The contract award authority (a Department of Central Government – “the Department”) begins a process of procuring a public transport services contract which is governed by the Public Sector Directive [2004/18/EC].
There are four separate contracts to be awarded, each relating to a distinct geographical area of Northern Ireland. The tendering economic operators (“the tenderers”) are entitled to tender for one, some or all of the contracts.
The Department processes all of the tenders received. It purports to apply its published selection award criteria. The outcome is that three tenderers are successful at this first stage.
The Department then purports to apply the contract award criteria. The outcome is that two of the three tenderers are successful and the Department proposes to award to them, in differing proportions, the four contracts in question.
The third tenderer brings legal proceedings in the High Court, challenging the Department’s proposed award of the contracts. One of the main grounds of challenge is that the Department erred in its initial assessment that the two successful tenderers satisfied the selection criteria (viz. the first stage). The challenging tenderer does not simply assert this, but produces some supporting evidence.
Before the High Court, the Department’s primary riposte is that all of the complaints which the challenging tenderer seeks to make regarding satisfaction of selection award criteria will be considered by the Department in any event– at a third and final stage - which the Department labels “due diligence”.
The Main Question
The main question is whether, in proposing to conduct this third stage, the “due diligence” stage, the Department would be acting in accordance with the Directive. Some of the “sub questions” include :
Which provisions, if any, the Directive contemplate and authorise this third stage ?
Is the proposed third stage compatible with the principle of transparency ?
Can the third stage be reconciled with the ECJ line of decisions in Lianikis –v- Greece and Commission –v- Greece ? [See Seminar Paper No 3] .
If this proposed third stage is permissible under the Directive, how should it be conducted ? What are the procedural requirements ?