Is it possible to get a link to the framework you mention?

We have assumed that this is a request for links to the standard form contracts which were discussed in Question 1 of the webinar. If helpful, a copy of the CCS Model Services Contract can be found here and a copy of the CCS Public Sector Contract can be found here .

How do you deal with stakeholders presenting a quotation which they want to pursue to place an order but, within the quotation, the supplier’s terms and conditions are quoted as the basis for acceptance of the quotation?

Assuming the authority conducted a procurement process, that the supplier you refer to is the successful bidder and as part of that procurement process a form of contract was issued by the authority, we would suggest that you check the procurement documents to determine whether the supplier proposing an alternative form of contract could result in exclusion. If this is the case (and assuming it was not explicitly stated that this would lead to exclusion), we would suggest responding to the successful bidder to ask for express confirmation that it accepts the form of contract issued by the authority as part of the procurement process (providing a deadline for this) or the authority will withdraw the award decision. If a procurement process was not undertaken (eg, the contract value is below threshold or an exemption applied) and your preference is to use the authority’s terms for the purchase, we would suggest that you ask the supplier to sign the authority’s form of contract which should include an express provision that this represents the entire agreement between the parties to the exclusion of any other terms.

As a contracting authority, do we need to insist on seeing a signed framework agreement?

We have assumed that your query relates to a scenario where the authority is calling off from a framework agreement which is managed by another public body. You would not necessarily need to see a full signed copy of the framework agreement in question in this scenario, albeit you may need to review parts of this (eg, the pricing schedules to check that the supplier’s prices align with its framework pricing). The authority should, however, obtain a copy of the form of framework agreement (not necessarily a signed copy) and any associated published guidance to consider its terms and any rules concerning the call-off procedure and form of contract. For example, some framework agreements contain specific rules on the duration of call-off contracts and limitations on price increases. These provisions would need to be checked to ensure that the call-off contract is compliant with the terms of the relevant framework agreement.

What is your view on ITT setting just a few key contracting principles but otherwise accepting to contract on supplier terms?

We have addressed this issue in Question 5 of the webinar – a recording of which is available above.

How (realistically!) could you score contract amendments by bidders? I have tried this approach in the past and it invariably opens up a can of worms of subjectivity!

It can be challenging to design a transparent scoring methodology for contract amendments. However, the most common mechanism we see is to assess contract mark-ups on the basis of the extent of the risk that is transferred to the authority via the bidder’s markup. For example, the more risk that is transferred to the authority, the lower the score. Similarly, the highest score is typically given where bidders do not propose any amendments. It may also be prudent to include a right for an authority to reject a tender that includes unduly onerous contract amendments.

Is it possible to consider contract amendments as part of the clarifications process? And then publish any accepted amendments (clarifications) to all participants?

Assuming bidders have asked for certain changes to the contract via the clarifications process, the authority could, in principle, issue an updated version of the contract document based on the changes requested. Note that this would generally need to be the same form of contract for all bidders in the process (to ensure equal treatment) and the authority should consider carefully whether making those changes could be viewed as bias towards a particular bidder. Depending on the nature of the changes, it may also be necessary to allow all bidders an extension of time to consider the impact of the changes on their bids.

Can the binding obligation to deliver promises by the supplier be met by including the bidder’s tender submission as an appendix to the contract?

Yes, but in order for this to work as intended we would also recommend that there is a provision within the contract itself which states that the supplier shall deliver the goods/services in accordance with the specification and the supplier’s tender submission (you may then wish to consider which order of precedence applies between these two documents if there is a conflict).

Is there an example of a social value schedule, eg, in the CCS contracts?

There is no standard format for this. Usually this is a plan developed by bidders that explains how they will implement their social value commitments during the lifetime of the contract. The Social Value Model does, however, contain a list of suggested KPIs that could be used to monitor the supplier’s performance in terms of social value.

If a contract has been let with VAT being irrecoverable, and a variation is required where the VAT is recoverable – is that possible?

We would need to have further information about the scenario in question to advise here, as this will likely require a modification to the contract. Contract modifications are only permitted where they meet one or more of the grounds set out in Regulation 72 of the Public Contracts Regulations 2015. Do contact us if it would be helpful to provide further advice here.

Public procurement: preparing a public contract

Our procurement lawyers focus on preparing a public contract in this recorded webinar from Mills & Reeve's Five in Twenty Five series.

Below you can watch a video recording and read some questions and answers from the webinar.

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Our collection of webinars where our procurement experts address public procurement in the UK, focussing on topics that those working with public procurement need to consider.

