated that valid objective reasoning was applied in the selection process.”

  • Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform (No. 3) [2018] IECA 156 (Hogan J)

    View Case

    Jurisdiction: Ireland

    Reasons need not be provided for criteria where the loser scored higher or the same as the winner

    “42. [While] a cogent case can be made that a full set of reasons covering disadvantages as well as advantages would advance the transparency of the procurement process, it would also add to the already significant difficulty and burdens faced by evaluation teams”; and approving the following statement of Barrett J in the High Court, Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform [2018] IEHC 237, [28]: “Notably, (i) the Regulations of 2010 do not require the disclosure of the content of the selected tender, but rather its “characteristics and relative advantages”, and (ii) there is no mention of disadvantages in the just-quoted text. It is true that there have been at least two United Kingdom cases, viz. Partenaire Ltd v. Department of Finance and Personnel [2007] NIQB 100 (an application for extension of an interim injunction which stayed a procurement process conducted by a contracting authority) and Lightways (Contractors) Ltd v. North Ayrshire Council, [2008] SLT 690 (an application for interim suspension of a decision by a local contracting authority to accept a particular tender) – neither of which cases was opened before the court but both of which are referenced in Arrowsmith, S., The Law of Public and Utilities Procurement, Vol I (3rd ed), 1358, which was opened before the court – which between them suggest that it is arguable that general European Union law obligations of objectivity, transparency and non-discrimination (all of which are accepted by this Court to be of application) should ensure that such reasons as are given include such information about a successful bid or bids as would permit a well- informed and diligent tenderer to understand the relative advantages and disadvantages of the respective bids. But (i) as Charleton J. observes in Oltech (Systems) Ltd v. Olivetti UK Ltd [2012] IEHC 512, para.8 – writing in a very different context, though his observations would appear to have a general resonance – “experience demonstrates that there is little that cannot be argued”, and (ii) even Professor Arrowsmith appears to shrink from stating that the arguable is the actual, confining herself to the following submission, at 1358:“[I]t is submitted that…a tenderer should be able to understand the assessment of the relative advantages and disadvantages of the respective bids for it to establish whether it has been fairly treated.”

  • Newbridge Tyre and Battery Co Limited T/A Fleet Service Centre v Commissioner of An Garda Síochána [2018] IEHC 365 (Baker J)

    View Case

    Jurisdiction: Ireland

    Time for bringing proceedings did not run until applicant had sufficient information to evaluate whether it would be justified in bringing proceedings or determining if they are “reasonably likely to succeed”

    “43. There may be, as in the present case, challenges which arise not from the choice of the preferred bidder as such, but from a perceived frailty in the approach of the Contracting Authority to the assessment of whether the competition criteria were met by the applicant. The time limit provided in the Remedies Regulations, for the reasons explained by Peart J. in Baxter and having regard to the principle of effectiveness, contemplates a start date which is linked to the date of knowledge or presumed knowledge having regard to the fact that the basis of the challenge may not be one readily ascertainable from the known facts, as the date of communication of the identity of the preferred bidder. The identification of Corcoran as the preferred bidder in this case, taken alone, did not give Newbridge sufficient knowledge of the pleaded irregularities.

    44. The general purpose of effectiveness and certainty and that litigation in the procurement area be resolved with expedition may, on occasion, require to be reconciled. Litigation efficiency is not to be achieved by the commencement of proceedings before a proper evaluation is carried out as to whether they are justified or reasonably likely to succeed. Litigation chaos, the commencement of poorly pleaded, unjustifiable, or unstateable proceedings are not desirable in the interests of the proper administration of justice, and while procedures exist for the bringing of an application to strike out proceedings which do not meet the necessary standard, such applications engage court time and are costly for the parties. It is in general not desirable that proceedings be instituted in circumstances where an applicant or plaintiff has not sufficiently assessed the nature of the claim or the prospects of success, or does not have requisite information to adequately plead.”

