Procurement pitfalls

With that in mind: what are common procurement pitfalls and how can you identify a prospective challenge? Read on to find out…

Common pitfalls

Throughout a procurement process, the core principles under the Public Contracts Regulations 2015 (‘PCR 2015’), namely transparency, proportionality, and equal treatment between bidders, must be complied with.

Common areas for challenge, and how they might be avoided, are set out below.

1. Tender documentation

The tender documentation should objectively set out how bids will be assessed. In particular: –

• Distinctions between scores/grades in the scoring methodology should be clear, e.g. include a description, which is sufficiently short to allow flexibility.
• There should be clarity in respect of word limits, submission requirements and the evaluation methodology that will be carried out.
• All criteria and sub-criteria for evaluations should be published.

2. Evaluation of bids

Top tips for ensuring robust evaluation are: –

• Evaluators should be checked for any conflicts of interest and provided with adequate training.
• Evaluations should be undertaken strictly and consistently in accordance with the award criteria and scoring methodology.
• Knowledge of bidders or incumbent performance should not be considered.
• Records should be made of scores and reasoning, including how award criteria and scoring methodology was applied. Similarly, bidder feedback should be objectively clear, and consistent with the tender documents.

3. Moderation of scores

Moderations should include discussion of evaluators’ scores and reasonings, followed by dialogue to agree moderated scores. Considerations include: –

• No one evaluator should be allowed to have ‘undue influence’; an impartial chair to facilitate discussions (without expressing opinions) may help.
• Rationales for moderated scores should be agreed and recorded. These shouldn’t copy-and-paste evaluators’ original reasonings, as the moderated score and/or rationale may be different.
• If concerns arise after moderation, the panel should be reconvened for further discussion, with moderated scores either confirmed or changed. Amended score(s) and rationale(s) must be agreed and recorded and fully signed off by evaluators and the moderator.

Reacting to a prospective challenge

Bidders may not state that they are considering proceedings. Therefore, authorities should try to identify warning signs in correspondence, e.g. references to “escalation” if no satisfactory reply is received, or that they have/are seeking (legal) advice.

If a prospective challenge is identified, Authorities should consider whether there could be merit to the concerns raised and if corrective action should be taken to resolve matters (which must comply with the PCR 2015). If there appear to be low merits, then a robust approach may see off the claim. Obtaining early legal advice is important to support this assessment.

There are very short timescales for legal proceedings to be issued, namely 30 days from and including the date on which the bidder knew or ought to have known grounds for challenge had arisen (or 30 days from the date of the contract award notice with a longstop of six months from date of contract, for a claim of ineffectiveness). Initial concerns can therefore quickly escalate with little warning.

In any event, all documentation from the procurement should be preserved. There should also be a clear understanding of the detail and timeline of the evaluation and moderation processes, with documents to evidence them.

Due to the timescales and potential consequences, authorities should seek legal advice as soon as they are aware of a risk of proceedings being issued.

If you would like to find out more information or advice on the issues involved in procurement challenges, please contact Amy Callahan-Page.

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