Tenders Direct Blog

Comment from the experts at Tenders Direct.

Archive for the ‘General Procurement’ Category

High Speed 2 – A whole fleet of opportunities

Posted by David Law on April 27, 2017

railway-673513_1920

Unless you have been living under a railway bridge for the last 10 years, you will know that in 2010 the UK Government approved the plan to create High Speed 2 (HS2): a high speed railway from London to Manchester/Leeds.

Off the rails? Most definitely on. HS2 will shrink the travel time for many commuters and travellers between the cities in the Midlands and London, and for freight by improving lead times on deliveries, that in turn improves customer satisfaction (railtechnologymagazine.com).

HS2 will be one of the most ambitious projects undertaken in this country in recent years. The venture will create tens of thousands of jobs and generate billions of pounds worth of contract opportunities for suppliers in many fields. With 2026 the deadline date for HS2, what have we seen so far in terms of opportunities?

A tender has just been published looking for a supplier to provide them with 54 new high-speed trains along with maintenance, servicing and refurbishment for an initial 12-year period.  This tender is worth £2.75 billion and has the option to be extended for the entire design life of the trains. Read the rest of this entry »

Posted in Construction Tenders, General Procurement, suppliers | Tagged: , , , , , | Leave a Comment »

Accepting Electronic Submissions – what does it mean for buyers?

Posted by emilypirie on April 17, 2017

ecommerce-2140603_1920

From the 18th of April 2017, all Central Purchasing Bodies (CPB) will only be permitted to accept electronic submissions to procurement exercises. By September 2018 this requirement will be extended to all public contracting authorities. Whichever type of buying organisation you are, you’ll need to be aware of what this means.

What is a CPB?

This is defined as a contracting authority that acquires goods or services intended for one or more contracting authorities (“buyers”). Examples of CPBs include The Crown Commercial Service, The Scottish Government and APUC (Advanced Procurement for Universities and Colleges) as they procure on behalf of multiple contracting authorities.

What counts as an electronic submission?

Regulation 22 of the Public Contracts Regulations 2015 tell us what we need to know. The main thing to clarify is this – e-mails do not count as electronic submission. Electronic submissions must use a tool where the exact time and date of submission is provided. In addition to this, only authorised persons can access the data and therefore no one has access to the data transmitted prior to the deadline.  Electronic submissions must also include a tool to clearly detect infringement or any attempt of infringement of the access prohibitions.

There are a number of benefits to electronic submissions for both the buyer and the supplier:

  • Everything is automatically time-stamped and fully auditable
  • Reduced costs
  • Reduced impact on the environment
  • Quicker and more streamlined process on both sides of the procurement

So what does this mean for buyers?

Moving on to an e-procurement portal would benefit all buyers as it allows them to run procurement processes in compliance with the EU Directive and UK Regulations on Public Procurement by:

  • Attaching documents to their tenders
  • Allow the submission of tender documents
  • Allow one-to-one interaction with the suppliers

Want to find out more?

If you are a contracting authority, myTenders PRO is the ‘go to’ e-procurement portal for publishing contract notices. Our portal can facilitate electronic submissions to make sure you are compliant with these new regulations, and those that will come into place for all buyers in the future.

Call us on 0844 561 0670 or visit our website to find out more.

myTenders logo

Posted in General Procurement, Procurement Law | Leave a Comment »

Developing a bid strategy in a challenging marketplace

Posted by Gemma Waring on April 12, 2017

Strat Blog

Set your own strategy – be proactive not reactive when tendering.

 

Recently, Millstream highlighted the strength of Virgin’s approach to business development in our article featured on Energy Voice’s website. Virgin have championed diversification across sectors to generate more business opportunities: taking people to space, running the railways and providing healthcare services are just a few examples of Virgins product range.

This approach to business has resulted in staggering financial rewards for Virgin and other companies who are able to operate as primes in the prime/sub model.

The prime/sub model is when a large contractor wins the tender and are the prime contractor to the buying authority, they subcontract out elements of the tender to other suppliers, usually locally based SMEs.

So what impact does the prime/sub model have on SMES?

We all know there has been a massive drive from the government to support SMEs to benefit from the wealth of opportunities in the public sector.

