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Justification for award decision. Assessment of award criteria. (week 29)
X has subscribed to a tender procedure of the Hoogheemraadschap de Stichtse Rijnlanden. The contract was awarded to Y. X objects to this provisional award decision, because the assessment of its tender by the assessment team is flawed and the provisional awarding plan taken by the Water Board is not properly reasoned. (Central Netherlands District Court, 3 July 2020, ECLI: NL: RBMNE: 2020: 2584)
Facts and circumstances
Hoogheemraadschap de Stichtse Rijnlanden (hereinafter: the Hoogheemraadschap) has organized a European public tender procedure to have the sewage treatment plant demolished on its site in Utrecht. There are three sub-award criteria with regard to quality, namely: 1) robustness of the planning, 2) quality of the demolition plan 3) quality of project management by the tenderer. X has subscribed to the tender procedure.
Notify all tenderers on 8 May 2020 that Y is the winner of the tender and that it therefore intends to award the contract to Y. X does not agree with this provisional awarding proposal because the assessment of its tender by the assessment team is flawed and because the provisional awarding proposal is not taking into account art. 2.130 Procurement Act 2012 (Aw 2012) is motivated.
Assessment of the dispute
X argues that the assessment by the assessment team is flawed because the assessment team was biased. According to the preliminary relief judge, it is not plausible that this is the case. X bases her claim that this has been the case mainly on her gut feeling. The fact that the winning tenderer is also involved in demolition work for the Water Board in an area adjacent to the area covered by the tender does not mean that the assessment committee has been biased in allocating the figures. Even if this is seen in combination with the fact that the assessment team did not evaluate the tenders anonymously and thus knew who each tender belonged to, according to the preliminary relief judge.
X further argues that her tender should have been rated higher. She believes that her tender amply meets the requirements set in the tender documents and should have been rated higher. According to the preliminary relief judge, this argument does not hold. It is up to the assessment team to assess and evaluate the tenderers tenders and not to the tenderer himself. The fact that X therefore believes that she should have received a higher rating does not mean that the assessment teams assessment is incorrect. There are no indications that the evaluation by the evaluation team of the tender of X is apparently not good.
X further argues that the assessment is flawed because the reasons given for the figures allocated to her are flawed, unclear, incomprehensible and / or inimitable. This argument also does not hold according to the preliminary relief judge. In the provisional award decision sent to X, the scores given to X for the three sub-award criteria for quality are motivated under the heading Argumentation with regard to the main features of the valuation. It can be admitted to X that this is not a full statement of reasons and that the statement of reasons could have been better on some points. However, this does not mean that the assessment by the assessment team is incorrect and is therefore incorrect, according to the preliminary relief judge.
In the present proceedings, X puts forward a number of arguments as to why the assessment of the award criteria and the reasons thereof are flawed. With regard to these points, the preliminary relief judge concludes that it is not plausible that the assessment by the assessment team is not correct. There is therefore no reason to intervene by the preliminary relief judge on that ground.
X further states that the provisional award decision does not take into account art. 2,130 Aw 2012 is motivated. The preliminary relief judge follows X on this point. In the preliminary award decision addressed to X, the Hoogheemraadschap has included a table in which the tender price and the scores of the Y and X for quality are stated. However, this is not sufficient to meet the obligation to state reasons according to the preliminary relief judge. It must also be made clear why Ys registration is better than Xs. However, this has not happened. The Hoogheemraadschap has argued that the relevant reasons, the characteristics and advantages of Y are evident from, among other things, the criticisms of the registration of X because it shows what the advantages of the registration of Y are.
Conclusion
The preliminary relief judge will award Xs claims for revoking the provisional award decision and a prohibition on awarding the contract to Y on the basis of that award decision.
(IBR, July 15, 2020) |