  • Sanofi Aventis Ireland Limited v Health Service Executive [2018] IEHC 566 (McDonald J)

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    Jurisdiction: Ireland

    Reasons need not be provided for criteria where the loser scored higher or the same as the winner; A failure to provide reasons might not lead to the annulment of the award decision if it would be disproportionate to do so;

    No reasons required if loser scores higher/equal

    “74. [It] is important to note that there is, in fact, no obligation on a contracting authority to provide reasons to a disappointed tenderer in respect of any criterion where the tenderer scored a higher mark than the successful candidate. This is clear from the decision of the Court of Appeal in Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform (No. 3) [2018] IECA 156 …

    75. Although not expressly so decided in the Word Perfect case, it would seem to follow, as a matter of logic, that the same principle should apply where both the unsuccessful tenderer and the successful candidate scored the same marks”

    Proportionality of the Remedy

    “144. In my view, it would be disproportionate to set aside the decision of the HSE to award the contract to Glaxo by reason of its failure to provide reasons in relation to these two sub-sub-criteria. In expressing this view, I have not lost sight of the argument made by Mr. McGrath on behalf of Sanofi that Glaxo has already had the benefit of remaining in situ since the expiry of the previous contract. Mr. McGrath submitted that in those circumstances, it would not be in any way disproportionate for the court to decide to set aside the award. However, in my view, the difference in marks between Glaxo and Sanofi in relation to these two sub-sub-criteria would not justify the court taking such a course. As noted above, the divergence in marks as between Sanofi and Glaxo would not be sufficient to make a difference to the award of the contract. The difference in marks was 1.5 in relation to regularity of batch supply and expiry date management. The difference in relation to packaging and labelling was four. That could not have made a difference to the award given that the much larger gap of 41 marks between the final score for Sanofi and the final score for Glaxo. Even if Sanofi were awarded full marks for these two sub- sub –criteria that would only add 11 extra marks to its existing score. The only way in which the scoring could conceivably have made a difference is in the event that Glaxo was awarded a score of zero or close to zero and Sanofi was awarded full marks or close to full marks. However, it is fanciful to suggest that there was any such possibility. In the circumstances, it seems to me that it would plainly be disproportionate to annul the award of the contract on the basis of the failure to provide reasons in respect of these two sub-sub-criteria.

    145. As mentioned above, I am mindful of the need to provide effective judicial protection to any tenderer in a procurement contest to ensure that the legal requirements are honoured by contracting authorities. However, it seems to me that this must be balanced against the requirement of proportionality identified by Finlay Geoghegan J. in Gaswise. It seems to me that the appropriate relief to be granted is, first, a declaration that Sanofi’s rights have been infringed and, secondly, an order pursuant to Regulation 9(1)(c) of the Remedies Regulations directing the HSE to provide full reasons (including the characteristics and relative advantages of the Glaxo tender) to Sanofi within a period of time which I will fix after hearing from the parties. I am of the view that such relief will provide an appropriate, adequate and proportionate remedy to Sanofi in respect of these two sub-sub-criteria which will vindicate the infringement of its rights. In para. 38 of his first affidavit Mr. Dempsey stated (and significant emphasis was placed on this factor at the hearing) that it is essential that Sanofi is provided with sufficient information by contracting authorities so that it is in a position to know and properly understand why it won or lost a competition, as the case may be. The provision of proper reasons now in accordance with an order pursuant to Regulation 9(1)(c) will assist Sanofi in improving the overall quality of future tenders.”

  • WJ Duggan v Minister for Culture, Heritage and the Gaeltacht [2023] IEHC 396 (O'Regan J)

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    Jurisdiction: Ireland

    Award of contract for ferry services quashed due to failure to provide adequate reasons

    The following was an example of the reasons given in the regret letter (relating to the Risk Management criterion, in which the winning tenderer scored 100 out of 100 and the applicant scored 85):

    “The SMT response was considered to be excellent. The WJD was very good but some areas of risk which are considered quite important were not covered in the submission.”

    O’Regan J held at [14] that “no specific advantages of the winning tender were in fact identified” and that “the response in respect of the applicant’s vessel is also wanting in respect of adequacy of reason.”

    O’Regan J set out the detail of her analysis at [13], addressing the deficiencies in the reasons under each of the award criteria:

    “(a) [In] respect of quality and suitability of the vessel, in my view, there is nothing which identifies to the applicant why the affected party scored 15 more points than the applicant in that there is no specific respects, examples or facts supporting the general assertion of superiority. Rather, the reason was limited to good detail in relation to the proposed vessel and passenger facilities. Furthermore, as the difference appears to be in relation to passenger facilities, there is nothing to identify why one vessel secured more marks than the other. The comments in this regard are essentially bland and uninformative.

