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Services Contracts
Guidance for Tender Board Members and Evaluation Teams on Tender Board Procedures
ã Issued by ProjecTeam Ltd T: 0161-766-8709 F: 0161-766-6620 E-mail: mdrake@projecteam.co.uk www.projecteam.co.uk
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TENDER BOARD PROCEDURE
SECTION 1: THE TENDER BOARD
2. Constitution
3. Responsibilities of the Board
4.
Structure of the
Proceedings
SECTION 2: THE OTHER KEY
PLAYERS
1. The Project Steering Group
2. The Project Team
3. The Evaluation Team
4.
The In-House Team
SECTION 3: KEY
ISSUES
1. Project Organisation
2. Contract Background
3. TUPE
4. Trade Union Consultation
5. Commercial Competition
6. The Tendering Exercise
7. The Evaluation Process
8. Evaluation Issues
9. Evaluation Findings (Price & Quality)
10. Financial and Contractual Issues
11. Post Contract Management
12. Audit Trail
Appendix A Tender Board Members Declaration
Appendix B
Tender Board Members Sample Check List
SECTION 1: THE TENDER BOARD
1.1
Introduction
How tenders are awarded needs to be both consistent and transparent. This guide has been written in order that both these requirements can be met.
The Tender Board procedure should be made available on request to any tenderer or potential tenderer.
The Evaluation Panel should be aware of the role played by the Board and anticipate having to respond accordingly.
1.2
Constitution
1.2.1 The Board normally comprises a chairman, usually the senior manager with the overall responsibility for the procurement of the service. The chairman must have had no part in the tendering procedure prior to the Tender Board. One or two members of the Board should represent the customer for the service. There should also be a financial and contracts representative, again these people should have had no detailed involvement in the tendering procedure.
1.2.2 A secretary should be appointed who is familiar with the tendering process and able to follow the matters being discussed (see 3.2).
1.2.3 Where large sums of money are involved consideration should be given to including on the Board an outsider to the Trust who is familiar with contracts of the nature being considered. This could be from another Trust or an independent consultant.
1.2.4 All members of the Board must sign a declaration, see Appendix A, confirming that they have no personal interest in the outcome of the Tender Board.
1.3
Responsibilities of the Board
1.3.1 The Board should ensure that a full, fair and open competition has been conducted and that the decision on the award of contract is based on objective criteria clearly stated to tenderers in the procurement documentation. The Board must ensure that the decision is able to stand up to audit, public scrutiny or any challenge of anti-competitive behaviour.
1.3.2 In the event of any challenge, the first of the documents to be examined will be the record of the Tender Board’s deliberations. The Board will have received a written submission from the Evaluation Panel, which will form part of the permanent record, and should also arrange for a full account to be kept of the day’s proceedings. This need not record verbatim the presentation made by the Chair of the Evaluation Panel, as much of that will duplicate what is in the Evaluation Panel’s report, but all questions and answers should be recorded to demonstrate that the Board has been thorough.
1.3.3 As well as examining such detail as it wishes, the Board should take a high level overview to ensure that the recommended outcome hangs together. The Board holds a powerful position, and should only accept a recommendation if there are no reservations. The Board’s options are to :
v agree the recommendation, or
v overturn the recommendation and substitute another, or
v require the production of further clarification, or
v order a retendering exercise.
The contracting expert should be capable of providing advice regarding the implications of the various alternatives.
1.3.4 The Board must be satisfied that the contract can be awarded as presented to the Board. In particular that the bidder selected has all the necessary internal approvals, such as their legal department, to enter into the contract. There should be nothing outstanding to agree, any changes to the original tendered document should have been word processed into the contract and the Form of Agreement signed to signify acceptance of the changes since the tender submission.
1.3.5 In the event that two bidders are in close contention and it is conceivable that the Board may wish to award to the Evaluation Panel’s second choice (this could well be the case if the Evaluation Panel are not unanimous in their opinion) then the two front runners should be taken to contract award status but clearly with no suggestion of commitment on the part of the Trust.
1.3.6 The Board may wish to record any action which is needed to ensure that identified resultant savings are realised in practice.
1.4 Structure
of the Proceedings
1.4.1 At least seven days prior to the Tender Board date the Evaluation Panel must submit their Evaluation Report to members of the Board for their consideration.