This has been seen through their commitment to spend 33% of central government money with SMEs and also through the changes to the selection criteria in 2016 making it easier for SMEs to bid.

The question is – when huge prime contractors are winning huge contracts and replacing existing smaller providers, how is the government’s agenda being achieved?

The answer is it usually isn’t: when a prime contractor wins a public sector contract they are ultimately responsible for delivery and are looking to make profit. This often has a negative impact on the finances for SMEs as the prime contractor seeks to find efficiencies and cost savings through the supply chain to increase their own profit.

When a supplier is faced with the potential of the prime/sub model taking up a chunk of their business or taking away a business critical tender, many SMEs may feel they have no option but to join the supply chain if they are to survive.

However, that might not be their only option to succeed! Facing your Goliath means you have to find your inner David and seek out a new way to do business.

So what is the answer?

The answer is simple – have a strategy in place. Nothing stays the same in business and this is the next big challenge smaller providers are facing. There are a number of proactive steps suppliers can take to ready themselves for any impending changes:

  • Pre- Engage with the Contracting Authorities – in these situations waiting for the tender is too late. The only way suppliers can influence hearts and minds is to engage in advance of the tender being released. Use Tenders Direct to search for contract award notices (CANs) to find out when a contract is due to end, or to gain contact details from key buyers. You can also keep an eye out for prior information notices (PINS) which notify you of a future procurement exercise and give you plenty of time to pre-engage with the contracting authorities.

 

  • Form a consortium – rather than get swallowed up into the jaws of a prime contractor, suppliers can meet with other local providers to see if they can form a consortium or a special purpose vehicle and bid together. These groups of suppliers can then trade on their established infrastructure and wealth of experience and be able to trade on their own terms.

 

  • Join the team – some may relish the prospect of joining a supply chain. Suppliers will lose a lot of responsibility and liability when it isn’t their name on the contract, and some may prefer to operate with a lower steak in the contract with less risk rather than nothing at all.

 

These potential strategies translate across industries and sectors. Millstream meet with suppliers every day and as a qualified bid manager, I am constantly surprised how many do not have a documented and thought out bidding strategy.

I encourage suppliers to be proactive and take control of their destiny.

Working in the public sector can offer suppliers long term, well-paying business opportunities, and these deserve just as much time and attention as an internal strategy.

If you want to analyse your own bidding strategy or even create one from scratch, you should join our half day Success Simplified courses in London and Manchester and make sure you are deciding on your business’s future and not leaving it in the past.

Posted in General Procurement, suppliers, Tender Tips | 2 Comments »

Brexit: A “historic moment from which there can be no turning back” – but what does it mean for public procurement?

Posted by Duncan Dallas on March 31, 2017

eu-1473958_1920After the referendum result last June and the resulting legal challenges, parliamentary debates, votes and royal assent (not to mention the debates down at the pub and on social media) Prime Minister Theresa May has finally triggered Article 50 notifying the European Council of the UK’s intention to withdraw from the EU. Whichever side of the debate you found yourself on one thing is now clear – the UK is leaving the EU and that is likely to have a huge impact for us all.

Unfortunately, but unsurprisingly, the PM’s letter to the European Council triggering Article 50 made no specific reference to public sector procurement – it’s unlikely to be at the top of any agenda – but point v.i. of her “suggested principle” for the negotiation deals with trade.

If any major change is to come in relation to public procurement it will be as a result on the outcome of the negotiations relating to trade between the EU and the UK. It is important to note that at present and until the negotiations are complete and the UK leaves the EU, the procurement regulations will remain the same. The European Council’s Directive on Public Procurement has been transposed into UK and Scottish law by the current Public Contracts Regulations 2015 and Public Contracts Regulations (Scotland) 2015 respectively. After exiting the EU, the UK will have the option of amending or replacing these regulations but it seems unlikely that they will change drastically.

All EU member states have roughly the same ambitions when it comes to public sector procurement – openness, transparency, fairness, VfM, increasing access for SMEs – and therefore the current regulations were designed with these in mind.

