In these questions and answers, we assume that the procurement is regulated by the Public Contracts Regulations 2006.
When is it more appropriate to use "lowest price" as an award criterion rather than "most economically advantageous tender"?
For simple public contracts where price per unit is the only real factor that distinguishes one bid from another, meeting the relevant minimum quality requirements (eg, a contract for the supply of 1,000 pens per month).
What does "most economically advantageous tender" mean and must it take into account the prices offered?
The legislation allows contracting authorities a great deal of discretion to decide what factors to take into account when assessing the most economically advantageous tender. Examples given in the legislation relate to the qualities and value of what is offered, as seen from the contracting authority’s point of view, and the cost of acquiring it for example in terms of price, after sales service, running and disposal costs. As such, relative prices do not have to be the sole factor taken into account. However, case law has established that it is important that some assessment of the relative prices of bids takes place and that "price is the starting point of the exercise" to which other considerations (such as those listed as examples above) are added.
We published a few award criteria and their percentage weightings in the contract documents. We now want to add more detail. Is there any problem with this approach?
There is various case law which makes it clear that contracting authorities must disclose in advance and in full all award criteria and sub-criteria together with weightings and sub-weightings. Failure to do so exposes the contracting authority to serious risk of challenge from bidders. You should therefore disclose the additional detail as soon as possible to all bidders, and consider if the bidders will need additional time to factor it into their bid.
If one of the prices from a bidder appears to be abnormally low, can we reject it without taking further action?
You can either accept or reject an abnormally low tender. However, such a bid cannot be rejected out of hand. First the contracting authority must ask the bidder, in writing, to explain the relevant calculations/characteristics in detail. You may take into account any explanation given regarding such matters as the economics of the manufacturing process, the technical solutions chosen, favourable conditions relevant to that particular bidder and/or the originality of the bid.
One of the bids we've received doesn't meet a requirement we described as "mandatory" in the specification. Must we reject this bid?
If the requirement was clearly stated to be mandatory, the bid should be rejected. It is useful to confirm in the tender documents what is meant by "mandatory" and the consequences of a bidder failing to meet a mandatory requirement. If the tender documents use language along the lines of "may be rejected" then there may be some discretion for the contracting authority to consider the bid. However, it is preferable to factor such requirements into the evaluation if they are not actually mandatory.
One of the bids is late – do we have to reject it?
It depends. In order to be fair to all bidders, if a deadline has been clearly stated and there is no good reason for a bid being delayed, you should reject a late bid. In exceptional circumstances, it may be appropriate to consider late bids, eg, widespread power cuts. This will typically be as a result of circumstances which are wholly outside the control of the delayed bidder.
We are trying to evaluate one of the bids, but certain aspects of it are not clear. Can we contact the bidder and ask him to explain further?
It is acceptable to seek "clarifications" but care must be taken in discussions with this bidder that nothing is done which is non-transparent or which prejudices the other bidders. Care must also be taken that "clarification" does not merge into "negotiation" (which is not permitted in the open/restricted procedures), and to ensure that the "clarification" process is not giving the bidder an opportunity to supplement their bid.
Should we have a moderation process?
It is up to contracting authorities to determine an appropriate evaluation process, but moderation of evaluation is a common way of attempting to ensure that the results are robust. Generally moderators will check the findings of evaluators and make rulings where there is disagreement between evaluators.
Can we meet the bidders as part of the evaluation?
Yes, if you have made clear in the procurement documents that such a meeting will form part of the process. You should also be clear how the meeting will impact on the evaluation process.
Can we ask one bidder to change their bid to include something another bidder has submitted?
In general, no. Regulation 43 requires contracting authorities to keep confidential the confidential aspects of each bidder's tender and informing the leading bidder of another bidder’s commercial solution will almost certainly breach this requirement unless specific permission for the relevant disclosure has been sought. In any event, allowing a bidder to amend their bid at a late stage is likely to be a breach of the principles of transparency and equal treatment. Within the competitive dialogue procedure, it may be permissible to share elements of one bidder's solution with another bidder if this has been agreed at the start of the dialogue – the invitation to dialogue should address issues around confidentiality and any circumstances in which the contracting authority would want to share some of the content of one bid with other bidders.
Can we look at the bids once received and then choose a couple of the best bidders to invite to participate in a site visit/presentation?
In the open or restricted procedure, this is not permitted. There is a risk of challenge on the basis that this would prejudice the interests of the other bidders that are not invited to participate – they could well argue that their bid would have won had they had the opportunity to participate in a site visit or presentation. Note that, in the restricted procedure, a site visit would generally be carried out at the PQQ stage, rather than at the ITT stage, as it typically forms part of assessing supplier capability.
Can we go back to the bidder and negotiate on price?
In the open or restricted procedure, no, as it is not permitted to negotiate on any aspects of the tender following receipt of bids.
After the bid deadline, we’ve realised that we need to amend the specification that was originally advertised. Is it possible to do this?
If the amendment is simply a tweak and unlikely to have encouraged other bidders to bid had the amendment been included at the start of the process, then this may well be possible (although it is not specifically provided for in the procurement Regulations). You would need to send the amended specification to all bidders and set a reasonable new deadline for the submission of re-bids on the basis of the new specification.
If, however, the amendment is material, there is a significant risk in making the changes as other suppliers may have been interested in bidding.
The deadline for bids has passed, but a couple of the bidders have since contacted us and asked to amend their bids. Can we allow them to do this?
No. There is a significant risk of challenge from bidders that did not need to amend their bids, particularly if the amendments make a material difference to the outcome.
One of the bidders has been involved in a previous procurement process with us and helped us draft up the specification. Is there a potential problem here?
Yes, if one of the other bidders could demonstrate that this gave rise to an unfair advantage. If a bidder (such as an incumbent) needs to be involved in preparing a specification, it is worth looking at what steps can be taken to mitigate the impact of this – eg, requiring the relevant individual to sign a confidentiality agreement and not to participate in that supplier's bid team.
Can we use bidder references obtained at PQQ stage as part of our evaluation at award stage?
Generally speaking, the rule is that selection and award criteria must be kept separate. It is not appropriate, for example, to evaluate things such as financial standing and professional membership at award stage, as these pertain to the standing of the bidder rather than to the contract being let. However, recent case law has suggested that, provided information obtained at selection stage is used at award stage as a way of evaluating the tender and the bidder's ability to perform that particular contract, this may be acceptable. Nonetheless this is a legally difficult area and the safest course is to always exclude from the evaluation information that was obtained as part of the pre-selection phase.