    (b) In respect of customer service and proposals for dealing with customer complaints and consultation; mobility, it appears that part of the reason why the applicant scored 80 out of 100 marks was because proposals in relation to catering for passengers with reduced mobility that are unaccompanied was unclear. In fact, the RFT did not specify the need to address passengers with reduced mobility that are unaccompanied. It does appear that the applicant lost marks for not providing a detail which was not sought, and accordingly this assessment takes into account, as complained of by the applicant, irrelevant considerations.

    (c) In respect of risk management, the only detail given about the winning tender was that it was considered to be excellent. This is just such a detail as was deprecated by Humphreys J in RPS. Furthermore, in relation to the applicant it was recorded that some areas of risk which are considered quite important were not covered. However, there is no identification of such quite important risks and accordingly is entirely uninformative.

    (d) Under the heading of security, the applicant is merely advised that the affected party had an excellent response with a lot of detail in relation to security onshore and at sea, however, the applicant lacked detail as to how security at sea would be handled without identifying to the applicant how or in what respect the winning tender identified security at sea which the applicant failed to identify.

    (e) In respect of service mobilisation plan, the affected party’s response was excellent with very detailed specific milestones mentioned. As to what milestones they would be is not clear or identified and the applicant lost marks as the tender was considered to be not specific in relation to some timelines without any example, fact or detail to assist either the applicant or the Court in reviewing the matter.”

  • Killaree Lighting Services Limited v Mayo County Council [2024] IEHC 79 (O'Moore J)

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    Jurisdiction: Ireland

    A failure, in the regret letter, to identify the decision reached concerning the award of the contract and identify the date on which the standstill period expired, constitutes a breach of the requirements of the Remedies Regulations concerning standstill letters

    Note the appeal in this case: Killaree Lighting Services Limited v Mayo County Council [2025] IECA. See further below.

    “73. While there is no obligation to identify the name of the successful tenderer, there is an obligation to inform tenderers “of the decisions reached concerning the award of the contract…”, and the paramount decision about which both successful and unsuccessful tenderers must be informed is the decision to award the contract to one of them. That is something that was not done by Mayo. In addition, while the standstill period prescribed by the tender documents and, indeed, by the Regulations, was known to all parties the “exact” date upon which this would expire could not have been known to [Killaree], as [Killaree] had been kept in the dark about the proposed date for the awarding of the contract.

    74. I therefore find that the letter of the 9th of October did not constitute a standstill letter within the meaning of the 2010 Regulations.”

    This case was appealed by Killaree but there was no cross-appeal by the Council against the finding that the standstill letter was deficient: see Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7 at [95]; see, also, at [98]: “[Because] Killaree had been excluded and therefore did not qualify for evaluation under the RFT, it was not entitled to the name of the successful tenderer and the characteristics and relative advantages of the tender selected. On the other hand, it was entitled to be informed of the decision reached concerning the award of the contract, the exact standstill period applicable to the contract, and a summary of the reasons for the rejection of its tender. In the High Court, the Council argued that the letter of 9 October was in substance a standstill letter since it had observed a standstill period after sending it on the basis that no contract was concluded until 27 October i.e. 18 days after the sending of the letter, thus exceeding the 14/16-day period required by the Regulations. Correctly in my view, the trial judge did not agree and on the appeal the Council has not contested the correctness of that conclusion” (Hyland J)

  • Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7 (Hyland J)

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    Jurisdiction: Ireland

    Where ineffectiveness not ordered for deficient standstill letter, an alternative penalty must be imposed; contracting authority entitled to provide summary reasons for rejecting tenderer's explanations about abnormally low tender

    No mandatory ineffectiveness

    “137. Killaree is not entitled to a mandatory declaration of ineffectiveness because, as identified above, the scheme established by the Remedies Directive and Regulations requires both that a person establishes they have been deprived of the possibility of pursuing pre-contractual remedies and that the Regulation 5(1) infringement is combined with a substantive infringement of procurement rules that affected its chances of obtaining the contract. Because there was no substantive breach of the Public Authorities’ Contracts Regulations, Killaree did not meet the requisite conditions for a declaration of ineffectiveness and the conclusion of the trial judge in that regard remains intact.”

