No basis for setting aside evaluation model
In a recent decision, the Danish Public Contracts Appeals Board established that the evaluation model defined by the contracting entity with respect to the sub-criterion "Price" was not unfit to identify the most economically advantageous tender, even if one of the tenders received was not within the scope of the model. The Appeals Board further accepted that the contracting entity had awarded the tenderer in question -4.1 points although points could be awarded on a scale of 0-10 according to the tender specifications.
Brief summary of the case
On 6 February 2020, the municipality of Faaborg-Midtfyn and FFV Spildevand A/S (the "Contracting Entity") initiated a negotiated procedure under the Danish Act on public procurement for a contract for total consulting services with respect to the construction of "Fremtidens Forstad | Årslev - BYMIDTEN".
It appeared from the tender specifications that the award criterion was the best price-quality ratio and that the Contracting Entity would award points for the sub-criterion "Price" by a straight interpolation between the lowest price (10 points) and the lowest price + 150% (0 points). According to the information provided, a secondary model had not been defined which would be applied in case prices would be received which were not within this spread.
On expiration of the deadline for the submission of tenders, the Contracting Entity had received tenders from Sweco Danmark A/S ("Sweco"), Rambøll Danmark A/S ("Rambøll") and Transform ApS ("Transform"), among others.
In the contract award decision of 12 May 2020, the Contracting Entity announced that the contract would be awarded to Rambøll. As far as the Contracting Entity's evaluation of the sub-criterion "Price" was concerned, it appeared that Sweco had submitted the tender with the lowest price and had therefore obtained 10 points, whereas Transform had been awarded -4.1 points, corresponding to Transform having submitted a price that was approximately 210% higher than Sweco's price.
Following this, Sweco lodged a complaint with the Danish Public Procurement Complaints Board. Sweco claimed, among other things, that the Contracting Entity had acted contrary to section 160 of the Danish Act on Public Procurement by using an evaluation model which was not suited to identify the most economically advantageous tender. Sweco stated that the model was not representative in relation to the prices received, and that the award of negative points distorted the sub-criterion "Price" in terms of the qualitative criteria.
The decision made by the Danish Public Contracts Appeals Board
The decision concerns the question as to whether the complaint is to have suspensory effect, which implies eg that, on an initial analysis, there is something to the complaint (fumus boni juris). The Appeals Board found that there was no prospect of that on the preliminary basis.
As for the claim regarding the evaluation of the sub-criterion "Price", the Appeals Board initially stated that the Contracting Entity had described in the contract documents which evaluation model it would use.
Next, the Appeals Board stated that the fact that Transform ended up submitting a price that was not within the scope of the model and was consequently awarded negative points did not mean that the model had specifically been unfit to reflect the most economically advantageous tender. (Calculations produced by the Contracting Entity show that irrespective of whether Transform had been awarded negative points or 0 points, Rambøll would still have submitted the most economically advantageous tender.)
The decision shows that it takes a lot for the Appeals Board to set aside an evaluation model described in the contract documents if the model has not specifically been unfit to reflect the most economically advantageous tender. This also applies in a situation where the spread in the prices received turns out to be larger than expected and one of the prices received is not within the scope of the model.
Further, the decision shows that in such a situation it is apparently not out of the question to award negative points. This is interesting, as the Appeals Board has previously stated that the contracting entity must use the same range of points when evaluating the various sub-criteria in order to ensure that the mutual weighting not be disturbed. The scale of points will not be the same if negative points may be awarded for one sub-criterion, whereas it is not the case for the other sub-criteria.
Regardless of the Appeals Board's decision in the above matter, it is our recommendation that contracting entities do not rely on being able to award negative points to tenders that turn out not to be within the scope of the model defined. It may potentially imply a disturbance of the mutual weighting of the sub-criteria with the consequence that the model will not be suitable to reflect the most economically advantageous tender.
If the contracting entity uses a point model using the lowest price as the starting point, the contracting party should instead try to take into account a larger spread of the prices received than expected by defining, for example, a secondary model that may be used if the spread of the prices received is larger than expected. Alternatively, a contracting entity can consider using another type of evaluation model. Plesner will be happy to provide advice on and assist in defining evaluation models.
See the decision made by the Danish Public Contracts Appeals Board on 19 June 2020 (in Danish) here.