Pre-Procurement Tips from Mills & Reeve
We attended law firm Mills & Reeve’s latest webinar in their great ‘Five in Twenty Five’ series - this one focuses on the pre-procurement phase of public procurement.
By Joe Fuller
The ‘Five in Twenty Five’ format sees five questions answered in quick-fire five minute sections. Every instalment in the series is available to watch online via their website.
We outline key talking points from their November webinar, which focuses on the pre-procurement phase of public procurement.
1) How can we use pre-market engagement to help us?
Shailee Howard, Principal Associate:
Authorities engage with the market to shape the requirements, which can also be helpful for bidders in understanding the authority’s approach. When done correctly, it is a two-way exercise with benefits for both sides. Questions regarding the requirement can be discussed in the pre-tender phase, which can mean less time going through Clarification Questions while the tender is open.
Talking to SMEs and VCSEs during pre-market engagement can also help in learning more about who will benefit from the contract [i.e. Social Value], and they can also discuss potential innovations they could bring to the work. It might also enable prime contractors to form links with them in the supply chain.
2) Can we ask our incumbent supplier to help us design the re-procurement?
Claire Gamage, Principal Associate:
It depends! With some contracts, the incumbent is obliged to co-operate. There might be relevant TUPE information and other data that could help. The incumbent might be able to help regarding a “debrief” of the contract to discuss lessons learned [often referred to as Knowledge Transfer in CCS’ guidance], and the incumbent might be able to help draft documentation too. It can be risky expecting bidders to know what the incumbent knows, however.
3) How can we create a level playing field when the incumbent supplier clearly has an advantage?
Jenny Beresford-Jones, Professional Support Lawyer:
It is probably not possible to create a level playing field. In a case where Proof IT argued that the incumbent had an unfair advantage through necessarily having more knowledge of a contract over competitors, the court said it wasn’t unfair and accepted that an incumbent has a “natural advantage”. Case law therefore may credit the incumbent with “knowing what it knows” as a result of performing the contract. [Further information regarding the interesting Proof IT case can be found here.]
4) What are Prior Information Notices (PINs)? When should we use them, and why?
PINs can “warm up” the market, by notifying the market of forthcoming opportunities. They are also a relatively easy way to evidence a transparent, non-discriminatory and equal treatment approach to procurement.
PINs are required to have certain info to abide by EU regulations. This includes the name of the contracting authority, a website link where suppliers can get further info, and where results of the procurement can be obtained. The parameters do not need to be set in stone for a PIN, but the contract value is useful.
5) What type of activities can be undertaken as part of pre-market engagement?
Claire: There are no prescribed methods. but common methods include PIN advertising engagement events, Authority presentations, Live discussion forums/roundtable discussions, Publishing/circulating questionnaires, and more.
Keep in mind that such engagement should not simply be a “box ticking exercise”: it should be an interactive process to inform the procurement. Make sure that any feedback obtained is evident in the design of the procurement and docs.
Mills & Reeve have recently published a very helpful Q&A document from the webinar, with more detailed questions and answers relating to pre-procurement. They have also published slides for the November webinar, and the full archive for their 5 in 25 series can be found here.