Key questions and answers
Please note that although the information in our our 5 in 25 webinars and FAQs was correct at the date of recording, this is an area of law subject to development and change.
Do check if in doubt as to the latest position - you can email [email protected].
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.
FAQs
- Do you know if CCS/CG have advised how the central supplier register will link to individual tendering systems (intend, delta, etc) to ensure suppliers are only having to register once?
We understand that the government are working with e-tendering systems to ensure this integration. - Is it mandatory for every supplier to be registered on the Central Digital Platform?
The position under the draft regulations at present is that it is the responsibility of the authority to ensure that all suppliers, who wish to take part in a particular procurement, are registered and have uploaded their core supplier information.
- Can you please touch on the element that, when designing a competitive flexible process, suppliers must be able to state their case before being removed from the tender. When would this conversation happen as part of the tender process?
This would be part of the procurement where the selection criteria (SQ) were assessed. In an open process it would be the first part of the evaluation. In a restricted or other multistage process, the selection phase will be a separate stage in itself, prior to suppliers being invited to tender. Following an assessment of the selection criteria the authority will notify the supplier that it appears to have failed an exclusion criterion – and at that point is required by section 58(2) to give the supplier a chance to make “representations” to explain why the “mischief” is no longer continuing/unlikely to reoccur. The final decision is with the authority.
- Is it possible to reserve additional marks in an ITT evaluation stage for shortlisted suppliers only if clearly outlined in Tender instructions? For example, to allow a detailed evaluation of physical IT hardware that we would only want to undertake with shortlisted suppliers to save time and cost for both suppliers and buyers.
If you are running an open process, under the Act, as now, there will be no deselection phase and therefore no shortlist; all suppliers which pass the selection stage should have their tenders evaluated in the same way. If you want to limit the number of detailed evaluations that you need to do, then using a competitive flexible process with a deselection phase would be more appropriate – which will allow you to create a shortlist of suppliers. It is always important, in multi-stage procurements, to be clear and transparent about the evaluation criteria at each stage. - Is it possible to negotiate the price or any other aspects of the bid with the top scoring bidder?
At present it is only possible to continue to negotiate with the preferred bidder in a competitive dialogue process. However, the competitive flexible process (CFP) will allow you design a process in whatever way can be shown to be suitable, proportionate and compliant with the general objectives and principles. Subject that that (and to the fact that we are awaiting guidance and further details in the regulations), at present there is nothing explicit in the legislation to say that a CFP could not provide for negotiation with the winning bidder. As currently, under the Act it will not be possible to negotiate with the winning bidder to such an extent that the contract award decision is actively undermined. - I believe that under PCR 2015 relating to post tender negotiation meetings, we need to state the intention to meet suppliers that score "over x%". Under the new flexible process can we now state we will meet the top scoring suppliers and not stipulate a % score for those we will meet?Presumably this question is referring to post-initial tender negotiations under one of the competitive processes (since negotiations are not permitted in the open/restricted processes). There is nothing in the PCR 2015 that specifically requires you to state an intention to meet suppliers that score “over x%”; although presumably this approach is used to demonstrate objectivity and transparency.
Using a CFP, there is flexibility to design the process as you see fit, however there is still a requirement to be proportionate, transparent, and objective. It will be necessary to test whether meeting “top scoring suppliers” (and not specifying how you will decide what amounts to a top score) meets the transparency standards needed. - "encouraging SME's..." - Is this as per the PCR 2015 where we tender and try to encourage SME bidding, but you cannot specifically require that the bidders are SMEs?
Agreed; if the procurement documents were to state that only SMEs were permitted to tender, then this would be an equal treatment problem under the Act (as currently under the PCR 2015). However, there are other features of the Act which do operate to encourage SMEs, for example, the requirement to divide requirements into smaller lots where this is appropriate. - As part of MAT, taking the equal treatment 'challenge' into mind, is there a 'legal' way to fairly evaluate 'local suppliers' – i.e. from your city or county.
The analysis here would vary widely from procurement to procurement and would depend so closely on the requirements that it is not possible to generalise. Whether this approach would be lawful would require careful consideration of the requirements of the contract. - MEAT vs MAT: Example scenario – I am tendering a framework for Waste Collection Services where the customers will be dotted around the North of England. When tendering the framework, I won’t know which customers will use the services, and I’d expect those customers located the closest to the supplier’s premises would attract cheaper pricing, as the waste collection lorries will have to travel a shorter distance to and from the customer. Can I award my framework under an Assessment Methodology that is only 100% Quality?
You could, however the customers would be under a duty to have regard to the objective of delivering value for money and maximising public benefit. If the absence of any price criterion meant that local waste collection services under this framework were not cheaper than services located further afield, the framework may not be attractive to customers (who could secure cheaper prices through running their own procurement where price is evaluated).
- Is there more flexibility in framework further competitions vs PCR 2015?
We are waiting for detailed guidance on frameworks, but the position under the Act, appears similar to that under the PCR 2015.Section 45 provides that direct awards may still be made provided that the core terms of the call off contract are set out, and there is some objective way to select the supplier to be awarded the contract.
