This is the third in a series of four articles on public procurement. In the next and final procurement pitstop, I will look at bringing and defending challenges to public procurement decisions.
The OJEU notice has been published to invite expressions of interest, the economic suitability of each organisation who came forward has been assessed, a shortlist of bidders on that basis has been selected, the ITT has been issued and now the bids need to be marked and the award of the contract made to the successful bidder.
At this point the contracting authority should be looking at the merits of the bid and not the bidder. The Public Contracts Regulations say that a contracting authority may award a public contract on the basis of either:
- the most economically advantageous bid (MEAT); or
- the lowest price.
Examples of non-price elements that can be taken into account are quality, technical merit, aesthetic and functional characteristics, cost effectiveness, delivery and completion time. These are called the award criteria. We often see ITTs that ask bidders to prepare a suggested programme of the building works with materials and pricing where the contract is to be awarded to the bidder with the best price/timing combination.
Bidders should be made aware when receiving the ITT of all award criteria that will be taken into account and scored by the contracting authority, this includes all sub-criteria, sub-sub criteria, maximum scores for each section and the percentage weighting given to each section which will finally make up the total bid score. Before releasing the ITT, test the marking scheme to ensure it works by marking a dummy or old bid from a previous project.
If an interview is to take place will this be marked? If so how? How much importance will be placed on interview performance? It is always prudent to award some marks to a face to face stage of the bid because meeting the personnel from the bidding organisation can influence a decision.
The evaluation of the tender must stick to the method described in the ITT. Re-read the ITT and keep a copy handy when evaluating tenders. Adequate records should be kept. Bear in mind the Freedom of Information Act 2000, Environmental Information Regulations 2004 and the Audit Commission Act 1998, all of which provide mechanisms that can be utilised by an unsuccessful bidder to seek access to procurement records.
If advice is sought on the application of the Public Contracts Regulations, remember that it is only communications between solicitor and client that may be protected from disclosure in later court proceedings; communications between solicitor and consultants will not.
For procurements commenced on or after 20 December 2009, letters informing the successful and unsuccessful bidders to whom the contract will be awarded should set out:
- the award criteria and scoring method;
- the reasons for the decision, including the characteristics and relative advantages of the winning tender;
- the actual scores of the recipient of the letter and the overall score of the successful bidder;
- the name of the successful bidder; and information about the start and end of the standstill period.
A letter simply offering to debrief an unsuccessful bidder upon request is no longer acceptable.
Working out the standstill period
The standstill period should end, at the earliest, 10 days after the letters are all faxed/emailed or 15 days after the letters are posted. Bear in mind the following points:
- The day on which the letters are emailed/faxed/posted should not be included in the calculation.
- If the last day of the 10 or 15 day period is not a working day then the period should be extended so that the last day is a working day.
The final administrative step is to publish a contract award notice in OJEU. This must be done within 48 days of the award of the contract.