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2 June 2021 | Comment |

Public procurement – 4 common mistakes and how to avoid them


A successful procurement is something which will take time, strategic planning and constant review. By understanding the most common mistakes that can arise, contracting authorities can put procedures in place to manage and ultimately prevent them from occurring. Prevention in procurement is always better than the cure.

Whilst not exhaustive, this blog covers four of the most common mistakes and looks at how such mistakes can be avoided.

Legislative constraint

The general obligations of equal treatment and transparency in the Public Contracts Regulations 2015 mean it is imperative that contracting authorities set out a clear road map for the bidders at the outset of the procurement. Contracting authorities are not permitted to change the process in a manner which may advantage or disadvantage a particular bidder, so planning is critical to ensure that the tender process is carried out in an open, objective and cost-effective manner. For smaller projects a feasibility study and a screening stage should be considered, whilst consultations should be considered for large scale projects, particularly where the project is likely to have an impact upon members of the public.

Time

Major difficulties in the procurement process often arise because not enough time is built into the process. This is because the scope to deviate from the timetable and requirements communicated at the outset lessens the further you move along the process. Preparation is the key to not being caught out. Unforeseen changes in market dynamics or tender requirements can often leave contracting authorities without much scope or time to react. It is important for contracting authorities, at the outset of the procurement, to determine the likely interest in the procurement and identify how many bidders will be taken through to each stage. This will allow the contracting authority to meticulously plan for each stage and avoid being caught out by unforeseen time pressures.

Threshold Criteria

A pass or fail threshold approach is commonly used in the scoring of a public procurement. However, too often insufficient consideration is given to the implications of this approach. This can result in contracting authorities being caught out and having to disqualify bidders because they have failed an unimportant technical criterion when they otherwise meet the requirements of the tender. Contracting authorities should consider, via internal consultation, the appropriate price/quality weighting and test the impact of scoring outcomes. A ‘dummy run’ on the scoring should be considered to ensure the scoring methodology used does not result in the unnecessarily strict exclusion of bidders.

Invitation to Tender

It is a common mistake in public procurements for contracting authorities to not build enough flexibility into the Invitation to Tender (ITT). The contracting authority should look to afford itself as much discretion as possible, whilst bearing in mind its obligations of equal treatment and transparency. It is important for contracting authorities to make it explicit that they can change matters set out in the ITT and abandon the process if necessary. Case law has established that contracting authorities can write in flexibility and discretion, however caution must then be taken as to how that discretion is to be exercised.

It is easy for mistakes to creep into the procurement process, particularly where contracting authorities are faced with strict time constraints or changes to tender requirements. However, these mistakes can often be avoided with appropriate planning.

If you would like assistance with your procurement, or advice regarding any issues in your procurement process, please get in touch with a member of our procurement team.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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