We won a lost bid by going to court

You do have power if you are willing to use it

In November 2017 MLS took the MoD to court over the MoD’s mishandling of the evaluation of their bid for support services worth approaching ￡400m. As the incumbent provider, MLS was well liked by the Royal Navy, for whom they provided the services. However, in the re-compete of their contract, the MoD rejected MLS’s bid even though they agreed that it had the best quality score and the lowest price in the competition. They did this because they evaluated one Pass/Fail question as a Fail. The issue was that they had not disclosed to bidders that a single Fail would result in rejection of the entire bid.

MLS used Expert Witness evidence to support its case that this was a hidden criterion and Sixfold was selected to act in this role. We had a ringside seat as MLS appealed the rejection decision in the High Court and won back the contract award. We believe that this is only the second time in the UK that a challenge during the standstill (Alcatel) period has resulted in the challenger being awarded the contract. Previously we had always believed the best outcome you could hope for in a standstill challenge was either damages or a new competition from scratch. As a result, this unusual case has given fascinating new insights for us as bidders, which we can use to help us in future challenges.

The Insights

Firstly, we have seen a nuance on the 30-day time limit for bringing actions. The MoD argued that the challenge was out of time because the error was made in the ITT and not challenged then. The judge ruled that the decision to reject MLS’s tender was the start of the time limit period and not the date the error was published in the ITT. So, think carefully about the time you could have reasonably known about the problem before assuming a challenge is out of time.

Secondly, we have learned that any error or ambiguity can be challenged, however trivial it appears at first. If it is possible that a requirement could be interpreted ambiguously by tenderers then you could have a case. So be prepared to “nit-pick” if a decision looks “wrong”.

Finally, you should remember the very wide scope to challenge any procurement decision. We have seen that the mere threat of legal proceedings can bring more detailed disclosure and changes to process and have even experienced contract awards being revoked based on ‘soft’ challenges of this nature. Look out for non-transparency, unequal treatment, discriminatory criteria, hidden criteria and manifest errors, to name but a few. And if you don’t know what these are, then please invite Sixfold to come and chat to you about them because they will be your ammunition should you wish to push back on an Authority.

Or if you feel your team could benefit from a more detailed appreciation of the ammunition of challenge, we have a one-hour briefing on the topic, looking at the potential for challenge from a bidder’s point of view. We would be delighted to share this with you and your team. Please give us a call on 01227 860375 if you think this would be of value.