Head of Dispute Resolution | Head of Procurement | Banking and Finance
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As a Procurement Team, we’ve acted on many procurement disputes (often high profile), and quite frequently see similar issues arise. We've drawn on our wealth of experience in this regard to pull together some 'top tips' for awarding bodies involved in procurements where the public procurement regime applies. Read on to find out more.
If so, have you taken sufficient steps to level the playing field for all other bidders?
If so, whilst publishing points of clarification is helpful, this may be an indication that the entire section in question is unclear and that different bidders may reach different interpretations of it. Consider whether you are better off re-drafting and re-issuing it before bids are submitted as this may save time and money down the line.
If these changes are ‘material’, it’s likely that you will need to run a fresh tender process. It can be tricky to identify when a change is material. A material change is one which alters the essential terms and/or the overall nature of the original contract. Depending on the circumstances, an example of a material change might be a change in the scope of the contract to include additional goods/services, or a considerable extension to the original contract term.
It’s important to have clarity on the steps that you are able to take to regularise the position and in respect of the message that should be given to the bidders – we recommend seeking advice on this promptly to minimise the risk of challenge down the line.
These issues are high on the Government’s agenda and will be key areas of focus for bidders and awarding bodies alike – for more information, see our Insight on PPN 06/21.
Keep an eye on this! Our recent Insight explained that, in October 2021, the Cabinet Office indicated in an update that its thinking had changed in several areas as a result of feedback on the proposals, and that it would publish a summary of the responses received and details of what the Government intended to do in response. The Government’s response to the consultation was subsequently published in December 2021, and it’s clear from this response that some of the original proposals in the Green Paper have been further clarified or amended based on the feedback (such as in respect of the scope and application of the Light Touch Regime). Whilst a Bill is unlikely before the second half of 2022, and we don’t expect any new legislation to be passed before 2023, being prepared to implement major change and having sufficient training in place for all staff involved will be key to a smooth transition to the new procedure.
You can get in touch with our experts on the details below If you'd like to discuss any of the above points further with us, or you need some advice on a procurement that you're involved in.