It is important to be aware of procurement laws to keep procurement processes compliant and minimise the risk of a legal challenge. Challenges to a procurement process can significantly delay or prevent the award of a contract, with serious financial and organisational difficulties for the contracting authority.
Our specialist and dedicated procurement team has put together a list of procurement tips to bear in mind when conducting a procurement process.
Top 10 procurement tips
1. Consider a market consultation
The new procurement directives specifically allow market consultations. They can be helpful in finding out about the number and type of tenderers who may be interested in the opportunity and can assist in formulating the selection criteria. If conducting a market consultation, ensure potential tenderers are given the same opportunities and access to the same information. Companies involved in the market consultation should not have an advantage over other tenderers.
2. Do not rush the process unless there is a genuine emergency!
Time spent planning and reviewing documents at the start usually means less delay during the process and less likelihood of a challenge. Allow sufficient time for the return of tenders and the evaluation process and ensure adequate time is allocated for holidays, verification of suitability and contingencies.
3. Be open and transparent
Draft tender documents clearly and unambiguously. Allow tenderers to understand what you want, what you are going to do and how you are going to do it. Then do what you said you were going to do. Make clear which requirements are mandatory and ensure that pass/fail criteria are clearly defined so that it is clear what constitutes a pass or fail. Take particular care when relaxing or changing requirements or when exercising a discretion, for example allowing one tenderer to clarify its tender but not others.
4. Be objective and ensure equal treatment of tenderers
Make sure that all potential tenderers are treated (and are seen to be treated) fairly and that there is no favouritism. Take particular care during interviews and site visits and consider in advance what you want to get out of them and how they will be evaluated. Ensure the evaluation team has the necessary expertise and resources and there are no conflicts of interest.
5. Work out first what you would like to get out of the process and then work backwards
When drawing up the quality criteria, consider first what you would like to see in the answers and then draft your questions accordingly. Don’t be too prescriptive in how the work will be delivered but focus on outcomes. Ensure selection criteria are proportionate and relevant and that there are no overlaps between evaluation criteria. Have your documents reviewed by a fresh pair of eyes before issue to ensure there are no ambiguities or inconsistencies.
6. Consider how to achieve best value for money
Consider different potential pricing mechanisms, eg lump sums, schedule of rates, discounts (eg for package bids), profit sharing, performance incentives and how these will work if changes to the contract occur. Test your price / quality model to make sure it achieves the desired outcome.
7. Consider potential contract modifications required during the term of the contract
Eg extension of term, change in scope of works/services, improvements in technology, price adjustments. Provide for these potential modifications in the contract as clearly and precisely as possible. Substantial modifications to a contract are only allowed in limited circumstances. If a modification is not lawful, then a new procurement process is required.
8. Community clearly with tenderers throughout the process
If there are any changes in the requirements, make sure these are communicated clearly to all tenderers. Take particular care when notifying unsuccessful tenderers and make sure that the debrief letter allows tenderers to learn why they were not successful. Avoid general statements and ensure that debriefs are bespoke for each tenderer.
9. Ensure that the whole process is documented
Contemporaneous records should be kept throughout the procurement process, including notes of any discussions or meetings with tenderers and any conversations regarding the evaluation of tenders. Make sure clear and consistent reasons are given for awarding or modifying a score and for any other procedurally important decisions. In the event of a later query or challenge, a clear audit trail of the decision making process will assist in explaining how evaluations were undertaken and decisions reached.
10. Obligations don’t end with the award of the contract
Where possible, take time at the end of the process to sit down with the team to discuss any potential improvements to the process. Contract managers should be involved in the procurement process from the outset and should be aware of the procurement law obligations, particularly the limited circumstances in which contract modifications are permissible. Contract sanctions for poor performance should be considered to allow for the possibility of excluding poor performers from future procurements.
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