Maverick Advocaten has successfully represented an IT service provider (the “unsuccessful bidder”) in preliminary relief proceedings regarding a tendering procedure of a public partnership (the “partnership”). The tender related to the streamlining of the process for the hiring of flexible staff for the partnership. The contract was ultimately awarded to another IT service provider (the “successful bidder”). The court has now ruled that the partnership must retender the contract.
It was apparent from the award decision that the partnership had not awarded any points to the unsuccessful bidder for three sub-award criteria (zero score). The unsuccessful bidder then sued the partnership and demanded (i) principally, that the contract be awarded to the unsuccessful bidder after all; (ii) alternatively, that all the tenders be reassessed; or (iii) as a further alternative, that the contract be retendered.
The unsuccessful bidder took the position that its tender met the requirements of the tender documents. Moreover, according to the tendering guidelines, a score of zero points cannot be awarded and is therefore not in accordance with the specifications. If a proper assessment had been made, the unsuccessful bidder would have been the winner.
The question before the court was whether the unsuccessful bidder had correctly understood the qualitative sub-award criteria and whether the partnership had assessed the unsuccessful bidder’s tender in accordance with the tender documents.
In its judgment, the court first of all emphasised that the principles of transparency and equality mean that it must be assessed how a reasonably well-informed and normally diligent bidder could have interpreted a criterion. In the court’s opinion, the tender documents were open to multiple interpretations. The terms of the contract were therefore not formulated in a clear, precise and unequivocal manner.
“[4.6] This means that the terms and conditions of the tendering procedure were not formulated in such a clear, precise and unequivocal manner that a reasonably well-informed and normally diligent bidder could understand their proper scope and would interpret them in the same manner.”
The court then found that the primary and secondary claims were inadmissible. Awarding the contract to the unsuccessful bidder after all would not do justice to the successful bidder’s interests and a reassessment of unclearly formulated award criteria would not be possible. The further alternative claim for a retendering procedure was allowed, however. The court furthermore stated that the awarding of a zero score was in any event not in accordance with the specifications.
“4.7 For the record, the court notes that [the partnership] also did not act in accordance with the specifications by failing to award any points at all for the three qualitative sub-award criteria.”
In sum, the court found in favour of the unsuccessful bidder and, insofar as the partnership still wishes to award the contract, it must be retendered. Th entire judgment can be found here.