Regulation 82 – Decisions of the jury

Commentary

Regulation 82 PCR2015 defines the role the jury of a design contest needs to follow in its decision making. These rules aim to ensure the independence that Regulation 81(1) PCR2015  facilitates through the avoidance of conflicts of interest, as well as to make sure that deliberations and exchanges of information are recorded in an accurate manner (but this may not have been needed, as Regulations 22(10) and 84(7) to (9) PCR2015 (CROSSREF) also impose similar documentary obligations for oral exchanges of information).

Under regulation 82 PCR2015, it is clear that the jury shall be autonomous in its decisions and opinions Regulation 82(1), that it shall examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice [reg.82(2)] and that anonymity shall be observed until the jury has reached its opinion or decision (Regulation 82(4).

Moreover, the jury shall record its ranking of projects in a report, signed by its members, made according to the merits of each project, together with its remarks and any points that may need clarification (Regulation 82(3). In that regard, candidates may be invited, if need be, to answer questions that the jury has recorded in the minutes to clarify any aspect of the projects (Regulation 82(5). And, in such case, complete minutes shall be drawn up of the dialogue between jury members and candidates (Regulation 82(6).

Once more, the trouble with Regulation 82 PCR2015 is not so much about what it regulates, but for what it fails to address. It is not clear how the jury needs to conduct its deliberations, or how should it adopt its decisions (consensus, open voting, secret voting, role of the president, etc). These are not issues for Directive 2014/24/EU to regulate, but the PCR2015 could have made the lives of contracting authorities easier by providing a default procedure that avoided them having to reinvent the wheel every time they decide to run a design contest. Luckily, maybe, that is not a very frequent occurrence.

Additionally, regulation 82 is provision very interesting for a sole fact: the anonymity of the candidates is supposed to be kept until a final decisions has been reached (paragraphs 2 and 4). Why is that important?

It has been well established in the literature that knowing the identity of a candidate leads to bias in the decision-making process. If we believe in advance that candidate X is good, we will be more inclined to give said candidate a free pass on mistakes or even be tempted to give the candidate a higher mark. This is the fundamental reason why UK academia has established a principle of anonymous marking (i.e., the lecturer does not know the student’s identity).

This principle should be prevalent in all public procurement decisions except where negotiations are involved, but even then we should clearly separate selection stage decision makers from the ones judging the tenders. Our view is that the same principle applies: if in the selection stage an evaluator gives a good marking, by and large at the tender stage said evaluator will be inclined to do the same on the tender.

One may argue that in a design contest the issue is more prevalent due to the “star power” of say certain architects or engineering firms. That is true, but we are talking only about different levels of intensity of the effect, not different effects altogether.

Last modified: December 5, 2016 by Pedro Telles

82.—(1) The jury shall be autonomous in its decisions and opinions.

(2) The jury shall examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice.

(3) The jury shall record its ranking of projects in a report, signed by its members, made according to the merits of each project, together with its remarks and any points that may need clarification.

(4) Anonymity shall be observed until the jury has reached its opinion or decision.

(5) Candidates may be invited, if need be, to answer questions that the jury has recorded in the minutes to clarify any aspect of the projects.

(6) Complete minutes shall be drawn up of the dialogue between jury members and candidates.