Running a restricted procurement

Following the UK government’s move to restrict the use of competitive dialogue, many public sector procurements that would traditionally have involved dialogue are using the restricted procedure. The procedure can help to shorten procurements and save outlay from both public and private participants involved.

However, because the procedure does not allow for negotiation on the terms of the contract, it presents a number of risks – and particularly on complex procurements. These can include: the market being unable to produce fit-for-purpose tenders; tenders being equivocated or returned as variants; a successful challenge being made because of a perceived inequity in the process.

Attracting a good number of high-quality, unqualified tenders and guarding against the risk of challenge are key to running a successful procurement. By taking action to ‘de-risk’ the restricted process, procurement professionals can be more confident of achieving a successful outcome.

Here are four steps you can take to de-risk the restricted process:

Spend time with bidders

Although not a substitute for competitive dialogue, all parties will benefit from properly regulated, face-to-face discussions. Bidder conferences are common in procurement, but holding one-to-one meetings with bidders is a useful tactic too. These give you a chance to explain the contract and requirements, and to field questions from bidders one at a time.

If you hold one-by-one meetings, make sure all bidders are treated fairly by issuing meeting notes. You should record, make anonymous and distribute any questions and answers to all bidders.

Encourage proposals during the tendering period

To avoid equivocated or varied tenders, encourage bidders to propose alternative positions during the tendering period, through the formal query process and in face-to-face meetings. You will need a documented process to assess whether alternative proposals should be accepted and to determine whether amending tender documents to reflect bidders’ proposals would provide an unfair advantage to any one bidder.

Make sure that you communicate details of any alternative proposals and your subsequent decision to all bidders, and explain why each proposal was incorporated into the contract or not.

Use an independent observer to ensure neutrality

Using an independent observer can help to mitigate the risks associated with engaging directly with bidders. The observer’s brief should be to ensure the fairness of the tendering process and equitable treatment for all bidders.

Involve the observer in any one-to-one meetings and give bidders access to the observer so they can raise and resolve any concerns without recourse to formal challenge.

Set out the process clearly

Protecting the authority against challenge is vital. Any action you take to de-risk the procurement process should be clearly set out to bidders in the invitation to tender (ITT). Use the ITT to let bidders know about the timescales for the procurement and the resources likely to be required. Issuing this information will ‘start the clock’ on the 30 days bidders have to raise any formal complaints about the proposed process and will alert you to any issues before you select a supplier.

The restricted procedure presents a particular set of risks, particularly on complex procurements. By taking action to ‘de-risk’ the process, procurement professionals can be more confident of achieving a successful procurement.

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