If you were hoping for a removal of perceived EU “red tape” in public sector tendering I believe you’ll be disappointed. Indeed, you may instead experience some “red, white and blue tape” as the UK lawmakers amend the relevant regulations whilst ensuring that all the principles of good public procurement processes remain in place.

If the UK is to become part of the European Economic Area, a status held by the non-EU countries of Iceland, Norway and Liechtenstein then very little is likely to change. The EEA countries are bound by their membership agreement to follow the principles of EU public procurement and all three countries advertise their above threshold procurement requirements in the Official Journal of the European Union (OJEU).

Even if the UK does not join the EEA, it is still a signatory of the World Trade Organisation’s Government Procurement Agreement, which imposes the principles and practices of fair procurement on all its members. The public sector will still need to purchase what it does today and will need to advertise it openly. This may just mean that the opportunities are advertised on national platforms rather than in the OJEU. Either way you can be sure that Tenders Direct will be picking them all up and distributing relevant opportunities to our members!

millstream

Posted in General Procurement, Politics of Procurement, Procurement Law, suppliers, Uncategorized | 2 Comments »

Making your own luck

Posted by John Cutt on March 16, 2017

ireland-1312434_960_720
We’re all familiar with the various thematic clichés associated with St Patrick’s Day celebrations: leprechauns, pots of gold, four-leafed clovers and good luck. But did you know that the phrase “luck of the Irish” does not necessarily refer to the good variety?

Read the rest of this entry »

Posted in General Procurement | Leave a Comment »

Excluding suppliers based on poor past performance

Posted by Line Olsen on January 10, 2017

All of the UK has now transposed the new EUunacceptable Public Sector Directive 2014. One of the existing provisions is that buyers now have a discretionary right to exclude suppliers based on poor past performance.

We have all heard the stories. A supplier winning a contract because they make all the right promises, but when the contract starts, they just don’t meet the standards expected. The buyer is not happy. They are stuck in a contract that most likely ends up costing them more. In addition, the suppliers that didn’t win are demoralized. What is the point of bidding when other suppliers just lie and win? Therefore, this is a welcome provision by many, a hope of getting rid of the unscrupulous operators in the market.

But is it that easy? As a buyer, and you have had a bad experience with this one supplier who is bidding on your contract – or you have heard about their poor performance from someone else – can you decide to exclude them just like that?

Read the rest of this entry »

Posted in General Procurement, Procurement Law | Tagged: , , , , | Leave a Comment »

Procurement terminology: what are ‘small’ lots?

Posted by Line Olsen on January 6, 2017

In public procurement, lots, and in particular ‘small lots’ small lotare often an area of much confusion. What is a small lot and what does the small lot threshold mean?

Hopefully this SMALL blog entry will answer a LOT of your questions.

Read the rest of this entry »

Posted in General Procurement, Politics of Procurement, Procurement Law | Tagged: , , , , , , , , , , | 2 Comments »

Quirky Tenders: 2016’s most memorable tender notices

Posted by emilypirie on January 3, 2017

calendar-1301748_1280

Here ye, here ye, we’ve got some entertaining news.

2016 has drawn to a close. What happened in the 365 days that made up 2016?

Read the rest of this entry »

Posted in General Procurement | 2 Comments »

CPV codes – are they accurate?

Posted by emilypirie on December 2, 2016

dart-board-933118_1920

In October of 2016, the European Commission announced details of a study on CPV codes – Common Procurement Vocabulary codes – which tender notices are classified under.

There are around 10,000 CPV codes, and the list of codes was last updated in 2008. The codes range from very niche; animal ear tags (03340000); mange-tout (03221222); zirconium (14735000), to more common areas; building construction work (45210000); health and social work services (85000000) and computer supplies (302373000). The codes don’t reflect new technologies and computing mimicking the advance in technology in recent years, branding a lot of CPV codes out of date.

Despite this, buyers still list their contract notices under these codes in the hope of them being found by suppliers who want to bid for it.

The research carried out by the European Commission this October threw up some sobering news: in a sample of 405 notices tested, 23% had the wrong code associated with the scope of work tendered.

In around 10% of cases the code applied did not describe the work/supply/service procured; in some 8%, the code applied was too general, and in about 4%, the code was too specific.

