As a Procurement Team, we’ve acted on many procurement disputes (often high profile), and quite frequently see similar issues arise. We've drawn on our wealth of experience in this regard to pull together some 'top tips' for those that contract with the public sector and are navigating the complexities of the bidding process. Read on to find out more.
Top tips for bidders
Late extension of time for bid submission?
Whilst bidders might feel this is welcome and relieves pressure, query if it could be an indication that the time has been extended to enable another bidder (who would otherwise be excluded) to submit a bid.
Following submission of bids, what are the implications of the awarding body issuing a clarification to all bidders inviting them to amend their bid?
It’s worth checking in the first instance whether the clarification was really needed. Consider whether it’s a possible indication that a bidder has made a mistake and that the awarding body is trying to give that bidder an opportunity to correct it by suggesting there was an ambiguity and opening the opportunity to all bidders.
Can an awarding body avoid using a regulated process by deliberately valuing the contract below threshold?
In these circumstances, consider whether there has been a genuine assessment of value or whether the contract may be expanded post award to a scale where it should have been formally procured.
Is the incumbent bidder involved in bidding for the new award?
Consider whether sufficient steps have been taken to level the playing field for all bidders, both in terms of knowledge of the contract but also in terms of the existing bidder making a cost saving from the infrastructure/resources it already has in place.
What should bidders consider if the awarding body makes a direct award without competition because of urgency?
Consider whether the circumstances qualify for a direct award – under the PCR, a direct award can only be made where it is “strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for a standard procurement cannot be complied with”. Covid issues are now unlikely to be unforeseeable.
Following a successful challenge, the awarding body takes a step back and invites the resubmission of bids
Consider checking whether information about your bid has been disclosed to other bidders in the original post award letters, with the effect that they are now in an advantageous position.
Follow your instincts
If something doesn’t feel right, it is often because something has gone wrong in the process and that could give grounds to challenge. We recommend always seeking advice promptly in these circumstances!
Requirements to evaluate social values and address climate change issues
(E.G. reducing carbon footprints in procurements) – These are high on the Government’s agenda and are going to be key areas of focus for bidders who are now required to produce carbon reduction plans – for more information, see our Insight on PPN 06/21.
The Green Paper Reforms
Keep an eye on this! Our recent Insight explained that, in October 2021, the Cabinet Office indicated in an update that its thinking had changed in several areas as a result of feedback on the proposals, and that it would publish a summary of the responses received and details of what the Government intended to do in response. The Government’s response to the consultation was subsequently published in December 2021, and what’s clear from that is that some of the original proposals in the Green Paper have now been further clarified or amended based on the feedback (such as in respect of the scope and application of the Light Touch Regime). Whilst a Bill is unlikely before the second half of 2022, and we don’t expect any new legislation to be passed before 2023, being prepared to implement major change and having sufficient training in place for all staff involved will be key to a smooth transition to the new procedure.
About the authors
With thanks to FOOT ANSTEY for allowing us to share articles & blogs from various leaders and employees