Procurement decision rejects lack of transparency claim

The outcome of Shetland Line (1984) Ltd v Scottish Ministers [2016] CSOH 41 represents a milestone in an already lengthy legal battle. In September 2011, the ministers advertised the public procurement contract for the provision of ferry services to the Northern Isles. Shetland Line was an unsuccessful bidder in that competition. The standstill was revoked by Lord Malcolm on 29 May 2012 ([2012] CSOH 99), which allowed the contract to be concluded with Serco, the successful bidder. That motion was granted on the balance of convenience in the interests of allowing vital ferry services to continue in operation. Lord Malcolm observed that damages would provide an adequate remedy for any breaches in the award process.

Shetland duly proceeded to seek damages on the basis that the process lacked transparency in relation to the services which were actually required and therefore the competitive process was unfair. It was contended that the ministers ought to have determined the levels of current and anticipated future demand for freight, including time sensitive freight, and to have used those as benchmarks against which the bidders’ proposals fell to be assessed.

The court held that there was neither arbitrariness nor lack of transparency in the evaluation process: the Scottish ministers were not obliged to carry out any benchmarking exercises. The lack of postulated benchmarking rendered the evaluation process neither arbitrary nor subjective and the panel had carefully examined the demand for freight identified in each of the bids and the proposals which were made to meet that demand.

The full decision may be read here.