So amidst this muddle of what code gets used where, what does this mean? In fact, it’s a pretty big deal for both buyers and suppliers.

If an incorrect code is used, a buyer is minimising the chances of there being a range of suppliers for them to choose from. They may not be able to choose from varying prices or scrutinise against the MEAT criteria: most economically advantageous tender. Public contracts can be awarded either on the basis of lowest price or MEAT, and buyers have to justify why they have chosen to spend a certain amount of money.

If they have very little to make comparisons on, buyers can end up spending more, either by using an expensive supplier due to lack of choice, or by using the cheapest supplier and getting a shoddy result which may have to be re-tendered for in the future.

For suppliers who supply works, services and supplies in a specific field, if a wrong code is used they are less likely to find contracts that they can tender for. CPV codes are a very specific classification and if the code isn’t correct, the supplier is missing out on opportunities which are destined for them. These could be SMEs who survive on providing specific services, and using the wrong CPV codes doesn’t benefit these niche businesses.

For example, for a contract ‘Collection of key qualitative and quantitative information on the European Commission’s merger decisions’ the code for ‘market research’ (code 79310000) was used, when in fact, something more appropriate like the code for ‘economic research’ (79311400) or ‘research services’ (73110000) could have been used. Due to the misuse of CPV code, the contract was never awarded.

The ill use of codes also affects the public. When work finally passes the business case for approval within an organisation, and for various stages to be passed, the work is still ‘undone’. If the tender needs to be re-advertised, we are looking at a similar timeframe to. Across the UK we are waiting for better roads, new schools, these things are all part of a very long queue.

Time is money. So what help is out there? Suppliers who don’t have access to a comprehensive tender alert service like Tenders Direct could be potentially missing out on lots of business opportunities thanks to incorrect CPV codes.

Tenders Direct is a wide-ranging tender alerts service which relies on a team of tender reviewers reading the contract and then classifying it against a set of key words that ensure tenders are classified to meet supplier requirements. We do not rely on CPV codes, we rely on experienced reviewers who can read between the lines and figure out exactly what work is being tendered for.

Our service helps marry up buyers with suppliers. A supplier is notified of tenders which fit the criteria of work they are looking to deliver, which is the way our service works. With our site, there is less likelihood of suppliers missing out on potential opportunities.

business-1564366_1280

Our procurement experts help make procurement easier, and we take pride in being able to minimise the noise and help a buyer classify what they want, and feed the right opportunities directly into the right supplier mailboxes.

To CPV or not to CPV? That is the question.

Link to Tenders Direct homepage

Posted in General Procurement, Tender Tips | Leave a Comment »

Legal Remedies in Public Procurement – how they are used in Framework Agreements and Call-Off contracts

Posted by emilypirie on November 15, 2016

binding-contract-948442_1920

Framework Agreements allow a contracting authority (buyer) to enter into an agreement with one or more economic operators (suppliers) for a set period of time.  Buyers can run mini tendering exercises to call-off contracts from the frameworks under Regulation 33 of the 2015 Public Contracts Regulations (PCR 2015).  In general, there are legal remedies which can be used where a supplier wants to raise a challenge against the buyer. These remedies operate differently for frameworks and call-offs from a framework. To read more about Framework Agreements, please follow this link to our previous blog.

So what are the remedies available where there is a breach relating to a framework or call off contract? It’s a complicated topic – there are four main remedies which are outlined below:

1. Notification and Standstill

The standstill period offers a 10 calendar day pause from the point when the contract award decision is notified to bidders, and the point when the final contract is finalised, during which time suppliers can challenge the decision and claim the call off from the contract or framework as ineffective. A court may preserve a contract for overriding reasons of public interest as per Reg 103(5) where there is a claim of ineffectiveness.  The ability to challenge the decision is a legal requirement imposed through the remedies directives. It is worth noting that it is not mandatory for a buyer to give notification and standstill for call-offs under a framework, but, they can voluntarily do so for above EU threshold frameworks made after a mini-tender.  Reg 99 states that frameworks will be ineffective where there is an illegal direct award, unless the authority believes it was lawful to do so and a VEAT (Voluntary Ex Ante Transparency Notice) is published and the standstill period is observed. This does not apply to call-offs.

