The following questions are provided without warranty. Readers should be aware:

  • The questions have been written by a person without any legal qualifications.

  • Where applicable, they should seek suitable legal advice appropriate to their situation.

  • They can independently ask questions to regulators and include the replies of regulators in questions to buyers.

  • Freedom of information requests can be used to discover information at any stage of a tender process.

 

The questions are free to use. The Skillful Pass stands up for fairness and against corruption in all its forms. Public sector organisations must comply with the law and applicable government policies. The questions seek to take advantage of this. If you use the questions, please feel free to:

  • Provide information on how you get on.

  • Publicise the questions to customers, suppliers, contacts etc.

 

Clarify pass / fail criteria

  • Example: Question x asks if the tenderer has ISO 14001. Where a tenderer does not have ISO 14001, will the tender submission be rejected?

Try and Exclude Other Parties

  • On the basis of ‘suitable credentials’.

  • Example: Question x requires an ISO 14001 certificate is uploaded. Please can clarification be provided on how the certificate will be assessed if it is subject to UKAS procedures or not subject to UKAS oversight.

 

Try and Exclude Other Parties

  • On the basis of ‘suitable credentials’. Adjust the following to suit.

  • Example: Question x requires a competence certificate in whatever (replace with whatever is appropriate) is uploaded. Does the certificate need to be issued within the last x years? Does the certificate need to be issued by an ‘accredited provider’?

 

  • On the basis of complying with regulations.

  • A buying organisation can not choose what regulations it complies with and what regulations it ignores.

  • Adjust the following to suit.

  • Example: the specification states the tender is for the acceptance and treatment of whatever waste (replace with whatever is appropriate). This waste is wet. Under the Duty of Care Regulations, the buying organisation is required to ensure all constituents within its wastes are disposed of legally. Will the tender be amended to require proof of a legally compliant method to dispose of whatever waste including associated water?

 

  • A buying organisation can not choose to turn a blind eye when it comes to legal compliance.

  • Adjust the following to suit.

  • Example: If during the course of the contract, the buying organisation becomes aware that the service provider may not have complied with Regulations, does it undertake to inform the relevant regulators?

 

  • Adjust the following to suit.

  • Example: We are concerned that the current service provider may not have complied with regulations. (We have no proof in this respect but our concerns are based on the clarifications raised.) If during the course of the current contract, the buying organisation becomes aware that the service provider may not have complied with Regulations, does it undertake to inform the relevant regulators?

  • This is relevant to the tender as we are concerned the incumbent service provider may use profits from the current contract to subsidize their tendered prices.

 

Try & Ensure a Level Playing Field

  • Use the Public Contracts Regulations 2015 (or whatever regulations apply to the tender).

  • Download a copy by searching for the above. (Also Statutory Instrument 102 may assist.)

  • A buying organisation can not choose whether or not it complies with the requirements of the Public Contracts Regulations 2015 if the value is above thresholds.

  • There are different thresholds for services and works.

 

  • Be aware of reasons if a tender appears biased:

  • Can be an error.

  • Can be a conspiracy. Does the buyer take a bung?

In my experience – bear in mind based on incomplete evidence - the majority appear to fall into the first category of errors. Hence, it is advisable not to jump to any conclusions.

 

  • In my opinion, it is better practice if a buyer specifies the result or requirement rather than the method. This leaves room for a variety of methods including innovation.

  • For example:

  • A boat to carry out the following duties…

  • Rather than

  • Boat dimensions: xx. Engine power: xx kW. Etc.

 

  • There are some very useful regulations in the Public Contracts Regulations 2015.

  • For example:

  • Regulation 18 on fairness, transparency, equal treatment and not artificially narrowing the competition.

  • Regulation 42 on technical specifications. Should afford equal access and not create unjustified obstacles. Should reference standards. Should state ‘or equivalent’. Unless justified, should not reference a specific make or source.

  • Example questions:

  • Tender document whatever specifies tenderers should use method X to do whatever. Would method Y be accepted as equivalent?

  • The ITT specifies curing repaired pipes using UV radiation. This is not the only method for curing. Would curing using steam, hot water and ambient conditions also be accepted as equivalent?

  • The ITT states equipment must have a minimum rating of X? In our experience of providing similar services for z years, equipment with a rating of Y is capable of providing the service. Please can the ITT be adjusted or a logical engineering justification be provided of why a minimum rating of X is needed.

 

  • Regulation 44 on test reports, certificates etc. from a ‘conformity assessment body’ e.g. laboratory certified in accordance with UKAS requirements.

 

  • Regulation 47 on setting time limits. The time to make site visits should be allowed for. Should be sufficient time to respond to complex tenders.

  • Example questions:

  • Is a visit being organised as part of the tender process?

  • We request a visit to assist with tender preparation. Please explain how this will be accommodated?

 

  • Regulation 55 on information e.g. reasons for:

  • Exclusion from participation

  • Non-equivalence of technical specifications.

  • Relative advantages of the winner.

 

  • Regulation 57 on mandatory exclusions. If you lose, you learn the winner’s name. It is logical to check for evidence if the winner should have been excluded. For example, the winner may have no track record or could be bankrupt.

 

  • Example questions:

  • Please can feedback be provided.

 

  • For example:

  • Regulation 58 on selection criteria. These should be appropriate & relevant to the contract. This can relate to:

  • Economic and financial standing.

  • Professional and technical capability.

 

  • For example:

  • Regulation 60 on means of proof e.g. proof of:

  • Not matching exclusion criteria.

  • Accounts and insurance.

  • Details of previous contracts.

  • Statement of resources (personnel / equipment).

  • Qualifications / certificates.

  • Third party certification e.g. ISO 9001, ISO 14001 etc.

  • Example questions:

  • Regulation 60 on proof. If you lose, you learn the winner’s name. It is logical to check for evidence if the winner was entitled to claim it had all the evidence requested.

 

  • For example:

  • Regulation 63 on reliance on capabilities of others e.g. consortium, subcontractors, joint ventures to:

  • Meet financial standing criteria.

  • Satisfy technical requirements.

  • May need to prove commitment e.g. letter of support.

 

  • For example:

  • Regulation 67 on award criteria: relative weightings should be specified or criteria provided in decreasing order of importance.

 

  • For example:

  • Regulation 68 on life cycle costing e.g. considering purchase price and operating costs.

  • Can be of use e.g. if your equipment is more expensive to purchase but more energy efficient, has lower maintenance costs and longer life expectancy than rival equipment.

 

  • For example:

  • Regulation 69 on abnormally low tenders.

  • Require buyers to seek an explanation. Explanations can be accepted e.g. may be explained by innovative methods.

 

  • For example:

  • Regulation 87 on standstill period: 10 days before the buyer can enter into a contract. Hence, it is logical to assess feedback as a matter of urgency:

  • Where did you finish? Were you second?

  • May wish to check credentials of the winner on ‘pass/fail’ criteria and provide findings to the buyer e.g. evidence / doubt of the winner not satisfying pass/fail criteria.

 

  • For example:

  • Regulation 92 on time limit for court proceedings: within 30 days of knowing there were grounds to proceed or 30 days of when he should have known.

  • Carefully consider legal advice at a prudent stage of the process e.g. if you lose and are aggrieved.

 

  • Be aware a buyer may choose not to answer questions related to the Public Contracts Regulations 2015 if the value of the contract is beneath the applicable threshold.

  • Nothing should be read into this.

© 2014 by The Skillful Pass Limited. Proudly created with Wix.com

  • c-facebook
  • Twitter Classic
  • Google Classic
This site was designed with the
.com
website builder. Create your website today.
Start Now