In March 2004, the defendants, who operate the Strathclyde Fire Brigade, issued an invitation to tender for certain services associated with its breathing apparatus equipment, under the Public Services Contract Regulations 1993 which has now been superseded.

The Office Journal of the European Communities specified the criteria for the award of the tender as the economically most advantageous tender complying with technical specifications. The quality of the service to be provided was not included, nor was the technical merit of the tender. As part of the evaluation process, the defendants prepared a “Tender Evaluation/Award Criteria Form” under which only three criteria were to be used in any comparative evaluation. These were price (50%), quality (25%) and technical merit (25%).

Tenders were received from the claimant and two others. The defendant excluded the claimant’s tender from the tendering process at the first stage on the basis that it was inadequately accredited; lacked qualified staff to carry out the contract; and lacked evidence proving the claimant’s quality standards. The claimant challenged the decision.

The first issue to be dealt with by the court was to identify the legal tests that apply when a tenderer challenges a contracting authority’s decision not to award him a contract. The second issue was to determine what, if any, losses flowed as a result of the claimant’s exclusion prior to the evaluation stage.