With the economy putting pressure on IT budgets, growing demand for IT departments to support organisations’ business goals, and greater regulatory oversight, the procurement process is becoming more important. With that in mind, law firm Clarke Willmott has detailed its ‘ten commandments’ for anyone involved in public procurement.
1. Thou shalt not commit negotiations – even when following the negotiated procedure, post-tender negotiations that lead to a change of price or any other material changes in a tender are not permitted.
2. Neither shall you start at the beginning – the first step in the procurement process for complex projects should not be to draft the contract notice, but to consider what the perfect outcome would be, and the characteristics of the perfect partner. That provides a basis for determining the criteria to be adopted for the selection of bidders and evaluation of submissions, and for drafting the contract notice.
3. But detail can be deadly – far too often lawyers are asked to advise at an advanced stage in the procurement process when a project has evolved into something rather different from that described in the original contract notice. This can be fatal. The formal notice should be drafted as broadly as possible in order to permit a degree of development in the nature and scope of the project.
4. Don’t be distracted by value – although value thresholds are reviewed regularly, they should be regarded as no more than a rough guide. Rather than asking ‘is the project above the latest value threshold?’, the key question should be ‘is the project likely to be relevant to the market within the European Union?’
5. Don’t be fazed by Auroux – the general rule relating to regeneration projects remains that, despite the European Court of Justice’s finding in the Auroux case in 2007, pure development agreements are not governed by public contracts regulations and need not be exposed to competition.
6. Don’t go back – the criteria used in the selection of bidders may not be used again in the evaluation of submissions. For example, in the event of two tenders achieving identical scores, a selection criterion such as economic standing may not be used as a tie-breaker.
7. Don’t hide anything – when approached by bidders or potential bidders for information or clarification, do remember that information provided to one entity must also be given to all others.
8. Don’t lose track – remember to keep a detailed record of all steps and decisions taken in the procurement process, particularly around the selection of bidders, evaluation of submissions and any dialogue with bidders.
9. Don’t forget to invite challenge – it is vital to notify all other bidders of the result of the procurement process before awarding the contract.
10. Reveal all – the criteria for the selection of bidders and evaluation of submissions must be provided to all bidders.
