State Aid? State What?!

Do you need to think
about State Aid risk on
your procurement project?

Make sure you know what
to look out for with our
handy new guide
from our state aid experts.

Looking to challenge a procurement decision?

Suppliers wishing to challenge have only a short time frame in which to act. Click here for our useful guide.

Which Regulations do you need?

To get up to speed with the various new procurement law regulations, please click below;

> Concession Contracts Regulations 2016 

> Utilities Contracts Regulations 2016

> Public Contracts Regulations 2015 

If you're not sure which regulations apply, click here.

Invitation to tender (ITT)

In these questions and answers, we assume that the procurement is regulated by the Public Contracts Regulations 2006.

Is there a requirement to publish our ITT anywhere?

If your organisation is part of central government (including departments, their agents, agencies, all non-departmental public bodies, trading funds and National Health Service bodies) and the value of the contract is over £10,000, then the contract will be subject to the Government's new transparency regime. Among other things, this requires tender documents (ie, the OJEU advert, the PQQ, the ITT) to be published on a "Contracts Finder" portal at the appropriate stage of your procurement process. Please see our section on questions and answers relating to transparency for more information.

How much of our evaluation scheme must we disclose at the ITT stage? Does it matter if we have not yet worked out the details?

There is a growing body of case law that requires contracting authorities to 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 aggrieved bidders.

Do we need to include full contract terms when we send out the ITT?

It depends on which procedure you are using. For the open and restricted procedures, full terms and conditions are required in order that bidders can submit a complete and final bid based on them without further negotiation post receipt of tenders.

How much detail do we need to include in a specification?

You should include as much detail as is needed to allow bidders to respond to your requirements. If you have requirements which must be met, these need to be described in full in the specification. Details of any technical or other standards which must be met should be included.

Can we amend a specification once issued?

The Regulations do not specifically address when changes to a specification can be made. The overriding issue is the general principle of equal treatment of bidders and the question which arises is how far back through the award procedure you need to go to ensure nobody is disadvantaged. In some cases it might suffice to inform the bidders of the change and potentially provide them with additional time to respond, in other cases it might be necessary to restart the procurement. In particular, care should be taken where elements of the specification referred to in the contract notice for the procurement are modified. Unless the modifications are not material, ie, the change would have no impact on the number or type of providers responding to the advertisement, the requirement would need to be re-advertised in a new OJEU notice. Additional care should also be taken if the suggestion for a change came from one of the bidders.

We particularly like a product we are using already. Can we ask bidders to bid to supply this particular product only?

No. In general, use of product names in specifications should be avoided. The Regulations allow the use of trade names and marks in the specification of requirements only where this is necessary to adequately specify the requirement. However, wherever a trade mark is used, the phrase "or equivalent" must be added. This principle of "equivalence" means that the contracting authorities must accept bids for alternative products which nonetheless meet their specification. If a contracting authority is keen to avoid, eg, the need to retrain staff in a new but similar system, the way to address this is via the award criteria, and how the costs of implementation and transition to the new system are assessed.

One of the bidders contacts us to ask a question about the ITT documentation. Can we respond and if so how should we manage the response?

The key point here is to ensure that no bidder is treated more favourably than another. The safest course would be to circulate to all bidders details of bidder questions asked (anonymised as necessary) and the responses provided by the contracting authority. Generally, contracting authorities will want to confirm that they are intending to do this in the tender documents.

Can we change the date for receipt of bids before the ITT return date?

It would generally be acceptable to extend the time given to all suppliers to submit their bids, provided that there is an objectively justifiable reason for the extension and that all bidders are informed in time for them to take the new timing into account. If any bids have already been received at the time the extension is granted, those bidders should be offered an opportunity to re-submit their bids.

Contact Us

The Procurement Portal aims to provide a "one stop shop" for procurement law queries and advice.

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Found the answer to your question?

We have tried to list some of the most commonly asked questions about the procurement process, but we welcome your feedback - if your question isn't included, please get in touch.