1.4.2 On the day of the Board, prior to the attendance of the Evaluation Panel, the Board chair, or appointed nominee, should give members an initial briefing. The briefing should draw the members’ attention to their responsibilities and bring to their attention any particular issues that might need to be addressed in detail.
1.4.3 After introductions, the chairman of the Evaluation Panel will normally make a presentation to talk through the process and highlight the key issues.
1.4.4 The Board should raise questions, either during the presentation or at the end, to ensure that the full process has been beyond reproach. The Board needs to be satisfied that the key issues such as those contained in Section 3 have been adequately addressed.
1.4.5 Prior to the Board sitting a checklist should be prepared in order that as far as it is possible to do so there is a consistency in the way individual members of the Board record information on the key issues. An example of how this can be done is contained in Appendix B.
SECTION 2: THE OTHER KEY PLAYERS
2.1 THE PROJECT STEERING GROUP
2.1.1 This “Tender Board Procedure” document assumes that on a large project the Trust will establish a Steering Group who will decide the main strategic issues. They will meet as required, expected to be monthly.
2.1.2 The Steering Group should consist of high level personnel not directly involved in the tendering process.
2.2 THE
PROJECT TEAM
2.2.1 The Project Team is responsible for the preparation and issuing of the tender documents. The designated Project Manager for when the contract is let, should be a member if not the leader of the Project Team.
2.2.2 The Project Team leader reports to the Steering Group.
2.3 THE
EVALUATION TEAM
2.3.1 The Trust must establish an Evaluation Team. The Evaluation Team should include at least one member of the Project Team. In addition, financial and user side expertise should be represented on the Evaluation Panel.
2.3.2 The basis on which the tenders are to be evaluated should be agreed and signed off by the Steering Group prior to the receipt of tenders.
2.3.3 The Evaluation Team leader reports to the Tender Board.
2.4 THE
IN-HOUSE TEAM
2.4.1 At the very outset the “Client side” of the Trust must establish an In-House Team which is separated from the “Client side” (including in particular the Project Team) by a Chinese wall. To all intents and purposes the In-House Team should be treated the same as other tenderers. This is important for fair competition, in comparing the In-House bid with other tenders, and for holding them to their proposals for the provision of the service. So far as possible, they should therefore receive the same tender documents as an external bidder. It is accepted that in some respects the legal provisions must be different, therefore the Trust should establish a common set of Service Level Agreement conditions which would be applicable wherever an In-House Team is successful.
SECTION 3: KEY ISSUES
The key issues will vary according to the
circumstances of the individual project. The questions set out below should
therefore be modified accordingly.
3.1 PROJECT
ORGANISATION
3.1.1 Were the views of all interested parties represented on the Steering Group?
3.1.2 Were all key decisions endorsed by the Steering Group?
3.1.3 Was there a formal separation between Client Side and the In-House Team to ensure fair treatment of external and internal bidders? (Only applicable to a market testing situation or where the Trust allows the opportunity for the service provision to return in-house)
3.2 CONTRACT
BACKGROUND
3.2.1 Describe the work done on the feasibility study.
3.2.2 How were soundings taken of the commercial market, and what steps were taken to maximise competition?
3.2.3 How were users' requirements taken into account?
3.2.4 Was it necessary to involve groups other than users, who nevertheless had an interest in the outcome?
3.2.5 Were contractors consulted on the development of the specification?
3.2.6 Who approved the final procurement strategy?
3.3
TUPE
3.3.1 What was the legal advice on the application of TUPE?
3.3.2 Has anything within the return of tenders changed the legal opinion about TUPE?
3.3.3 How did the ITT documentation handle the TUPE issue?
3.3.4 What views did the bidders give on the TUPE issue?
3.4 TRADE UNION
CONSULTATION
3.4.1 How and when was the Trade Union Side consulted?
3.4.2 On what aspects did you consult (particularly TUPE and the content of the specification)?
3.4.3 Has the Trade Union Side indicated any dissatisfaction with the level of consultation?
3.5 COMMERCIAL
COMPETITION
3.5.1 Was it necessary to advertise in OJEC and how exactly was the tendering exercise advertised ?
3.5.2 What was the response from the market place?
3.5.3 Explain the procedures followed to reduce the number of prospective tenderers to those on the final tender list.
3.5.4 Were TUPE and contract strategy issues addressed with the contractors during the pre-qualification stage?
3.5.5 If any contractors dropped out after being short listed to tender, what action was taken to address their concerns and / or their reason for withdrawal?
