Evaluating the Tender
In these questions and answers, we assume that the procurement is regulated by the 2015 Regulations.
The 2015 Regulations state that the evaluation must now select the "most economically advantageous tender". However, the definition of "most economically advantageous tender" has now been expanded so that the most economically advantageous tender is to be identified on the basis of price/cost using a cost effectiveness approach, which may (but need not necessarily) include best price-quality ratio. For simple public contracts where price per unit is the only real factor that distinguishes one bid from another, it is still possible to use price alone to establish which is the most economically advantageous tender.
As discussed above, Regulation 67 now states that the "most economically advantageous tender" is that which, using a cost-effectiveness approach or price/quality ratio, offers the best price (this will not necessarily be the lowest price). 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 are added. It is now possible to use life cycle costing to assess cost over the entire life of the product/service/work, in accordance with Regulation 68.
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. The 2015 Regulations also state (at Regulations 67(9) to (11)) that relative weightings given to award criteria must be set out in the procurement documents, or, at the very least, criteria must be listed in descending order of importance. 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?
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. If the reason the tender is low is because it does not comply with EU environment/social or labour laws, it must be rejected (see Regulation 56(4)).
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.
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, e.g., 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.
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.
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 21 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 or innovation partnership procedures, 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.
In the open or restricted procedure, no, as it is not permitted to negotiate on any aspects of the tender following receipt of bids. In the competitive with negotiation process, negotiation is permitted up until submission of final bids (but not thereafter). In the competitive dialogue process, it is possible to negotiate with the winning bidder, but the safeguards at Regulation 30(20) must be observed (i.e. this must not modify essential aspects of the tender or the procurement, and must not amount to a distortion of competition).
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 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, and you would need to consider re-advertising.
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 – e.g., requiring the relevant individual to sign a confidentiality agreement and not to participate in that supplier's bid team. Under Regulation 41 there is a requirement to take appropriate measures to ensure that competition is not distorted by the involvement of this bidder. That said, you may only exclude the bidder if there is really no other method of ensuring equal treatment. To exclude the bidder out of hand runs the risk of inviting a procurement challenge from that bidder on the basis that you could have ensured equal treatment by other, less draconian, measures.
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 as they are aimed at evaluating different things. 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, 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. Also, Regulation 67(3)(b) now expressly states that you can evaluate at award stage the organisation, qualification and experience of the staff who are to perform the contract, where the quality of staff assigned would have a significant impact on performance (e.g. consultancy contracts). Nonetheless this is a legally difficult area and you should only consider using information obtained at PQQ stage in the evaluation if you are confident you can show you are using it to assess the quality of the bid for the specified requirements (as opposed to the standing of the bidder in general.)
The Procurement Portal aims to provide a "one stop shop" for procurement law queries and advice.
Click here to email our team with your query.
New public procurement e-learning tools
We have teamed up with BuiltIntelligence* to develop an e-learning tool and procurement webinar.
> Procurement e-learning: Remedies Directive
Designed to help you recognise key risk areas in the procurement life-cycle.
> New Public Contracts Regulations 2015 webinar
Are you struggling to get a handle on the Public Contracts Regulations 2015? If so, procurement experts Greg Gibson and Helen Prandy will guide you through the key changes in the new Regulations and provide practical answers to some of the tricky issues raised. The webinar is priced at £49 + VAT.
* Mills & Reeve LLP receives a share of the course fees from BuiltIntelligence to reflect our contribution to the course content.