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Skeletons in the cupboard - New policy on taking account of a bidder's past performance

Paul Barton
17/01/2013

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United Kingdom

Skeletons in the cupboard - New policy on taking account of a bidder's past performance

This article was first appeared in Supply Management, 1 January 2013

2012 was an interesting year for public sector procurement and outsourcing arrangements. G4S and the West Coast mainline fiasco took centre stage and the Government is keen to avoid an encore. 

From 8 November 2012 Departmental Bodies are required to assess a bidder's previous performance before awarding certain new contracts. This new government policy applies to the award of all contracts for the purchase of information and communications technology, facilities management or business process outsourcing where the total anticipated contract value will be more than £20 million.  The Cabinet Office has published a Procurement Policy Note (PPN) that sets out implementation details and actions to be taken by Departmental Bodies to comply with the policy.  The PPN can be found here; Taking account of bidders past performanc PDF   

Here are some top tips on how to deal with the new policy:

1. Tell bidders how the policy will be applied in your procurement

A Departmental Body must include information about the new policy in all relevant procurement documentation.  Bidders should consider published documentation carefully to establish what the minimum standards of reliability are in the context of the goods/services being procured and tailor their submissions accordingly.

2. Assess the whole supply chain against the minimum standards of reliability

Departmental Bodies should assess the past performance of sub-contractors, the other members of a bidder's consortium and group companies the bidder is part of. Even if a sub-contractor is delivering a small aspect of the contract its past performance will have an impact on the overall assessment of the bid. Bidders should consider applying the specified minimum standards of reliability for a certain contract to its supply chain and weed out non-compliant or poorly performing sub-contractors before including them in a tender response. 

3. Seek evidence of good performance 

Bidders should emphasise their good track record by obtaining certificates from Departmental Bodies which they have successfully worked with previously. If such certificates are not forthcoming, a supplier could always self-certify. Bidders will need to satisfy Departmental Bodies that any previous poor performance would not occur in the contract being procured.  The Cabinet Office will be creating a central repository of such certificates and related information against which Departmental Bodies can verify information supplied by Bidders. 

4. Re-assess compliance at key stages of the procurement process

The suitability of the bidder may be assessed more than once at different stages in the procurement process taking into account material changes to the bidders' circumstances. Bidders should be asked to update evidence previously provided to reflect more recent performance on existing or new contracts.

5. Exclude Bidders with care

In deciding whether to verify information provided by a particular bidder, and in conducting such verification, Departmental Bodies must ensure that bidders are treated equally, transparently and without discrimination.  Use an appropriately qualified panel to determine whether a bidder meets the minimum standards set, document the decision with rationale and where appropriate seek legal advice before excluding the bidder. In some circumstances it may be appropriate to allow the bidder to make representations.

Paul Barton is a partner in Fieldfisher's Technology and Outsourcing Law Group.

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