    Trial Judge correct not to make discretionary order of ineffectiveness

    “158. I conclude that the trial judge did not err in principle in the factors that he considered. Both the substantial impact of a declaration of ineffectiveness (on the successful tenderer, the other local authorities and the public), and the inaction of Killaree in the face of the letter of 9 October, mean Killaree is a long way from showing substantial unfairness. In those circumstances, Killaree has failed to establish the trial judge erred in refusing to grant a discretionary declaration of ineffectiveness.”

    An alternative penalty must be imposed where ineffectiveness not ordered

    “167. There is no doubt but that Regulation 13(1) is a very unusual provision. It effectively mandates a review body – in this case the High Court – to impose an alternative penalty if a declaration of ineffectiveness is not made where there has been a breach of Regulation 5(1). In this case the appeal has been brought and argued on the basis that the breach will be treated as a Regulation 5(1) breach, and the decision of the trial judge not to make a declaration of ineffectiveness has been upheld. As the trial judge himself acknowledges, that means the Court must impose an alternative penalty. That is an obligation placed upon the High Court by the Regulation. It is not optional. The legal basis for the Remedies Regulations is the European Communities Act 1972 and the obligations derive from Ireland’s membership of the EU.”

    Summary Reasons were sufficient in rejecting applicant’s explanations about its pricing

    “89. [When] Killaree sought to justify its tender not by arguing that the prices represented the real cost, but on the basis that they were included in other prices or that the items were unnecessary, that justification breached the express provisions of the RFT. In the circumstances, Killaree must be taken to know that was an unacceptable justification, and why it was unacceptable. It had already been reminded in the correspondence with the Council about the rules of the competition. There cannot be an obligation on the authority to explain over and over something that the tenderer well knows. In the circumstances, the Council was entitled to reject a justification that was non-compliant with the RFT and treat the abnormally low tender as not having been satisfactorily explained without further recourse to Killaree. This necessarily means the Council was entitled to provide reasons in a summary format because of the knowledge that was correctly assumed on the part of the tenderer.”

• Northern Ireland
  • Resource (NI) v Northern Ireland Courts and Tribunal Service [2011] NIQB 121 (McCloskey J)

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    Jurisdiction: Northern Ireland

    Contract award decision set aside due to manifest error; criticism of record keeping; importance noted including due to reason-giving obligation

    “35 Much of the sworn evidence of Mr. Radcliffe and Ms Williams bore on the discrete issue of the G4S cash collection proposal. I had the opportunity to assess these two witnesses during relatively lengthy periods and, further, to address various questions to them. I observe, first of all, that they provided accounts of the crucial Evaluation Panel meeting which were notably different. This inspired little judicial confidence in either version. I interpose here the observation that, under the current statutory and jurisprudential regime, meetings of contract procurement evaluation panels are something considerably greater than merely formal events. They are solemn exercises of critical importance to economic operators and the public and must be designed, constructed and transacted in such a manner to ensure that full effect is given to the overarching procurement rules and principles. Where, in any given case, a disappointed bidder’s legal challenge focuses on the activities and deliberations of an evaluation panel, the evidence bearing thereon will, inevitably, be carefully and objectively scrutinised by the court. Any failure by the court to scrutinise with particular care the contents of relevant individual and collective marking frames would be in dereliction of the judicial duty.

    40 I turn now to consider how the material entries in the marking frames should be construed by the court. Since the collective Panel comments did not contain any rejection (reasoned or otherwise) of the G4S cash collection centre proposal and since G4S was accorded full marks for its cash collection proposal, all of the accompanying comments should, in principle, relate to perceived strengths and merits – and nothing else. The allocation of full marks can only be construed as an assessment by the Panel that this aspect of the G4S tender was flawless. The comments in the individual and corporate marking frames must be construed by the court in this context. In my opinion, it is trite that the meaning of any document is a question of law for the court. I acknowledge that in performing this exercise, the court must guard against construing the words in question as if they were a statute or some legal instrument. Furthermore, these comments are in the nature of summaries and are not designed to provide a verbatim record. On the other hand, their importance is indisputable, when viewed from the perspectives of the CPD guidance, the duty to provide reasons to unsuccessful bidders and the overarching procurement rules and principles, particularly those of transparency and equality of treatment. It follows that the exercise of compiling and recording comments is one of some solemnity: see my observations in paragraph [35] above. Approached in this way, I consider that both the individual and collective comments in the marking frames under scrutiny convey unmistakably two things in First, the Evaluation Panel construed the G4S proposal as a proposal to deliver all cash collections to their G4S cash servicing centre, either with immediate effect or at some time subsequently. Second, the Evaluation Panel was plainly impressed by this aspect of the overall proposal, viewing it as a positive virtue. I consider that this is how the marking frames must be construed. This construction is then juxtaposed with the evidence of Mr. Radcliffe and Ms Williams. In my view, sworn evidence of a cogent and compelling nature would be required to displace the above analysis. I have already held that the evidence of the two NICTS witnesses was not of this calibre.”

