3.9 Procurement rules required the NDA to award the contract to the bidder that provided the most economically advantageous tender against agreed evaluation criteria. The NDA team evaluating the bid consisted of subject matter experts. To strengthen compliance with competition procedures, the NDA designed the evaluation process so that people outside the evaluation team were excluded from any involvement in the evaluation, and the bids were anonymised. When neccessary, access was allowed for NDA's internal audit team and its legal advisers, Burges Salmon, to provide assurance that processes were being followed correctly.
3.10 NDA executives were confident that the procurement was carried out robustly and that the outcome was correct. The CPB and the NDA Board and executives received assurance from internal and external reviews, including:
• two NDA internal audit reports reviewed governance arrangements and looked at whether evaluators had complied with the evaluation process. Reviewers checked a sample of 5% to 10% of the process to assure compliance. Both reports awarded a 'green' rating;
• four MPA reports, which rated the competition as 'green' and 'amber-green'. These 'strategic assurance reviews' each took place over a period of three days, and aimed to assess whether the project was on course to deliver its objectives. Each review had its own terms of reference; they included assessments of project plans, controls, delivery approach, risk management and resourcing. Their scope did not include examining whether evaluation guidelines were followed appropriately or in accordance with public procurement guidelines; and
• the NDA hired consultants to give advice on specific aspects of the design of its evaluation scheme. In autumn 2013 the consultants simulated the NDA's process for adding up the total score of each bid to check whether the process had been clearly defined. They did not give advice on what the evaluation criteria should be, or check that they had been applied correctly.
3.11 These reviews had limited scope and ability to detect issues later identified in the High Court judgment. We note, however, that the NDA did not commission any further assurance reviews on evaluation compliance with procurement regulations after it became aware of the potential for legal proceedings or before its decision to defend claims in court.
3.12 The NDA requested and received two letters of comfort from its legal advisers, Burges Salmon, in September 2013 and March 2014. In the first, Burges Salmon noted that, as of the date of the letter, the NDA had complied with its obligations under public contracting regulations. In the second, Burges Salmon noted that its involvement included:
• assessing specific commercial sections of the bids against the relevant evaluation crtieria;
• providing ad hoc advice to the competition team on issues of compliance; and
• periodic reviews during the evaluation period of the scoring and rationale to help evaluators appropriately align their scores and comments against the evaluation requirements. Burges Salmon further noted that at the time of writing it had completed a review of all scores and comments and provided feedback to the NDA evaluators.
Burges Salmon confirmed that, subject to the NDA's evaluators' reviewing and acting on their advice, they were "not aware of any reason" for the NDA not to issue the preferred bidder report and appoint CFP.