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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 Stage

In the Q and As below we assume the procurement is regulated by the 2015 Regulations.
Is there a requirement to publish our ITT anywhere?
Yes. Under Regulation 53, there is a requirement to make the ITT available electronically from the date that the advertisement is sent to the Official Journal of the European Union (together with other procurement documents).
Disclosing your evaluation scheme at the ITT stage
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?

It is not possible to devise an evaluation scheme post-receipt of bids; this would breach transparency principles and expose the contracting authority to a serious risk of a procurement challenge. Regulation 54(4)(e), taken together with Regulations 67(9)-(11), requires the invitation to tender to include the relative weighting for the award criteria, or, if it is not possible to specify this for objective reasons, then at the very least an indication of the descending order of importance of the criteria should be provided. It is possible to express weightings of award criteria by providing for a range with an appropriate maximum spread. Best practice would be to include this information in the OJEU advertisement from the outset (although Regulation 54(4)(e) does appear to acknowledge that this may not be possible and that the award criteria weightings may instead be provided within the ITT).
Do we need to include full contract terms?
The "conditions of contract" fall within the definition of "procurement documents", which means that as far as possible these should have been made available electronically from the date of the OJEU advertisement. How "full" the contract terms need to be 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. In the procedures that involve negotiation (competitive with negotiation and competitive dialogue) this will of course not be possible but you should consider including heads of terms and an indication of the main points for negotiation, in order to meet the requirement to make "conditions of contract" electronically available from the date of the OJEU advertisement.
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. Note that the "technical specifications" falls within the definition of "procurement documents" and as such will need to be made available electronically from the date of the OJEU advertisement.
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 OJEU advertisement for the procurement are modified. Unless the modifications are not material, i.e., 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. Note that Regulation 47 requires the extension of time limits where there have been "significant changes to the procurement documents" (an amendment to a technical specification is likely to fall into this category unless it is very minor).
Use of product names in specifications during the tender stage
We like a product that we're already using. Can we ask bidders to bid to supply this 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.
Responding to questions about the ITT documentation
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.

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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.