The principles discussed in this Analysis are focused on the EU cases (particularly the General Court cases) and Irish cases. The Irish cases, in particular, have gone into some detail on the duty to provide reasons. While English cases on reasons are covered above, the general principles emerging from those cases seems relatively straightforward and broadly aligned with the EU and Irish case law. It should be noted, however, that the Irish cases contain some differences; most strikingly, a number of judgments  have held that a losing bidder is not entitled to any reasons in relation to qualitative criteria where that bidder has scored higher than or equal to the winning tenderer. No such principle is discernible in English law.

• Purpose of Reasons Obligation

  The purpose of the duty to provide reasons is (i) to allow a tenderer to know if it has grounds for review and (ii) allow the court/review body to carry out that review

  “[The] reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction” Case T-89/07 VIP Car Solutions SARL v European Parliament ECLI:EU:T:2009:163, [60]

  “[The] contracting authority’s comments must be sufficiently precise to enable the applicants to ascertain the matters of fact and law on the basis of which the contracting authority rejected their offer and accepted that of another tenderer” Case T-165/12 European Dynamics Luxembourg SA v Commission ECLI:EU:T:2013:646, [87]

• Context Dependent

  The extent of reasons required to be provided depends on the particular circumstances

  “It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations” Case T-300/07 Evropaïki Dynamiki v Commission ECLI:EU:T:2010:372, [46]

  Public law generally

  “The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process” Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59, [2012] 3 IR 297, [66] (Fennelly J)

• Timing of Reasons

  The adequacy of reasons is to be assessed on the basis of the reasons provided prior to the commencement of proceedings; but statements of reasons after the first statement may be taken into account

  “However, the fact that the Parliament provided the reasons for that decision in the course of the proceedings does not compensate for the inadequacy of the initial statement of reasons for the contested decision. It is settled case-law that the reasons for a decision cannot be explained for the first time ex post facto before the Court, save in exceptional circumstances which, in the absence of urgency, are not present in this case” Case T-387/08 Evropaïki Dynamiki v Commission ECLI:EU:T:2010:377, [76].

  “[If] the institution concerned sends a letter in response to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question is adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement” Case T-89/07 VIP Car Solutions SARL v European Parliament ECLI:EU:T:2009:163, [73]

  “It also follows from the case-law that, although it is apparent from the provisions referred to in paragraph 34 above that an adequate statement of reasons must be made, at the latest, when the second letter is sent, the purpose of that letter being to complement the initial statement of reasons as regards the factors which justified the decision to award the contract, the content of a third letter may also be taken into account when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the tenderer whose bid was ranked in first position. However, the grounds set out in such a letter must not undermine the statement of reasons provided in the first two letters (judgment of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v EIT, T‑481/14, not published, EU:T:2016:498, paragraph 82).” Case T-477/15 European Dynamics Luxembourg SA v European Chemicals Agency, ECLI:EU:T:2018:52, [35]

• Identifying Winner and Dates

  A failure, in the regret letter, to identify the successful tenderer and identify the date on which the standstill period expired, constitutes a breach of the requirements of the Remedies Regulations concerning standstill letters

  “While there is no obligation to identify the name of the successful tenderer, there is an obligation to inform tenderers “of the decisions reached concerning the award of the contract…”, and the paramount decision about which both successful and unsuccessful tenderers must be informed is the decision to award the contract to one of them. That is something that was not done by Mayo. In addition, while the standstill period prescribed by the tender documents and, indeed, by the Regulations, was known to all parties the “exact” date upon which this would expire could not have been known to Mayo, as Mayo had been kept in the dark about the proposed date for the awarding of the contract. I therefore find that the letter of the 9th of October did not constitute a standstill letter within the meaning of the 2010 Regulations.” Killaree Lighting Services Limited v Mayo County Council [2024] IEHC 79, [73]-[74].       

