Public sector entities are leading the charge on bringing behavioural assessment into the construction tender process. This reflects the next stage in the continuing push by innovative public sector entities to pursue procurement strategies which deliver efficient capital investment. Contracting strategies such as alliancing, partnering and framework contracting have, in many circumstances, successfully delivered capital investment projects but in doing so they have highlighted the importance of cultural fit and relationship management to achieving that success. Applying these lessons learned to the next round of contract awards, the public sector is factoring in these "soft" skills by way of behavioural assessment in the tender process.

The tender process must be compliant with public procurement rules which means that the behavioural assessment has to be compliant within that process. Where a client chooses to include behavioural assessment in its tender process it has many options on how to carry this out but the overriding keys to compliance are:- transparency; non-discrimination; equal treatment; and proportionality. These must be met at every stage of the process.

The behavioural assessment in its most minimal form may be a question in the Pre-Qualification Questionnaire (PQQ). Questions in the PQQ should be backward looking. At its most basic this could be a request to provide references from previous employers or examples of behaviours exhibited on previous projects. This is scratching the surface and gives the client someone else’s view on the tenderer’s behaviour. To carry out their own assessment the prospective client needs more detail to be elicited from the tenderers.

At the ITPD/ITT stage the client has the opportunity to ask forward looking questions to ascertain how the contractor might behave in the future. This could require the tenderers to attend a behavioural assessment workshop. It could be a written scenario question so that the tenderers set out how they would respond. Whatever method is used to carry out behavioural assessment it is vital that it is measured and scored in a way which demonstrates transparency, non-discrimination, equal treatment and proportionality. To achieve this the award criteria must be clearly set out and all parties scored using the same methodology. Given the continuing application of the most economically advantageous tender (MEAT) award criteria (as per regulation 67 of the Public Contract Regulations 2015) there is view that behavioural assessment should not have a high percentage of scores allocated to it at the award stage.

Behavioural assessment shouldn’t end at contract award but carry on in the contract. The "right" behaviour from a contractor is easier to be achieved if the contract itself is clear and accurately reflects the expectations of the client and the contractor. Behaviours such as responsiveness and innovation can be incentivised and disincentivised by payment, retention and KPIs. Motivation of key persons to remain involved in delivery can be provided. A joint and workable process for discussing progress (e.g. a project board) and for resolving problems (e.g. escalation procedure) encourages understanding and flexibility. As with any performance standard it should be clear, measurable and have appropriate consequences.

For a client to successfully include behavioural assessments in their contracts they need to:

  1. set out clear objectives for this at the start of their tender process;  
  2. include it within the tender process with transparency, non-discrimination, equal treatment and proportionality assessment;  
  3. follow it through in the contract terms; and 
  4. remain engaged in the delivery and monitor those contract terms.

This Law-Now is derived from an article first published in Construction News on 22 January 2016.