Section 46 of the Act covers mini-competitions (called “competitive selection processes” under the Act) and permits their use to assess tenders – and states that this must be by reference to one or more of the award criteria against which tenders were assessed in awarding the framework. There is confirmation that it is possible for the award criteria to be “refined” when conducting the mini-competition; as now, this is likely to mean that the criteria can be developed, but not fundamentally changed. These rules do not apply to minicompetitions for light touch regime contracts, so there will certainly be more flexibility here. If you are interested in learning more about frameworks under the Act do sign up for our next 5 in 25 webinar on this topic (which is on 25 April 2024 at 1000).
- Under section 31 of the Act, if I modify the procurement before the tender deadline of an Open Procedure, do I need to publish a new Contract Notice?
Section 31(5) says that in this case you must “revise and republish or provide again the tender notice and any associated tender documents affected by the modifications or time limit revisions”. There is not a specific type of notice for this eventuality, it sounds as if this involves republishing and updating the original Tender Notice (the new name for a Contract Notice).
- Will all tenders require a standstill period?
No – see section 51 which makes it clear that no standstill period is needed for (1) call-off contracts under a framework or dynamic market, (2) light touch regime contracts, and (3) contracts directly awarded under the section 41 provisions that permit direct awards to protect life or in the case of extreme urgency. There is of course also no need to hold a standstill period for a below-threshold contract. - Is there guidance on whether the standstill period begins after the contract award notice has been published or at the point that the assessment summaries have been sent to bidders?
Assuming that the current position in the draft regulations becomes final, the Contract Award Notice will contain a box to tick to confirm that assessment summaries have been sent to tenderers. Provided this has happened, and the box is ticked, then this should be a valid Contract Award Notice which operates to commence the standstill period (which begins on the day after the Contract Award Notice is published). - Where will the Contract Award Notice be published?
All notices will be published to a new central platform which will deal with notices, supplier registration and supplier information. - What day does standstill notice start?
On the date following the date of publication of a valid Contract Award Notice.
- Are contracting authorities to issue the assessment summaries and Contract Award Notices on the same day?
We understand from the draft regulations that the Contract Award Notice will include a box that must be ticked to confirm that assessment summaries have been sent to tenderers. We will need to check with this remains the position once the regulations are finalised (expected end of March 2024). - Will a standard assessment summary template be provided?
It is possible that this kind of document may be provided as part of the guidance on the new Act. - As part of the assessment summaries; will both the winning bidder and the losing bidder receive a summary of scores and evaluation summary notes for both parties?
Unsuccessful bidders will receive their own set of scores and the parallel set of scores for the successful bidder. The successful bidder will receive only its own set of scores. - What do you mean by a “strand”?
The draft regulations require, “where a criterion is arranged into different strands for assessment, an explanation of how the tender was assessed against each of those different strands”. Our understanding of this at present is that a “strand” is a constituent part of a scoring matrix for each score.
For example, if to score a “5” (“Excellent”) the bid needs to (a) meet all requirements AND add value; (b) provide full confidence to the authority with no reservations; and (c) contain no gaps – then our view at present is that each of (a) to (c) is a “strand”. We expect there will be guidance on this point. - Does assessment summary apply to the under-threshold tenders?
No, as there is no requirement to hold a standstill period for under-threshold tenders. - In the draft regulations, regulation 21 on Assessment Summaries requires disclosure of the reasons for the score against each award criterion. Where we have software tenders with 300, 400 individual scored requirements, do you foresee that scores for each of these requirements will need to be disclosed to unsuccessful bidders?
The requirement is to disclose the score against each criterion, not against each scored requirement; could these 3/400 scored requirements can be grouped by criterion? If so, presumably a grouped score against that criterion would be sufficient. If each scored requirement is itself a separate criterion, then on the face of it, scores for each would need to be disclosed. This is an area where we may benefit from guidance in the coming months. - Where can the detailed list of assessment summary criteria be found?
At present, in the draft regulations at draft regulation 21. We are expecting the draft regulations to be finalised as the Procurement Regulations 2024 by the end of March; it is possible that the draft requirements may be further developed/revised. - Will the assessment summary apply to mini competitions under frameworks?
There is no obligation to hold a standstill period for call-off contracts under frameworks – so, no. However, if you chose to hold a standstill period you would of course need to prepare the assessment summaries as part of that process. - Is it mandatory to publish bidders price scoring in the assessment summary?
Assuming that price is a criterion, then yes, as scores against each criterion are required. This will be subject to the general requirement to keep information that bidders have designated as confidential, confidential. - Is there a set number of days the assessment summary should be sent out for?
The assessment summary must be sent to bidders before you are able to publish the Contract Award Notice (as part of which you must tick a box to show that the assessment summary has been sent). If you send out the assessment summaries and then immediately publish the Contract Award Notice, the standstill period will be 8 working days beginning on the date following publication – which is then effectively the minimum time bidders need to have assessment summaries available before the contract can be signed. - Given the requirement to advise why a supplier did not achieve the score higher than awarded - do we need to include within our tender, specific details of what we would expect to see/award for each question and how this would translate within our evaluation criteria?
Agreed; this is likely to mean that scoring methodologies will need to be clearer on what a bidder needs to achieve to be awarded score “x” (and why score “x” is distinguishable from score “y” and score “z”).
- Where can we have sight of the draft regulations, please?
Currently the draft regulations are available here. As mentioned on the webinar, we are expecting the draft regulations to be finalised as the Procurement Regulations 2024 by the end of March; it is possible that the draft requirements may be further developed/revised.