Winning Work From Public Authorities
Everywhere you go there are roadworks, regeneration of urban areas and new public buildings. Have you ever wondered how the contractors manage to win those lucrative contracts and how our tax payers’ money is spent?
Do you want to be involved in a big project, but don’t know how these contracts are awarded? Well, there are processes that govern how public money is spent, and accountability for award of the contract.
Organisations spending public money, such as local authorities, the police, the Highways Agency and the NHS (who are known as the Contracting Authority) must follow strict rules when advertising and awarding contracts for services, supplies and works (such as construction and civil engineering) to ensure that contracts are awarded on an open, competitive and non discriminatory basis. This is known as public procurement.
Contracts for works costing over £4million and services and supplies over £160,000 must be awarded in line with specified procedures that include
- the Open Process, where all interested parties can submit tenders
- the Restricted Process where only those invited by the Contracting Authority can apply
- the Competitive Negotiated Process, where the Contracting Authority negotiates the terms of the contract with one or two suppliers of choice (this is only available in limited circumstances) or
- the Competitive Dialogue Procedure, only used for particularly complex contracts
Each process has a strict time table, starting with the publication of the advert for the tender setting out detailed description of the contract, the criteria used for the award and timescales to short-listing tenders, informing the unsuccessful candidates and finally the contract award.
All tenders are advertised on the Tenders Electronic Daily website – http://ted.europa.eu/ for all interested parties throughout the EU (and beyond) to see.
The Contracting Authority must avoid a myriad of pitfalls including, breaches of the strict advertising and award timetable, discriminatory practices such as giving one candidate more information or inside information than the other and giving more credit to some areas of experience than others.
If the tender procedure is not correctly followed, an unsuccessful tenderer may have grounds for challenging the award. Use of the Freedom of Information Act can provide information about the award process and the successful tenderer.
A challenge delays the contract award and results in uncertainty, wasted costs and time. There are consequences for both the company awarded the contract, who may be unaware that the procedure was not properly followed, and for third parties who may have unsuccessfully tendered for the contract, who have a claim for damages if they have missed out on the award due to breach of the rules.
So, if you wish to tender for public contracts, get confirmation that the Procurement rules are being complied with. And if you have been unsuccessful in your tender, and think this is unfair, you could consider if there are grounds to challenge the contract award, and whether you have grounds for a damages claim. But be warned – there are very tight time limits for challenging an award – just two days from the rejection letter otherwise it is very difficult to overturn it.
Contact Rachel Robinson for further information or advice.
Published 03/07/2008. The author of this article is Rachel Robinson
