The Diverse Law Firm The Diverse Law Firm Public Procurement Challenges - Modern Slavery Act 2015 15 March 2018 Public Procurement
Introduction The Diverse Law Firm • High volume of procurement challenges in UK o 11% of cases in Technology & Construction Court in London are procurement challenges. o Numerous other procurement challenges which never get to Court o Size of UK procurement market - £240 billion of £740 billion annual public spend • Objectives of webinar o Public bodies - how to avoid your procurement awards and processes being challenged o Bidders – how to identify grounds for challenge o Both – how to deal with procurement challenges when they arise Public Procurement
The Diverse Law Firm Introduction: Types of Tenders • Public Contracts Regulations 2015 o Other sectors – Utilities Contracts Regulations 2016, Defence and Security Public Contracts Regulations 2011 o Concession Contracts Regulations 2016 • Financial thresholds – new since January 2018 o Central government contracts for services and supplies - £118,133 o Other public bodies contracts for services and supplies - £181,302 o Public works contracts - £4,551,413 Public Procurement
The Diverse Law Firm Public Contracts Regulations 2015 • Light touch regime o Financial threshold: £615,278 o More freedom over process o Uncertainty over obligation to hold standstill period – Crown Commercial Guidance recommends running one • Below threshold contracts o Less onerous requirements o Only some parts of Regulations apply o Value greater than £10,000 (central government) or £25,000 (other public bodies) advertise on Contracts Finder o BUT general EU principles apply where there is cross-border interest Public Procurement
The Diverse Law Firm Common Reasons for Procurement Challenge • When can a procurement decision or process be legally challenged? o Where a public body has not complied with the required procedure o Where a public body has exceeded its discretion (manifest error) o Where a public body has not complied with EU procurement principles o Where the facts upon which a public body makes a decision are wrong Public Procurement
The Diverse Law Firm Procurement Principles • Procurement Principles (Regulation 18) o Non-Discrimination o Transparency o Equality o Proportionality Public Procurement
The Diverse Law Firm Common Reasons for Challenge • Procedural breaches of the Regulations • Challenges to tender design • Challenges to tender evaluation • Challenges during the performance of the contract Public Procurement
The Diverse Law Firm Procedural Breaches • Major procedural breaches subject to remedy of ineffectiveness o Failure to advertise o Failure to hold a standstill o Entering into the contract during the standstill • Other procedural breaches Public Procurement
Tender design The Diverse Law Firm • Quality award criteria o Criteria must be directly related to the subject matter of the contract and proportionate o Must ensure possibility of effective competition o Must include specification to allow bidders to assess how well they meet the criteria • Regulation 67 Public Procurement
The Diverse Law Firm Challenges to Tender Design • Practical examples: o Publishing/typographical errors e.g. mistakes in the number of marks available o Confusing/ambiguous language Can it be understood by the reasonably diligent person? o Requirements which cannot be met e.g. products or standards which no longer exist o Requirements which favour one bidder over others Regulation 42 – detailed rules on technical specifications Be wary of suppliers helping with design of the tender - risk of favouring incumbent/supplier Public Procurement
The Diverse Law Firm Challenges to Tender Design • Bidders: raise complaints quickly o Limitation period of 30 days - no option to sit on a challenge and only raise it if you do not win • Public bodies: Use clarifications o Correct mistakes to avoid challenge Public Procurement
The Diverse Law Firm Challenges to Evaluation • The most common type of legal challenge • Contract Award Letter notifies unsuccessful bidder: Their marks and the successful bidder’s marks Reasons for decision, including “ characteristic and relative advantages of the successful tender, the score … of the tenderer to be awarded the contract or become party to the framework agreement ” That a standstill period will now take place (Regulation 86) Public Procurement
