ARTICLE · 16 FEBRUARY 2018

Do Not Pass Go? Pass/ Fail Questions And Their Consequences

Clyde & Co

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A failure to spell out the consequence of failing a pass/ fail criterion in an Invitation to Tender ("ITT") may mean that an authority cannot reject a tender which fails the criteria.

United KingdomGovernment, Public Sector

Olivia Blessington

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A failure to spell out the consequence of failing a pass/ fail criterion in an Invitation to Tender ("ITT") may mean that an authority cannot reject a tender which fails the criteria. As the Court recognised, the judgment has potentially far-reaching consequences for authorities and bidders alike.

MLS (Overseas) Limited ("MLS") brought a challenge against the Ministry of Defence's ("MOD") decision to award a contract worth circa £385 million to a rival tenderer, Shipping Consultants Associated Ltd ("SCA") in respect of various support services to the Royal Navy – including its new aircraft carrier, the Queen Elizabeth. The procurement process was subject to the Defence and Security Public Contracts Regulations 2011, as amended ("DSPCR").

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