Key questions and answers

A number of questions were raised during the session, which we have anonymised and answered below. In this note, “PCR 2015” refers to the Public Contracts Regulations 2015, as amended and references to numbered regulations are to the PCR 2015.

Please note that the responses provided represent the general views of the public procurement team at Mills & Reeve, however they should not be relied on or treated as a substitute for specific advice relevant to a particular scenario/matter. If you require specific legal advice, our procurement team would be happy to discuss this further with you.

Is it possible to get a link to the framework you mention?

We have assumed that this is a request for links to the standard form contracts which were discussed in Question 1 of the webinar. If helpful, a copy of the CCS Model Services Contract can be found here and a copy of the CCS Public Sector Contract can be found here.
How do you deal with stakeholders presenting a quotation which they want to pursue to place an order but, within the quotation, the supplier’s terms and conditions are quoted as the basis for acceptance of the quotation?

Assuming the authority conducted a procurement process, that the supplier you refer to is the successful bidder and as part of that procurement process a form of contract was issued by the authority, we would suggest that you check the procurement documents to determine whether the supplier proposing an alternative form of contract could result in exclusion. If this is the case (and assuming it was not explicitly stated that this would lead to exclusion), we would suggest responding to the successful bidder to ask for express confirmation that it accepts the form of contract issued by the authority as part of the procurement process (providing a deadline for this) or the authority will withdraw the award decision. If a procurement process was not undertaken (eg, the contract value is below threshold or an exemption applied) and your preference is to use the authority’s terms for the purchase, we would suggest that you ask the supplier to sign the authority’s form of contract which should include an express provision that this represents the entire agreement between the parties to the exclusion of any other terms.
As a contracting authority, do we need to insist on seeing a signed framework agreement?

We have assumed that your query relates to a scenario where the authority is calling off from a framework agreement which is managed by another public body. You would not necessarily need to see a full signed copy of the framework agreement in question in this scenario, albeit you may need to review parts of this (eg, the pricing schedules to check that the supplier’s prices align with its framework pricing). The authority should, however, obtain a copy of the form of framework agreement (not necessarily a signed copy) and any associated published guidance to consider its terms and any rules concerning the call-off procedure and form of contract. For example, some framework agreements contain specific rules on the duration of call-off contracts and limitations on price increases. These provisions would need to be checked to ensure that the call-off contract is compliant with the terms of the relevant framework agreement.
What is your view on ITT setting just a few key contracting principles but otherwise accepting to contract on supplier terms?

We have addressed this issue in Question 5 of the webinar – a recording of which is available above.
How (realistically!) could you score contract amendments by bidders? I have tried this approach in the past and it invariably opens up a can of worms of subjectivity!

It can be challenging to design a transparent scoring methodology for contract amendments. However, the most common mechanism we see is to assess contract mark-ups on the basis of the extent of the risk that is transferred to the authority via the bidder’s markup. For example, the more risk that is transferred to the authority, the lower the score. Similarly, the highest score is typically given where bidders do not propose any amendments. It may also be prudent to include a right for an authority to reject a tender that includes unduly onerous contract amendments.
Is it possible to consider contract amendments as part of the clarifications process? And then publish any accepted amendments (clarifications) to all participants?

Assuming bidders have asked for certain changes to the contract via the clarifications process, the authority could, in principle, issue an updated version of the contract document based on the changes requested. Note that this would generally need to be the same form of contract for all bidders in the process (to ensure equal treatment) and the authority should consider carefully whether making those changes could be viewed as bias towards a particular bidder. Depending on the nature of the changes, it may also be necessary to allow all bidders an extension of time to consider the impact of the changes on their bids.
Can the binding obligation to deliver promises by the supplier be met by including the bidder’s tender submission as an appendix to the contract?

Yes, but in order for this to work as intended we would also recommend that there is a provision within the contract itself which states that the supplier shall deliver the goods/services in accordance with the specification and the supplier’s tender submission (you may then wish to consider which order of precedence applies between these two documents if there is a conflict).
Is there an example of a social value schedule, eg, in the CCS contracts?

There is no standard format for this. Usually this is a plan developed by bidders that explains how they will implement their social value commitments during the lifetime of the contract. The Social Value Model does, however, contain a list of suggested KPIs that could be used to monitor the supplier’s performance in terms of social value.
If a contract has been let with VAT being irrecoverable, and a variation is required where the VAT is recoverable – is that possible?

We would need to have further information about the scenario in question to advise here, as this will likely require a modification to the contract. Contract modifications are only permitted where they meet one or more of the grounds set out in Regulation 72 of the Public Contracts Regulations 2015. Do contact us if it would be helpful to provide further advice here.

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