Clarification: An integral part of the procurement process
Early clarification of procedures reduces procurement challenges in Northern Ireland, says Lisa Boyd, Partner at Gateley Tweed.
Often tenderers don’t raise clarification queries for fear of “annoying” those later responsible for assessing their bids. However, that couldn’t be further from the truth.
The purpose of clarification is firstly, to ensure that tenderers have all the correct information and, secondly, to allow authorities opportunity to address any deficiencies before it gets too far along the road. Tenderers often know the service better than those procuring it and therefore are better placed to identify issues. Clarification is therefore an integral part of the procurement process and one that tenderers should fully engage in and not wait to see the results first.
No one would be surprised that authorities take advice on procurement procedures, strategies, contracts and documentation before going to tender. However, many tenderers set about reviewing tender documentation worth multi-millions themselves without any legal input. Commercial entities are unlikely to do this when contracting with another commercial entity so why take a different approach when entering a contract with a public sector body.
An early legal review of tender documentation and contracts can be a useful tool to identify clarification queries that should be sought from the authority. It can flag up potential issues that may arise both within the tender process and within the lifetime of the contract. It allows early resolution and seeks to avoid, or at least minimise, procurement challenges either at the award stage or on the amendment of contracts during their lifetime.
Tenders should be mindful that the time limit to issue a procurement challenge is generally 30 days from the date of deemed or actual knowledge. This generally means that issues arising in respect of the structure of tender cannot be raised at the time of standstill letter as they will be out of time. This further strengthens the importance of proper due diligence at the time of tender and can in some cases mean that proceedings must be issued before a tender has even been submitted.
Inevitably, clarification and due diligence of tender documentation by tenderers will not eliminate all procurement challenges but it could help to reduce them.
Gateley Tweed is running a series of free webinars on public procurement, primarily aimed at the tenderer perspective, to increase the understanding of the tendering process. Please register at www.gateleyplc.com/public-procurement-webinars for further information.
Lisa Boyd, Partner
T: 07706 320 748