Discretion to stipulate selection criteria in a procurement competition

A recent decision of the High Court in Northern Ireland has confirmed the entitlement of contracting authorities to set technical and professional ability standards as a pre-requisite for admission to a dynamic shortlisting system (“DSS”). 

In an application for judicial review, the applicants (a chartered architectural technologist and the President of the Chartered Institute of Architectural Technologists) challenged the contracting authority’s decision to require that consultants applying for admission to the DSS had to include an architect within their teams. The applicants argued that the services required were within the professional competence and qualification of chartered architectural technologists and that by requiring that only architects could fulfil the role of lead consultant, the authority had narrowed the field of potential tenderers for the DSS. 

Humphreys J held that whilst an authority could not use selection criteria to artificially narrow competition, it could set standards by which technical and professional ability could be measured: “The Court of Justice of the European Union has regularly stated that contracting authorities enjoy a discretion in relation to the technical and professional ability standards fixed by any given procurement competition…It is frequently the case that a particular professional qualification is required in order to qualify for inclusion in a competition for an award of a professional services contract. This is entirely permissible provided it relates and is proportionate to the subject matter of the contract”.

Acknowledging that all selection criteria serve to narrow the pool of potential tenderers in a competition, the judge stressed that this was not anti-competitive; rather, it was the exercise of the authority’s discretion to set requirements for participation.

See In the matter of an application by Eddie Weir and the Chartered Institute of Architectural Technologists for Judicial Review

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