Marking Tender Responses The Diverse Law Firm • The tender documents PART 2 AWARD CRITERIA MARKS Provide a method statement (of two A4 pages maximum) setting out your proposals to meet the requirements of the 2.1 10 Service Explain your mobilisation plan and your proposals to ensure that all task orders are completed within the given time 2.2 10 scale (maximum one A4 page). Specify the members of delivery/project team, including their roles and responsibilities (including CVs) (maximum 2.3 10 one A4 page) Specify the training and competencies of your directly employed staff in relation to the safe removal of Asbestos 2.4 10 Containing Materials and reinstatement of non-asbestos products (maximum one A4 page) How do you propose to ensure the Health and Safety of employees, residents and other stakeholders on site? 2.5 10 (maximum one A4 page) Please provide details of the quality systems you will use to ensure all works are fully compliant with the Specification 3.1 and are completed in accordance with each Task Order programme. (maximum one A4 page) 10 Provide a statement of your commitment to develop a good working relationship with the client and other stakeholders 3.2 of the contract. Please describe measures to be taken to maintain this relationship (maximum one A4 page) 10 Please describe how you would manage the defect correction period. Please describe what procedures you have in 3.3 10 place for managing complaints (maximum one A4 page) Please provide details of your proposed communication procedures in relation to the requirements of the contract 3.4 10 (maximum one A4 page) Woods Building Services v Milton Keynes County Council (2015) Public Procurement
The Diverse Law Firm Challenges to Evaluation • A marking error of a question where no independent judgement/assessment required Section Bidder A Bidder B Question o Incorrect adding up 5 4 1. 7 6 o Applying weighting incorrectly 2.1 7 5 2.2 o Awarding bidder more marks than 4 5 2.3 1 2 available for question 2.4 2 2 3.1 5 3 3.2 1 6 • Always grounds for challenge 3.3 5 5 4. 36 37 Total Public Procurement
Challenges to Evaluation The Diverse Law Firm • Awarding marks on basis of incorrect facts o Mistakenly believing bidder had not supplied a mandatory document o Misreading or misunderstanding bidder’s response when meaning clear • Always a ground for challenge 5 Public Procurement
Challenges to Evaluation The Diverse Law Firm • A marking error of a question where independent judgement/assessment is required by evaluator o Court’s role is to review, not re -mark, bids o Public bodies are allowed a “margin of appreciation” in their marking o You need to prove a “manifest error” PART 2 AWARD CRITERIA MARKS 2.1 Provide a method statement (of two A4 pages maximum) setting out your proposals to meet the requirements of 10 to challenge the Service 2.2 Explain your mobilisation plan and your proposals to ensure that all task orders are completed within the given 10 time scale (maximum one A4 page). 2.3 Specify the members of delivery/project team, including their roles and responsibilities (including CVs) 10 (maximum one A4 page) 2.4 Specify the training and competencies of your directly employed staff in relation to the safe removal of Asbestos 10 Containing Materials and reinstatement of non-asbestos products (maximum one A4 page) 2.5 How do you propose to ensure the Health and Safety of employees, residents and other stakeholders on site? 10 (maximum one A4 page) 3.1 Please provide details of the quality systems you will use to ensure all works are fully compliant with the 10 Specification and are completed in accordance with each Task Order programme. (maximum one A4 page) 3.2 Provide a statement of your commitment to develop a good working relationship with the client and other 10 stakeholders of the contract. Please describe measures to be taken to maintain this relationship (maximum one A4 page) 3.3 Please describe how you would manage the defect correction period. Please describe what procedures you have 10 in place for managing complaints (maximum one A4 page) 3.4 Please provide details of your proposed communication procedures in relation to the requirements of the contract 10 (maximum one A4 page) 4.1 Please detail the initiatives you will take to protect the environment. Please describe how it would affect the 10 environment of the Borough of Milton Keynes (maximum one A4 page). 4.2 Please provide a statement detailing how you would deal with waste materials i.e. friable and bonded asbestos 10 waste and all associated product, including waste disposal methods (maximum one A4 page) 5.1 This contract is focussed on improving the safety and living standard of our housing stock, in order to improve 10 the social, economic and environmental wellbeing of our residents. Therefore please explain what specific steps you will take to contribute to this objective. (maximum one A4 page) Public Procurement
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