How to Avoid a Challenge
Challenges of public sector procurement exercises are on the rise. With the economy dipping after Brexit we may see squeezed suppliers looking even harder for reasons to challenge.
Until recently the University had been lucky and has not received more than grumbles from unsuccessful suppliers. However, on a recent high value, strategic procurement we were not so lucky; a challenge was received which led to the procurement exercise being terminated and a re-tender commenced.
Whilst there were no major faults with the procurement in question it was enough to stop the exercise before the challenge was potentially taken further. This has cost the University time in terms of the impact on programme, money and dented morale. If it had gone to court it could also have led to reputational damage for the UEA. The aim of this communication is to reiterate the requirements and the lessons learnt from this exercise and try to prevent this happening in the future.
The Public Contracts Regulations 2015 are very prescriptive regarding conduct of the procurement process and evaluation of bids (Pre-Qualification Questionnaire and Invitation to Tender). Issues with evaluation are one of the key areas that can lead to a challenge.
The University often employs consultants on large procurements to gain their detailed knowledge within specific technical areas. This can lead to issues when consultants draft procurement documentation, they have expert knowledge within their field but in most cases this knowledge does not extend to the Public Contracts Regulations. A member of the University’s legal counsel recently advised that in 90% of the cases that cross their desk the procurement issue has been caused by consultants and their lack of knowledge of the Regulations. It is perfectly legitimate to use consultants but we should ensure that all documents are reviewed by the procurement team prior to issue.
The Regulations require the publication of all evaluation criteria including scoring methodology and weightings. This must be clearly set out in the tender documents and the evaluation panel must score in accordance with this published criteria. The Procurement Team has templates which are available on request.
Selection and award criteria must not be confused. Selection criteria is used to select the bidders that can proceed to the tender stage, it is about the suitability of the company to perform the proposed contract. There are strict guidelines about what can be assessed at the selection stage. Award criteria is the list of criteria used to assess a bidders tender, you can select any award criteria but it must be proportionate to the value and nature of the contract. Award criteria assesses how the company will provide the specific goods/ services/ works for which the tender is being placed. This can include the team that will be assigned, their methodology for performing the contract etc. Award criteria only appear in the Tender, you must not mix selection and award criteria. Areas that are commonly known as “selection” and “award” criteria are listed in the table below:
|Selection Criteria||Award Criteria|
|Business probity and criminality checks||Price|
|Technical and professional qualifications, capability including experience||Quality|
|Economic and financial standing||
When evaluating, the evaluation panel must only consider what is written in the bidder’s tender response, prior knowledge of the bidder cannot be taken into account in any circumstances.
Recent legal guidance has suggested that the best and safest way for the evaluation panel to evaluate bids is all together rather than individuals evaluating and then coming together to compare scores. Evaluating separately can lead to a large spread in scores for the same question – this can indicate to bidders that the evaluation panel either don’t know what they are doing and/ or do not have the required technical knowledge to evaluate.
During the tender process the procurement team should ensure all communications with suppliers is through formal channels such as In-Tend – the University’s e-tendering system. This maintains an audit trail and ensures transparency. Any information circulated to one supplier must be provided to all without delay. Detailed notes of any meetings both internally and with suppliers must be kept.
When evaluating bids if a bid does not comply fully with the bid instructions it is at the University’s discretion as to whether we admit it or omit it. We must ensure we treat all bidders fairly i.e. if you let one bid containing errors in you must let all through. By allowing bidders through that have not fully complied you increase the risk of challenge. We would suggest that this should be looked at on a case by case basis.
All scoring and calculations in evaluation models should be checked to ensure there are no errors. An error can lead to a procurement being overturned even if the award result would not have changed.
When an award decision has been made a 10 calendar day standstill period must be held. This involves notifying all suppliers of the intended award decision prior to entering into the contract and allowing them 10 calendar days to challenge the decision. The standstill letter must be very detailed and provide full disclosure as to the reasons why a supplier has been unsuccessful. It must give a debrief against each of the award criterion. A supplier may request a debrief following receipt of the standstill letter, however, we should not be able to tell them anymore as all the details should be in the letter, if they are not then the standstill may be deemed to have not started.
If a supplier requests a debrief we can decline, careful consideration must be given and if a debrief goes ahead detailed notes of the conversation must be recorded.
Challenges are on the rise and we have seen the emergence of ‘no win no fee’ solicitors specialising in public procurement. By following the guidance set out here we can minimise the risk as much as possible. If you are unsure then consult the procurement team as soon as possible.
The University has just avoided a challenge on one of its tenders; challenges do occur.
Consultants are experts in their knowledge of specific goods/ works/ services – not the Public Contracts Regulations.
Selection and award criteria are distinct from one another.
Do not consider any prior knowledge of suppliers when evaluating bids.
The evaluation panel should conduct the evaluation as a group and not individually where possible.
All communications with suppliers must be through In-Tend.