Public procurement hell would stretch Dante’s imagination
Dante’s Inferno created a world of pain and suffering beyond all previous human imagination. His vision defined our modern picture of hell – a subterranean funnel of suffering in nine distinct levels, into which sinners were cast in accordance with the depth of their sin. Never before had the concept of hell been so captivating and so entertaining. However, public procurement rules did not exist when Dante’s hell was first crafted.
Arguably, if Dante lived amongst us today, he would be forced to add a tenth ring to his demonic underworld. In modern society, Botticelli’s Mappa dell’inferno needs to be updated to include the public procurement pitfalls which must be successfully navigated so as to eventually make the ascent into paradise.
The message here is simple for all contracting authorities that do not want to “abandon all hope” – you must start the procurement process with the end in mind. In any procurement process “the end” is the communication of a decision to prequalify or disqualify a candidate, or to reject or award a tender.
Template “Dear John” letters do not work; such letters have to be genuine and bespoke in order to be effective and limit (in as much as possible) the pain.
Whilst it might be thought as a natural adjunct to fairness in the decision-making process that reasons for the final decision are supplied to all candidates/tenderers, in Ireland and the UK (unlike the civil law countries on the continent) there is no general (statutory) obligation on an administration to explain their decision.
Even with no general duty to give reasons, recent cases indicate the courts’ willingness to find such a duty in the circumstances of the case.
Indeed, in his Hamlyn lecture (Protection of the Public – a New Challenge, 1990), Lord Woolf made a plea for a general requirement of the giving of reasons in the following terms: “I regard the giving of satisfactory reasons as being the hallmark of good administration and if I were to be asked to identify the most beneficial improvement which could be made to English administrative law I would unhesitatingly reply that it would be the introduction of a general requirement that reasons should normally be available, at least on request, for all administrative actions.”
In what can be seen as a step in the right direction, procuring contracting authorities have a statutory obligation under Article 41 of the EU Procurement Directive 2004/18 (as implemented in Ireland) to inform, upon request, the candidate/tenderer (whether successful or not) of the reasons behind their rejection or acceptance.
The practice of offering reasons underpins the values of transparency and accountability that permeate public procurement law. The main advantages of stating the reasons are:
(a) it discourages arbitrary decisions and, as such, gives the parties more confidence in the final determination;
(b) it enhances transparency, enabling the parties to discern whether grounds of review exist; and
(c) it promotes consistency in the decision-making process.
In the words of Jonathan Swift “when your thoughts are clear, the best words will offer themselves first and your judgment will direct you in what order to place them so as they may best be understood”.
This is particularly pertinent when considering the reasons behind your choices. In order to be able to clearly articulate why you rejected one tender and awarded the contract to another tenderer, you need to know precisely what: (a) the subject matter of the competition is; (b) the specifications/scope require; (c) the pass/fail requirements are; and (d) the selection and award criteria are seeking.
Whilst the above might sound like a self-evident truth (or a lapalissade as the French would say), it is not uncommon, in my experience, for the specifications and the pass/fail requirements in tender documents to contradict each other, and for the members of the evaluation team to disagree at the evaluation stage as to what precisely is covered by a specific criterion.
This can be resolved by avoiding the segmentation of the procurement process and ensuring that the members of the evaluation team are involved from the very beginning with the procurement agent and the responsible project manager; team work ensuring that the ‘good’ prevails.
In looking to the end at the beginning of a project, and understanding it will all culminate in a letter bringing the information of various parties together, it seems obvious to get everybody involved as one team from the beginning. It is simple; but efficient.
Bruno Herbots is a partner at Beauchamps Solicitors