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Running a high-value procurement process
Remaining compliant and getting value for money for the procurement being undertaken needs 'tender' loving care. Lorraine Ashover offers guidance and pitfalls to avoid
The Education Skills Funding Agency (ESFA) have recently published information about the 2017-18 academies year end accounts. One of the top three reasons for modified regularity opinions, consistent with the previous year, is non-compliant procurement practises.
Depending on the value of the tender and the procedure chosen there are various stages involved and it’s important to be confident that the documents you are issuing are right.
This article focuses on a procurement with the following characteristics.
- The value of the services being procured breaches the Official Journal of the EU threshold of £181,302 for ‘Services’ and ‘Supplies’.
- The ‘Restricted’ procedure is being used.
- The services being procured are not school catering (which fall under the ‘light touch regime’ and hence has a different process/threshold).
There are many variables which could result in changes to the tender documentation you issue and process you follow. However, much of the guidance here is relevant to a wide variety of tender processes.
When you have a new procurement to undertake or a contract renewal, don’t forget the following.
- Plan way ahead of time. With school holidays, availability of personnel and mandatory periods for various stages of a restricted tender to be ‘open’, allow at least six months to run your process.
- Invite suppliers to visit and review your current service provision. Pre-market engagement is a great way to get ideas on how your service could be improved and the ‘art of the possible’.
- Develop a robust specification and set of requirements. Substantial changes could be seen as a breach of the Treaty Principles of Transparency and Equal Treatment due to a violation of Regulation 72 – Material change.
- Two heads are better than one. Work alongside colleagues in your own MAT or others. Don’t waste time reinventing the wheel if someone else has already done it!
Documents to provide
Regulation 53(1) states that:
(1) Contracting authorities shall, by means of the internet, offer unrestricted and full direct access free of charge to the procurement documents from the date of the publication in the Official Journal of a notice.
Memorandum of Information (MoI): this is to enable bidders to fully understand the scope and value of the contracts and decide on whether they wish to tender.
Technical Specification or Statement of Requirements (SoR): for tenders such as ICT Managed Services or for complex technical procurement, a detailed breakdown of your requirements is essential.
Regulation 42 states that there is a requirement to ensure that technical specifications ‘afford equal access of economic operators to the procurement procedure and shall not have the effect of creating unjustified obstacles to the opening up of public procurement to competition’.
What this means in practice is that you must be brand agnostic i.e. the requirement should be for tablet devices not iPads.
Invitation to Tender (ITT): this document is bespoke to your requirements and asks the bidders to advise how they would go about the delivery of your specific services. It should include evaluation criteria, scoring and weighting none of which should change once the documentation has been issued.
Legal contract: this must form part of your procurement documents but is frequently missed. As well as ensuring compliance it will also prevent you from being forced to accept the contract provided by the winning bidder which will potentially favour them and not you.
Bidders: how many and who should you invite?
Once your documentation is complete, making sure you get a good number of submissions from quality bidders is critical.
- Your tender must be advertised with the Official Journal of the European Union (OJEU) via a Contract Notice which can be published via e-notices on Tenders Electronic Daily (TED).
- Contract Notices are publicly available, and many suppliers are registered to receive alerts for opportunities in their industry and geographic patch.
- You can be proactive in making bidders aware of the opportunity, so if you have a supplier you would like to bid you can let them know.
- There is no restriction to the number of bidders who can submit a tender response at the SQ stage of the ‘Restricted’ procedure. Depending on the service being tendered, on average you can expect anything between three and 25 bids.
- Based on the scoring and evaluation criteria in the SQ stage, you can shortlist a more manageable number of bidders for the ITT stage. We would recommend no more than five.
- For complex and high value bids you may wish to hold a presentation day. If you plan to restrict the bidders who will present to less than the five shortlisted you must make this clear in the tender documents from the outset.
Bidders (both successful and unsuccessful) will want feedback. You need to ensure that the following is supplied.
- Written feedback on the added value and deficiencies of their bid
- Their score for each question
- The scores of the winning bidder for each question
A Contract Award Notice must be published on the OJEU within 30 days of the conclusion of the contract.
This is vitally important. Regulation 84 of the PCR 2015 requires contracting authorities to draw up a report in relation to each contract or framework that is awarded, and ensure it includes all the information set out at Regulation 84(1).
In addition, Regulations 84(7) and (8) require the documentation of the progress of all procurement procedures and the keeping of documentation to justify decisions taken at all stages of the process. This is essential for governors, trustees and auditors.
Five ways to avoid challenges
- Don’t ignore the Public Contract Regulations 2015 – it may sound obvious but they’re not optional.
- The OJEU threshold is £181,302 – this is the whole life value of the contract, not the annual value. A three-year contract for services at an annual value of £65,000 breaches the threshold.
- You must not sign contracts or start mobilisation until the end of a standstill period. The standstill period is 10 calendar days, provided that the communication is sent to all suppliers by electronic or fax means. It is to allow unsuccessful bidders the opportunity to challenge the fairness of the contract award decision or process.
- Don’t deliberately break up your contracts/requirements into smaller ‘lots’ to avoid having to follow the Regulations.
- Seek help – there are myriad places including, Buying for Schools, Regional Buying Hubs (South West and North West), procurement consultancies, Chartered Institute of Purchasing and Supply and colleagues.
There are plenty of pitfalls with procurement, especially when it involves the PCR 2015. However, there is a wide range of free guidance available to you and if you are unsure about any aspect of the process or tender documentation it’s important to get advice.
Following the Regulations will not only ensure you remain compliant but enable you to get a service offering best value.
Note: the information provided in this article relating to EU procurement legislation is for general information purposes only and does not provide legal or other professional advice.
Minerva Procurement Consultancy Services Limited is not responsible for any damages resulting from any decisions of the reader that are made in reliance on the information provided through the article, including legal, compliance and/or risk management decisions. The reader agrees that it uses the information at its own risk in these respects.
Last Updated:21 Mar 2019