Tenders must be assessed on the basis of the method set out in the tender documents. External sources, the BVP tendering manual for example, may not be used here. This all the more so now that there is no consensus in literature on BVP tenders on the correct method of assessment.
BVP tender – therefore also application of BVP manual?
The Municipality of Apeldoorn and the Security Region North and East Gelderland contracted out cleaning work. They used the Best Value Procurement (BVP) method to this end. The tender documents apparently referred to the website for BVP tenders and the manual published there. However, not all the elements of the BVP method had been applied in the tendering procedure.
After assessment, the tender of CSU was declared invalid. The reason for that was that due to a score that was too low an addition was allocated to the tender. In preliminary relief proceedings, CSU argued that the tendering methodology of the contracting authority was unlawful as the method described in BVP tendering manual had not been (comprehensively) followed.
The court in preliminary relief proceedings: only the tender documents are relevant
The Court in Preliminary Relief Proceedings Gelderland acknowledged that the assessment method as described in the tender documents did not contain all the elements as set out in the BPV manual. The mere fact that the tender documents stated that the tendering procedure would follow the BVP method did not mean, according to the court in preliminary relief proceedings, that the BVP manual and the assessment method it contains had to be (comprehensively) followed. Even if the tender documents referred to the relevant website. It would be contrary to the principles of procurement law on equal treatment and transparency to have the assessment take place on the basis of what literature has written on the BVP method. It cannot and may not be expected from tenderers that they are fully abreast of the relevant literature. In addition, the literature does not contain an (unambiguous) assessment method on the BVP method and there is no consensus among authors on a correct manner of assessment Which is contrary to the fundamental principles of procurement law.
The principles prescribe that the assessment of the tenders can and may only take place in the manner as set out in the tender documents. Even if the assessment method described in there does not correspond with the literature. This meant that the claims of CSU were rejected.
In my opinion, this is a solid judgment that is fully in line with European case law. On that basis, all the criteria relevant for the assessment of the tenders must be set out in the announcement, or in the specifications that are made available at the same time as the announcement, and interpreted and applied in the same manner during the whole tendering procedure . In my opinion, a reference in the tender documents to a website from which the bidders themselves must distil information on the assessment method does not tally with this. It is contrary to the transparency principle. In addition, the judgement also shows that there is no consensus in literature on the correct and objective manner of application of the BVP method. Which also tells us something about how this method relates to the transparency principle.
For the assessment of the bids, the tenderers only have to rely on the tender documents therefore. Tenderers would be wise to study those carefully for lack of clarity and unlawfulness. This does not, however, release the contracting authorities from their duty to prepare clear and lawful documents.
Joris Bax, lawyer specialising in procurement and construction law at Dirkzwager.