In yet another public procurement case derived from a complaint by the Greek company Evropaïki Dynamiki, the General Court has analysed the issue of the degree of precision required in the description of evaluation methods for contract award purposes in its Judgment of 12 July 2012 in case T-476/07 Evropaïki Dynamiki v Frontex.
Regarding the degree of precision in the publication of the award criteria and the evaluation methods to be used by the contracting authority, the GC has adopted a lenient approach that seems questionable, since it may result in leaving excessive discretion in the hands of evaluation teams. It is worth stressing that the GC in Frontex considers that:
the fact that a precise scale of the calculation of the tenders with regard to that award criterion [multiplication of efficiency by effectiveness] was not given cannot constitute a breach of the tendering specifications consisting in the introduction, by the contracting authority, of a new award criterion. The calculation used to arrive at a well defined score does not constitute an evaluation criterion of the proposed hypothetical IT solution, but rather a consequence of that evaluation (case T-476/07, at para 106, emphasis added).
This seems to me as a highly controversial finding, which may run contrary to the case law of the Court of Justice of the EU, particularly in Lianakis (C-532/06 [2008] ECR I-251), where the CJEU clearly indicated that it is settled case law that: "potential tenderers should be
aware of all the elements to be taken into account by the contracting
authority in identifying the economically most advantageous offer, and
their relative importance, when they prepare their tenders" and that "[p]otential tenderers must be in a position to ascertain the existence and scope of those elements when preparing their tenders" (paras 36 and 37, emphasis added). Even further, the CJEU stressed that "tenderers must be placed on an equal footing
throughout the procedure, which means that the criteria and conditions
governing each contract must be adequately publicised by the contracting
authorities" (para 40, emphasis added).
If evaluation methods do not include the scales to be used by evaluation teams when they assess the tenders submitted by bidders, it is hard to see how all transparency requirements will be made operational and how applicants can effectively tailor their offers to the actual (preferred) requirements of the contracting authority or entity.
Unless there is a good overriding reason to keep the evaluation methodologies and scales secret or undefined in contract notices and documents, it seems clearly desirable that evaluation methods AND scales are published and available to bidders when preparing their tenders. In the end, it is not very useful to know that your tender will be assessed under a criterion of 'efficiency' or 'effectiveness' if there is no indication whatsoever how such requirements will be operationalized by the evaluation team.
Therefore, I think that the position of the GC in Frontex clashes with the more general case law highlighted by the CJEU in Lianakis, and that Frontex reflects a too lenient approach towards unjustified restrictions in the transparency of evaluation tools and procedures in public procurement.
In this regard, it seems desirable that the current revision of the EU Directives further details the obligations of contracting authorities to specify evaluation methods and scales in contract notices (e.g. in article 66 of the proposal for a Directive replacing 2004/18).