2. Damages

Suppliers are limited to claim damages for call-offs and these can also available when there is a breach of the award of the framework agreement. This could happen when there are lost profits or loss of future profits and bid costs.  Individual call-offs do not require call for competition and cannot be classed as ineffective for failure to publish a call for competition, and in this instance the notification and standstill period would not apply either.

3. Automatic Suspension

A contract arrangement can only be brought to an end as a result of an application made by a buyer to the court requesting suspension of the contract.  If the court considers that automatic suspension is not an option, then it would not be appropriate to make an interim order suspending the award. Attendance at automatic suspension hearings and consequently at hearings to challenge the continuation of automatic suspension, adds substantially to the cost involved and places the emphasis firmly on the balance of convenience and damages as an adequate remedy, which can undermine a supplier’s ability to obtain an effective remedy

4. Freedom of Information

Freedom of Information Act 2000 (FOIA) enables anyone to request information from a public body which is to be answered within 20 days. The exceptions include prejudice towards commercial interests of any person, trade secrets, breach of confidence and where incompatible with EU law or any enactment.

The obligation to disclose information may be difficult when dealing with call-offs from a framework. Under Reg 55 buyers must provide suppliers with their decision in relation to the conclusion of a framework agreement. It is unclear how far this extends to call-offs. Buyers send a notice to those who submit an offer in a mini-competition/mini-tender when a notification and standstill period is applied in above threshold call-offs. The Crown Commercial Service guidance suggests that the notification and standstill information is to be sent to all supplier who consider themselves qualified to bid within 15 calendar days under Reg 55(2) (but it is not clear whether this does apply to call-offs or not).

PCR limits information obligations to suppliers and not to ‘concerned citizens’ or organisations. Only suppliers can seek remedies under the PCR which is a further limitation on enforcement for breach of the PCR, as special interest groups, individuals or trade unions who may wish to seek enforcement are required instead to seek a judicial review route.

Case Study

The first and most recent case in the UK to deal with the remedy of ineffectiveness under the PCR 2015 is of Lightways (Contractors) Limited v Inverclyde Council CSOH 169. The facts of the case are as follows:

  • In 2015 the Council ran a mini-competition and a call-off of a CCS (Crown Commercial Service) Framework agreement for street lighting services. It was awarded to “Amey Public Services LLP”. The contract was entered into and had been previously awarded to this company in 2013.
  • Lightways was not on the framework and challenged the award on the grounds that Amey were not appointed under the framework and the contract award was in breach of Regulation 19(3) of the Public Contracts (Scotland) Regulations 2012, where only call-offs could be made to those appointed to the framework. Amey was in fact a different company, as it was “Amey OWE Limited” that was on the framework.
  • Amey OWE and LLP both had links to Amey, but were substantially different as the LLP company was a joint venture between Amey and Lanarkshire Council, and Amey OWE’s principal activity was in engineering consultancy. Each company had their own assets, employees and were separate.
  • Lightways’ argument was accepted and it was held that they had a right to challenge even though they were not party to the framework. The ruling did not accept the principle of proportionality applied to allow the court to correct the council’s mistake and substitute Amey OW to Amey LLP.
  • The court concluded that the Council had no defence to the challenge under Reg 19(3) and therefore made an order for ineffectiveness. Lord Tyre concluded that the contract had been awarded to a non-framework provider without being advertised and, as a result, a breach of the Procurement Regulations had occurred.

Where an ineffectiveness order is granted, the court is also obliged to fine the contracting authority. At the moment, the level of the fine in this case has not been stated, but it is obviously a concern for authorities in times of austerity. Any fine would be payable along with any with potential compensation payments to the exiting provider as well as potential damages to the challenger – so it could get costly. Inverclyde Council have been granted leave to appeal and, at present, the ineffective contract will continue until the appeal has been resolved.

Overall, the UK does seem to provide a satisfactory system of legal remedies with regard to the Public Contracts Regulations 2015 While the range of remedies appears satisfactory, there is a relatively small number of reported procurement judgements in the UK.  This can also suggest that the system is not being used to its full potential.

Posted in General Procurement, Procurement Law | Leave a Comment »

 
%d bloggers like this: