Time for some feedback
Richard Brooks looks at the issues around providing feedback to bidders under the new Procurement Bill.
Many contracting authorities encounter two issues in providing feedback at the end of a regulated procurement process:
- It takes significant procurement team resources to collate and construct proper feedback, particularly in setting out the ‘characteristics and relative advantages’ of the successful bidder(s) to give to the unsuccessful bidders under the current regime; and
- Where poor quality feedback has been provided (for example, suggesting that the procuring entity may not have considered the bid in accordance with the requirements in the procurement documents), this often leads to procurement challenges.
Let’s assess this…
The feedback obligations in the new Procurement Bill (the Bill) require an ‘assessment summary’ to be provided to each bidder before the contract award notice (which starts the standstill period of eight working days) is published. This must contain ‘information’ about the contracting authority’s assessment of the bidder’s tender, and the ‘most advantageous’ tender (if different) submitted.
It is unclear exactly what information must be provided, but it is a reasonably safe assumption that there needs to be sufficient information to allow bidders to understand the award decision taken and to show that the contracting authority has fulfilled the procurement objectives of treating suppliers equally (set out in section 11 of the Bill). For most procurements, this is likely to be a couple of sentences for each award criterion, summarising the reasons for each unsuccessful bidder’s score together with the scores of the most advantageous tenderer, alongside numerical feedback on the pricing score. We will have to wait and see if any regulations issued under clause 86 will clarify the information that needs to be included in these assessment summaries.
There will be no obligation to provide information which compares the tenders. This is helpful from a resourcing perspective. Contracting authorities will be able to transpose the notes from the moderation process more easily into the assessment summary, without having to go through a further comparison exercise. However, holding a tight reign over the evaluators, to ensure the right information is being considered against the criteria, requirements and scoring matrix will still be absolutely essential to avoid a procurement challenge.
It is not clear why the Bill requires feedback to be provided only about the ‘most advantageous’ tender which has been submitted – this is a change because the current regulations require feedback about the ‘successful’ bidder(s). If the top three bidders are to be appointed to a framework, the fourth-placed bidder will want information giving a fair and transparent summary of the reasons for all the successful bidders’ scores. This seems to be an ‘obvious error’ (of which we have found several in the Bill) so it will probably be corrected through amendments to the Bill.
Our assessment is…
Overall, the slightly simplified approach to feedback is to be welcomed. It should remove what was a time-consuming requirement to provide comparative information. It is also a considerable improvement on the proposals at the Green Paper consultation stage, which suggested that a series of notices would need to be published containing feedback information.
The fundamental requirement to provide accurate feedback showing that bids have been considered properly in accordance with the procurement documents will remain. Doing this well cannot be avoided if contracting authorities want to avoid procurement challenges.
Richard Brooks is a partner at Anthony Collins Solicitors.