The court will only interfere in an evaluation if there has been “manifest error”, and when assessing that, evaluators are entitled to act within what is called a “margin of discretion”.
Bechtel, an unsuccessful bidder, challenged the outcome and process of the procurement, alleging that there were manifest errors in scoring, that there were inadequate records of the moderation and assessment process in breach of the transparency principle and that the winning bid should have been disqualified for being abnormally low due to a lack of resources. Bechtel further alleged that the winning bid and the contract entered into with the winning bidder had been unlawfully modified.
The Judge commented on the nature of judicial oversight in procurement cases, which is exercised with restraint. Proceedings are not an appeal against the outcome of the decision and the Court will only interfere with evaluation if there is manifest error.
He rejected substantially all of Bechtel’s arguments and its case failed completely.
The Judge held not only that HS2 made no manifest errors in the evaluation of bids, but also that it made no errors at all.
Some helpful observations from the Judge on training moderators:
“Moderators were given training…. Materials from the training showed that moderators were told the principles behind procurement regulations, and also demonstrated an awareness on the part of HS2 of the risk of a potential challenge to the outcome of the competition.
And further:
“Maintaining an audit trail — ensure moderation and moderation assurance is fully documented and all score changes and reasons for changes are fully explained and justifiable. Mitigate risk of successful procurement challenge – evaluation is the key risk area in terms of possible procurement challenge!”
Bechtel Ltd v High Speed Two (HS2) Ltd [2021] EWHC 458 (TCC) (04 March 2021) (bailii.org)
In2 the bargain 