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Why the decommissioning of nuclear facilities is relevant to all contracting authorities

A judge has found that the Nuclear Decommissioning Authority (NDA) had breached its obligations under public sector procurement law when awarding a £6.1 billion nuclear decommissioning contract in 2014. Following this landmark High Court ruling, the Government will pay compensation totalling almost £100 million to two US firms.

The case underlines the major implications a successful procurement challenge can have for a contracting authority and demonstrates the importance of ensuring the rules outlined in the Public Contract Regulations are followed.

It was found that the NDA had “fudged” the tender procedure, wrongly deciding the outcome by changing a scoring mechanism at a late stage, in addition to inconsistently evaluating tender submissions.

The ruling highlights the crucial importance of defining suitable evaluation criteria at the start of the procurement process and ensuring the criteria is followed when scoring tender submissions. Furthermore, this judgement follows in the footsteps of a number of recent cases that highlight the importance of a clear audit trail. It seems the NDA intentionally minimised the records kept due to concerns that they would cause an issue in a potential legal challenge. The judge, Mr Justice Fraser, concluded ‘the more comprehensive and robust the record of the SMEs [Subject Matter Experts] evaluation, the stronger the NDA would have been in terms of any challenge, assuming the evaluation was done correctly. Thus, ironically, in my judgment the NDA's approach to note-taking ran counter to its objective.’

Such a high profile case will bring the rules governing tender evaluation to the attention of suppliers who bid on public sector contracts. This additional awareness of the tender evaluation rules may increase the number of suppliers who challenge the outcome of tender processes where they feel they have been treated unfairly.

With core expertise in the EU Public Procurement Directive and associated Public Contracts Regulations, we have delivered over £5 billion of EU compliant tenders across a range of categories. If you require any advice or support on public sector procurement, please contact us:

Claire Paton Tel: 07828 143935 or email: cpaton@cirruspurchasing.co.uk

Mike Barnett Tel: 07572 108320 or email: mbarnett@cirruspurchasing.co.uk

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