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Energy Solutions EU Limited v Nuclear Decommissioning Authority

The second case highlights the dangers of poor evaluation records. This case concerned the procurement of a significant contract by the Nuclear Decommissioning Authority (NDA) for the decommissioning of 12 nuclear facilities, worth billions of pounds.

The claimant was an unsuccessful bidder which had lost by a narrow margin – just 1.06%. It alleged a number of issues, including scores which did not properly reflect the quality of the bid, a failure to exclude bidders that had failed on pass/fail criteria, and changing scores without documenting reasons. In finding for the claimant, the court heavily criticised the procurement process and the conduct of the NDA as regards record-keeping and transparency.

The court found there was, at the very least, a strong discouragement of the evaluators taking comprehensive notes. No hard copy notes were permitted at all, with heavy reliance on the ‘Award’ system, an electronic record where the evaluators would input their own individual comments until consensus meetings were held, at which time a consensus entry was made to explain the comments for the score and the individual comments were removed. This was effectively the only mechanism for making notes during the process. Once the Award system was closed on a particular score, there was nowhere for any evaluator to record why a score might change (as happened on numerous occasions). Fraser J was critical of the lack of transparency involved in the system, and the almost complete absence of evaluation records it produced. He felt that the NDA was paying ‘lip service’ to its transparency obligations, while in reality attempting to keep records to a minimum in order to minimise available evidence for any disgruntled bidder seeking to challenge.

On various occasions, changes were made to the scoring following undocumented conversations with senior personnel at the NDA, and following a review by the NDA’s lawyers. A key decision on whether the winning bid had passed or failed was again made in an undocumented conversation, with no reasons recorded. While accepting that the NDA was entitled to claim privilege over the legal review, Fraser J pointed out that this created another gap in the already poor decision-making record.

The judge also reviewed the policy included in training slides for the evaluators, the initial draft of which indicated that all handwritten notes would be shredded at the end of the process, and then ultimately stated that ‘as a matter of policy, evaluators must only use the Award system to record notes’. Evaluators were then sent an email insisting that they refrain from writing on the hard copy tender documents and only use the software to record notes, which ‘can then be deleted from the system if no longer required/answered during final review stage’. Fraser J said it was ‘wholly unacceptable’ and ‘extremely worrying’ that a publicly funded body would consider such a policy, highlighting the ‘clear obligations of transparency’ upon the NDA, particularly where notes of the procurement process may become subject to disclosure in subsequent legal proceedings. Ultimately, the judge found that NDA’s approach to record-keeping in the process was in breach of the obligation of transparency.