• Limits to Reasons Required

  Courts have emphasised that there are limits to what has to be provided

  “[The] Commission cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender” Case C-629/11P Evropaïki Dynamiki v Commission ECLI:EU:C:2012:617, [21])

  See to similar effect, e.g., Case T-717/20 Lenovo Global Technology Belgium BV v European High-Performance Computing Joint Undertaking (EuroHPC) ECLI:EU:T:2022:640 at [162]. In that case, the General Court upheld the following reasons as being sufficient: “[The] evaluation committee took the view that, although, in the applicant’s technical proposal, ‘the mitigation strategies for most components [were] well defined and aligned to provide the agreed performance’, the fact remained that, ‘for critical components like the CPU and the GPU the proposed alternatives [were] not convincing as the tenderer heavily [relied] on the release timescale of the suppliers [and that] alternative solutions proposed [might] alter significantly the final performance and power consumption numbers’.”

  A contracting authority is not obliged to provide a full copy of the evaluation report

  “[The] contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report” (see order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission, paragraph 25) Case C-629/11P Evropaïki Dynamiki v Commission ECLI:EU:C:2012:617, [22]

  A detailed summary of how each detail was considered by the contracting authority is not required

  “[The] Commission cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender” (Case C‑629/11P Evropaïki Dynamiki v Commission at [21])

  See to similar effect, e.g., Case T-717/20 Lenovo Global Technology Belgium BV v European High-Performance Computing Joint Undertaking (EuroHPC) ECLI:EU:T:2022:640 at [162]. In that case, the General Court upheld the following reasons as being sufficient: “[The] evaluation committee took the view that, although, in the applicant’s technical proposal, ‘the mitigation strategies for most components [were] well defined and aligned to provide the agreed performance’, the fact remained that, ‘for critical components like the CPU and the GPU the proposed alternatives [were] not convincing as the tenderer heavily [relied] on the release timescale of the suppliers [and that] alternative solutions proposed [might] alter significantly the final performance and power consumption numbers’.”

  See, also, Case C-561/10 P Evropaïki Dynamiki v Commission, [25]-[27]

• Scores are not enough

  The provision of only scores is insufficient for qualitative criteria

  The provision of scores only was insufficient in Case T-300/07 Evropaïki Dynamiki v Commission ECLI:EU:T:2010:372

  Despite the wording of the Irish Regulations (e.g. Regulation 6(5) of SI 130/2010 refers only to the provision of scores), the Irish courts have held that the provision of scores is insufficient:

  “the provision of scores alone could only constitute sufficient reason if the tenderer criteria revolved around price or other purely quantitative measurements” RPS Consulting Engineers Limited v Kildare County Council [2016] IEHC 113, [2017] 3 IR 61, [71] (Humphreys J)

• Where loser provides a lower price

  In some cases where the losing bidder offered a lower price, courts have said that it is all the more important that sufficient reasons are provided (although it is not clear what, if any, higher obligation is imposed)

  “[The] information concerning the award criteria was all the more necessary as the price offered by the applicant was lower than that offered by the successful tenderer” Case T-300/07 Evropaïki Dynamiki v Commission ECLI:EU:T:2010:372, [72] (appeal dismissed, Case C-560/10P Evropaïki Dynamiki v Commission, Order of 20 September 2011)

  Case T-477/15 European Dynamics Luxembourg SA v European Chemicals Agency, ECLI:EU:T:2018:52 – court did not have express any additional or more rigorous reason-giving obligation where the applicant had provided a lower price

  “In the tender context, in a case where the loser, in fact, submitted a lower priced offering than the winner, there is a particular need for it to be clearly demonstrated that valid objective reasoning was applied in the selection process” RPS Consulting Engineers Limited v Kildare County Council [2016] IEHC 113, [2017] 3 IR 61, [74] (Humphreys J)

  “Information on the “characteristics and relative advantages of the successful tender” will be all the more necessary when the price offered by the unsuccessful tenderer is lower than that offered by the successful tenderer” Sanofi Aventis Ireland Limited v Health Service Executive [2018] IEHC 566, [47(c)] (McDonald J)

• Ireland - Loser scores higher/equal

  The Irish courts have held that reasons need not be provided for criteria where the loser scored higher or the same as the winner

