Publishing notices – Increasing awareness
There is now a requirement to publish all tender opportunities above £25,000 on Contracts Finder (https://www.gov.uk/contracts-finder) and buyers need to be registered on the site to allow this publication to happen. Of course, for suppliers, this is a really good thing. Access to opportunities below OJEU threshold that may have traditionally only had to comply with internal standing orders. The question remains though – how will buyers manage the potential increase in tender returns and how many will remember to list all opportunities? (Eeeeeek! Post blog note – this is now considered incorrect – please see here for more information!)
Another minor issue at the moment is the fact that the speed of UK implementation means that the current Contract Notices don’t fully align with the requirements of the procedures that can be used to procure under the regulations. Again, Crown Commercial Service (CCS) have tried to provide guidance on which existing contract notice should be used until such times as the new notices are available.
Commencing the procurement – to PQQ or not to PQQ
There is clear guidance around use of Pre Qualification Questionnaires (PQQ). Regulation 111 effectively bans a “selection” stage for below threshold contracts. Cabinet Office has again set out guidance around how this works in practice and it is certainly worth a look to ensure that you are on the right track. The critical statement made is as follows:-
“A Contracting Authority may not include a pre-qualification stage in any procurement where the value of the procurement is below the EU threshold for goods and services”
They do however accept that you may need to use a “suitability assessment questionnaire” so long as the questions are relevant & proportionate. After all, surely there is still a requirement to ensure that the applicants are actually part of a sustainable and compliant business?
On the subject of compliance, where a PQQ is to be used, there are new mandatory and discretionary exclusions that need to be included within the questionnaire. Additionally, we have been told that we must not deviate from the standard Cabinet Office PQQ – the wording is strong and buyers are told in no uncertain terms that ‘deviations’ must be signed off via a dedicated mystery shopper e-mail address. No pressure everyone!
Availability of procurement documentation
Regulation 53 sets out that ‘procurement documentation’ must be available immediately. This is very different for many buyers and it will be interesting to see how this works out practically. It’s certainly not something that can be set out here without a little debate.
How long is long enough?
There has been a change in timescales – not unsurprising when we were told repeatedly that the UK had one of the worst rates for time taken to procure! Here are the key points for open and restricted:-
|Open||ITT||35 days||30 days||15 days|
|Restricted||PQQ||30 days||15 days|
|ITT||30 days||25 days||10 days|
- Below threshold = No PQQ
- No immediate access to tender documents = Add 5 days
- “ITT Stage” can be reduced if all tenderers agree
A little like a game of snakes and ladders and so I would keep a handy guide next to my desk! For the other procedures, it is always best to refer to most up to date Cabinet Office guidance.
As always, you have a responsibility to evaluate tenderers responses in line with the evaluation methodology set out within the tender documentation. However, unlike the previous regulations, there is an explicit ability to deal with ’Irregular’ tenders.
“Regulation 26(5) states Tenders:-
- Which do not comply with the procurement documents
- Which were received late
- Where there is evidence of collusion or corruption, or
- Which have been found by the contracting authority to be abnormally low, shall be considered irregular”
It would therefore be sensible to make reference to this within tender documentation so that during evaluation, if a tender is considered to be irregular for any of the reasons set out above, you have already provided a description of reasons that may lead to exclusion of a tender.
There have been a number of changes that will affect the way that everyone conducts their procurement activities. There are some items that are still awaiting absolute clarity, and others that are just too lengthy to discuss here. Answers on a postcard……..