PLC Public Sector reports:
The latest event organised by the Procurement Lawyers’ Association took the form of a Question Time session (of the BBC, rather than the Prime Minister variety). Totis Kotsonis of Norton Rose played the role of David Dimbleby with Professor Sue Arrowsmith, Director of the Public Procurement Research Group at Nottingham University, and Michael Bowsher QC being called upon to provide their views on the issues currently taxing the public procurement community.
Of most interest was the debate triggered by a question on the old favourite of using experience as an award criteria.
Asked for her interpretation of the Lianakis decision, and whether it prohibited all reference to a tenderer’s experience at the award stage, Professor Arrowsmith unequivocally expressed the view that experience could, and indeed should, be used at award stage. Professor Arrowsmith argued that:
- Experience, that is “I have been doing this for 20 years” or “I’ve done this 10 times before”, should not itself be an award criteria, not only would this be in breach of the public procurement regime it would not establish the quality of the tenderer’s proposal – they could have done it badly 10 times before!
- Reference to experience is however one of the only ways a tenderer can actually provide evidence that they can deliver what they promise in their tender. Experience should be used in this way and doing so does comply with the procurement regime. Professor Arrowsmith acknowledged that the Commission has not necessarily taken this view but highlighted that it is standard practice in most EU member states to refer to experience at award stage (both pre and post Lianakis) and that the Commission itself does so in its own tenders.
Professor Arrowsmith’s views received the full support of Michael Bowsher, who queried how the award criteria explicitly set out in the Directive relating to the period of completion and delivery date could be accurately evaluated without reference to prior experience (that is, we have delivered to this timescale before). He also refuted a suggestion from the floor that reference to experience meant that a bar to market entry existed for smaller suppliers, claiming that it was up to smaller suppliers to highlight how experience on smaller projects was transferable to larger ones.
To those who take a commonsense view of the public procurement regime there was little to dispute in the approach of the panel members. However, David Gollancz, formerly head of public sector at Field Fisher Waterhouse, sounded a note of caution when he commented that this was obviously the right approach, but the problem was that it wasn’t the Commission’s approach. Therefore it would still take a brave practitioner to give the all clear to using experience at the award stage. It was in response to this comment that the audience was treated to the most positive news of the session. The head of legal at the OGC stated that she fully supported the approach that the panel members had set out and, when pressed by Michael Bowsher, stated that the subject of Lianakis had not recently cropped up in her regular discussions with the Commission. Is there light at the end of the tunnel?
Other subjects of debate at the session were:
- Contracts outside the Directive.
- The Remedies Directive and the limitation period for ineffectiveness.
- Pressetext variations.
- Framework agreements.
Later on in 2010 we will be significantly expanding our series of public procurement FAQs and these areas will all be covered.
Other significant news came from Peter Bennett (Head of EU Development, at the OGC) who gave an update on how the Commission is looking to move the public procurement regime forward and confirmed that we can shortly expect to see a consultation setting out various options for amending the Public Contracts Regulations 2006 in light of the judgment in Uniplex.
The debate on the use of experience as an Award criteria has highlighted an issue that we have been wrestling with in our authority.
In an Open Procedure our form of Invitation to Tender sets the two parts of the evaluation process. Firstly there is the selection phase to weed out bids that do not pass the pass/fail tests that we set – relevant insurances, financial standing, membership of professional bodies where relevant (eg CORGI or equivalent) etc. Those bids that pass this stage then proceed to the full Award part of the process.
However, there are other selection aspects eg references, experience which cannot be assessed on a crude pass/fail basis but would, in a PQQ process, be evaluated on a scored basis. The question we would like views on is whether you use scored selection criteria in an open process to identify the bids that then go forward to full evaluation of the award criteria? If not, how do you take references and experience into account in an open process?
The key difference between the open and other procedures is that everyone is entitled to submit a tender and, if they as an organisation meet the authority’s minimum requirements, have it evaluated in accordance with regulation 30 of the Public Contracts Regulations 2006. Under the other procedures the authority is able to take all those that meet its minimum requirements and reduce them to a manageable number and only invite tenders from this reduced number.
Authorities are free to use the same selection tools (including scoring) in the open procedure when assessing technical or professional ability of the tenderer as they would at the pre-qualification stage under the restricted procedure. The difference is that under the restricted procedure the top scorers could expect to progress and be invited to tender, while under the open procedure everyone who scores above a certain score (that is, the score that the authority has set in advance as its minimum requirement) is entitled to have their tender evaluated.
It goes without saying that whatever an authority wishes to do, it must be set out its proposals in advance to the potential tenderers.