  “[While] a cogent case can be made that a full set of reasons covering disadvantages as well as advantages would advance the transparency of the procurement process, it would also add to the already significant difficulty and burdens faced by evaluation teams” Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform (No. 3) [2018] IECA 156, [42] (Hogan J); and approving the following statement of Barrett J in the High Court: “Notably, (i) the Regulations of 2010 do not require the disclosure of the content of the selected tender, but rather its “characteristics and relative advantages”, and (ii) there is no mention of disadvantages in the just-quoted text. It is true that there have been at least two United Kingdom cases, viz. Partenaire Ltd v. Department of Finance and Personnel [2007] NIQB 100 (an application for extension of an interim injunction which stayed a procurement process conducted by a contracting authority) and Lightways (Contractors) Ltd v. North Ayrshire Council, [2008] SLT 690 (an application for interim suspension of a decision by a local contracting authority to accept a particular tender) – neither of which cases was opened before the court but both of which are referenced in Arrowsmith, S., The Law of Public and Utilities Procurement, Vol I (3rd ed), 1358, which was opened before the court – which between them suggest that it is arguable that general European Union law obligations of objectivity, transparency and non-discrimination (all of which are accepted

  “It is important to note that there is, in fact, no obligation on a contracting authority to provide reasons to a disappointed tenderer in respect of any criterion where the tenderer scored a higher mark than the successful candidate. This is clear from the decision of the Court of Appeal in Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform (No. 3) [2018] IECA 156 … Although not expressly so decided in the Word Perfect case, it would seem to follow, as a matter of logic, that the same principle should apply where both the unsuccessful tenderer and the successful candidate scored the same marks” Sanofi Aventis Ireland Limited v Health Service Executive [2018] IEHC 566, [74]-[75] (McDonald J)

• Proportionality of Remedy

  A failure to provide reasons might not lead to the annulment of the award decision if it would be disproportionate to do so

  “I am mindful of the need to provide effective judicial protection to any tenderer in a procurement contest to ensure that the legal requirements are honoured by contracting authorities. However, it seems to me that this must be balanced against the requirement of proportionality identified by Finlay Geoghegan J. in Gaswise. It seems to me that the appropriate relief to be granted is, first, a declaration that Sanofi’s rights have been infringed and, secondly, an order pursuant to Regulation 9(1)(c) of the Remedies Regulations directing the HSE to provide full reasons (including the characteristics and relative advantages of the Glaxo tender) to Sanofi within a period of time which I will fix after hearing from the parties. I am of the view that such relief will provide an appropriate, adequate and proportionate remedy.” Sanofi Aventis Ireland Limited v Health Service Executive [2018] IEHC 566, 145 (McDonald J)

• Ineffectiveness as a Remedy

  A failure to issue a proper standstill letter will not necessarily result in mandatory ineffectiveness; the conditions in Regulation 11(2)(b) of the Remedies Regulations must be satisfied

  “Regulation 11(2) provides for a mandatory declaration of ineffectiveness in cases of Regulation 5(1) infringement where (a) the infringement has deprived the tenderer of the possibility of pursuing pre-contractual remedies and (b) is combined with an infringement with the Regulations that has affected the chances of the tenderer to obtain the contract.

  … [Because Killaree has not identified any substantive infringement of the Regulations in respect of its exclusion for an abnormally low tender or lack of reasons, Killaree cannot obtain a mandatory declaration of ineffectiveness.” Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7, [8]-[9] (Hyland J)

• Alternative Penalty

  Where ineffectiveness not ordered for a defective standstill letter, the review body must impose an alternative penalty

  An alternative penalty must be imposed where ineffectiveness not ordered

  “There is no doubt but that Regulation 13(1) is a very unusual provision. It effectively mandates a review body – in this case the High Court – to impose an alternative penalty if a declaration of ineffectiveness is not made where there has been a breach of Regulation 5(1). In this case the appeal has been brought and argued on the basis that the breach will be treated as a Regulation 5(1) breach, and the decision of the trial judge not to make a declaration of ineffectiveness has been upheld. As the trial judge himself acknowledges, that means the Court must impose an alternative penalty. That is an obligation placed upon the High Court by the Regulation. It is not optional. The legal basis for the Remedies Regulations is the European Communities Act 1972 and the obligations derive from Ireland’s membership of the EU.” Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7 [167] (Hyland J)

The Duty to Provide Reasons and Transparency in Public Procurement (v.2 – updated to 29 January 2025)