It is now nearly 10 years since the European Court of Justice decided in Lianakis that the public procurement rules oblige contracting authorities only to consider the experience of bidders at the pre-qualification stage. At the award stage, an authority is not allowed to take into account the tenderers’ experience, manpower and equipment, or their ability to perform the contract by the anticipated deadline.
Despite a fairly considerable passage of time since the Lianakis ruling, it continues to cause trouble for authorities because, frankly, some bidders are simply more capable or more experienced than others and it feels illogical for authorities to ignore that when evaluating tenders. The result has been for authorities to consider experience through the backdoor, giving additional marks for solutions that are 'evidenced by experience' or including a 'deliverability' criterion for which evidence of past experience will count towards confidence in deliverability. The legality of such criteria has not been tested, but is somewhat doubtful. However, authorities have tended to rely on acting in a transparent manner and on the short limitation periods in which bidders can challenge procurement decisions.
However, things are set to change. Under the new public procurement Directive, which will enter into force in the UK at the end of February, it is expressly permitted to consider experience in some circumstances at the award stage. Further, a recent opinion in a case that is working its way through the European courts has suggested that even under the current rules there is some flexibility to evaluate experience. Both are undoubtedly welcome developments, although they still do not address all the issues caused by Lianakis.
Ambisig: evaluating experience of the team put forward
Advocate-General Wathelet handed down an opinion on 18 December 2014 in which he confirmed his view that in certain circumstances the experience of a team put forward is relevant to the authority's consideration of which tender is the most economically advantageous to it. He concluded that, in respect of contracts for services of an intellectual nature, the particular team put forward to undertake the contract is intrinsically linked to the quality of the solution presented. Evaluating the experience of that team at the award stage of the contract is not the same as evaluating the experience of the bidder. Instead, the team's competence, experience and effectiveness are part of the solution put forward, and the bidder's means of executing that solution.
He did not give an exhaustive list of what he considered services of an intellectual nature, but did include amongst them advisory services (which were the subject of the case referred to the European courts), and complex services where the professional qualifications of the personnel put forward are clearly relevant to the economic value of the solution.
He also added an additional proviso – on the basis that the authority considers the characteristics and specific qualities of the team to be critical at the evaluation stage, team members should then only be substituted with the consent of the authority and in circumstances in which that substitution does not reduce the value of the team proposed.
An Advocate-General's opinion is not binding and only the court's decision will give us a final view on the legality of evaluating the experience of team members. However, the general sentiment seems to be that the Advocate-General's approach is a sensible balance and is likely to be followed. He also sought to argue that the position is actually compatible with the existing Lianakis case law, on the basis that Lianakis related to general criteria regarding the bidder rather than key elements of a bidder's solution. In practice, therefore, he took a similarly narrow view of what Lianakis said to that which, as set out above, authorities have had to take in order to make it workable for them.
Evaluating experience under the 'new world' of procurement rules
To those who have been tracking the new procurement rules, the Advocate-General's opinion took a familiar stance. These new procurement regulations come into force for all contract award procedures started on or after 26 February, and they too recognise that in certain circumstances, the experience of the team put forward can be evaluated at the award stage.
The new rules provide specifically that contract award criteria may include the "organisation, qualification and experience of staff assigned to performing the contract" but only where "the quality of the staff assigned can have a significant impact on the level of performance of the contract". The recitals to the European Directive expand further, specifying that the quality of staff may be particularly relevant for "intellectual services such as consultancy of architectural services". The recitals also specify that "contracting authorities which make use of this possibility should ensure, by appropriate contractual means, that the staff assigned to contract performance effectively fulfil the specified quality standards and that such staff can only be replaced with the consent of the contracting authority which verifies that the replacement staff affords an equivalent level of quality" – although this requirement does not appear in the legislation itself, the clear wording of the recital means in essence it is likely to be treated as binding. The new legislative position is therefore what the Advocate-General has replicated very closely in his decision in December.
The new world is definitely an improvement. There is a clear right for authorities to consider the experience and qualifications of teams proposed where it's appropriate to do so. This provides some additional certainty which has been sorely lacking, and will be very useful for certain types of specialised services contract.
What is unfortunate is that the legislators chose not to go further, and have limited the consideration of experience only to considering staff proposed and only for a relatively limited pool of contracts. The new world of procurement law will still not allow authorities to consider generally the experience of the bidder after the PQQ stage of the competition, nor expressly take that into account in relation to the likelihood of delivery for example. Additionally, there still appears to be no scope for an authority to take into account the fact that one bidder is clearly more experienced, or clearly more capable, than another at the award stage. This is disappointing because it continues to ignore the commercial reality of how important these factors often are to award decisions. So whilst the new legislation provides some additional flexibility, it certainly doesn't solve all the problems in the context of evaluating experience.