Each government prizes their procurement in equality, non-bias treatment, transparency, and competition. In Europe, their public procurement directives, as interpreted in the case-law, express three guiding principles: transparency, equal treatment, and proportionality. Abiding by these directives is extremely important for organizations to avoid protests from contractors or vendors. Protests can cause a lot of pain, frustration, and consternation to governments in terms of time, resources, and public distrust.
In order to avoid these protests, there have been different approaches to procurement that have been designed to strictly abide by the government directives. One such approach has been the Best Value Approach (BVA). BVA is designed to cut out bias, decision making, and thinking in the procurement process. Despite it’s amazing results there has been criticisms that it doesn’t abide by the European laws.
Research on Protests
Jorn Verwey, a Dutch Researcher, was interested in seeing the actual results of BVA-related rulings. On the website ‘uitspraken.rechtspraak.nl‘, he used keyword searches to identify 17 BVA-related rulings in the period from February 2014 till March 2017. His purpose was to find out if the Best Value Approach would hold up in the European courts.
In 6 out 17 (35%) rulings, the cases concerned ‘general’ (non-BVA) procurement issues. These issues were pertaining to e.g. the Alcatel period, tenderers not fulfilling binding requirements, the right to redo a tender and etc…
In the remaining 11 out of 17 (65%) rulings, the case concerned BVP-specific tender issues, pertaining to e.g. transparency with respect to scoring of quality documents, motivation of rejection, the right to reject in the Clarification phase (and others).
Out of the 11 cases with BVP-specific tender issues, the provided information in the rulings led the Jorn Verwey to the cautious conclusion that in 5 (45%) cases the plaintiff showed lack of understanding of the BVA-method, and in 6 (55%) cases the buyer either poorly executed the BVA-tender, and or showed lack of understanding of the BVP-method/principles.
There were three conclusions that were made after analyzing the following BVA-related protests:
- Calling a tender/bid a BVA-tender doesn’t make it so.
- A well-executed BVA-tender/bid automatically abides the European public procurement directives, as interpreted in case-law.
- In the BVA, clients need to be careful that they run the process correctly. It will be clear if the client makes an error in the process because of the increased transparency.