3.5.6 Were all matters as to financial viability, ability and technical capacity resolved in respect of each tenderer before issuing the ITT?
3.5.7 Have any of the tenderers raised any doubts or caused you to change your view as to their financial viability, ability or technical capacity as a result of anything in their tenders?
3.6 THE
TENDERING EXERCISE
3.6.1 When was the ITT issued, and how long was allowed for responses?
3.6.2 Did this timescale reflect best commercial practice, and did any of the bidders seek an extension in the period for responses?
3.6.3 Did the bidders seek any clarification of the ITT documentation?
3.6.4 Did all bidders see all the clarification issued?
3.6.5 Were any Amendments to the tender documents issued and, if so, have the bidders confirmed in the “Form of Tender” that the Contract Price includes the Amendments?
3.6.6 Do the tenders finally submitted indicate that any bidders have misunderstood the service or pricing requirements? If so, has consideration been given to reissuing the ITT?
3.7 THE
EVALUATION PROCESS
3.7.1 Describe how the evaluation process was organised.
3.7.2 Did the Steering Group approve the evaluation process and agree the scoring to be used.?
3.7.3 Were the criteria agreed before opening the tenders?
3.7.4 Were all personnel involved in the evaluation given formal training?
3.7.5 How was the financial evaluation and equalisation conducted?
3.7.6 Were all members of the Evaluation Panel asked to declare any personal or financial interest?
3.8 EVALUATION
ISSUES
3.8.1 Was it necessary to seek clarifications from the bidders? Explain.
3.8.2 Has any bidder declared any intellectual property rights in relation to any system proposed to be used in providing the service?
3.8.3 Is any bidder strongly dependent on using a particular sub-contractor? Is there a risk of the bidder being unable to provide the service if the proposed sub-contractor collapses?
3.8.4 Are you satisfied as to the financial viability, ability and technical capacity of all sub-contractors identified in the tenders?
3.8.5 If TUPE applies, what is the situation with regard to the bidders providing comparable pensions?
3.8.6 If the In-House Team is proposing sub-contracting, have they complied with the Government Purchasing guidelines in selecting that sub-contractor, and is a proper contract ready to be put in place?
3.8.7 If the In-House Team is proposing “buying back” staff time from within the Trust, is there documentary evidence to confirm that arrangement?
3.8.8 If any of the services are to be provided off site, have you addressed possible concerns about security, fire precautions and the ability to retender?
3.8.9 Has comparison on a like for like basis been possible?
3.8.10 What, in the Evaluation Panel’s view, were the key issues raised during the process?
3.9 EVALUATION
FINDINGS (PRICE & QUALITY)
3.9.1 Has the tendering exercise produced a fair and open competitive test?
3.9.2 Is the winning bidder able to deliver the required minimum level of quality services?
3.9.3 Has there been a fair comparison of the bidders’ prices?
3.9.4 Does the outcome strike a fair balance between costs and quality to produce value for money?
3.9.5 Have all risk factors been addressed, for example:
Ø an external contractor delivering what has previously been an In-House service
Ø if the In-House Team proposes using fewer resources, are you sure they can deliver the required service?
Ø if In-House Team proposes changing working patterns or conditions of employment, are you sure they can deliver them?
3.9.6 Were the members of the Evaluation Panel unanimous in agreeing the recommendation to the Tender Board? If not, give details of dissentions.
3.10 FINANCIAL AND
CONTRACTUAL ISSUES
3.10.1 Has the recommended winner signed the Form of Agreement and initialled each page of the proposed Contract without the need of any further negotiation?
3.10.2 Have any changes been made to the standard terms and conditions, if so what were they?
3.10.3 Has the proposed Contract / SLA been approved internally?
3.10.4 Can the full cost of the contract, including any necessary contingency for changes, be met from existing budgetary baselines? The contract management arrangements must also be met from that baseline?
3.10.5 If costs exceed baseline has a business case been made out for services improvements, and can the cost be met by the budget holder?
3.10.6 What is the level of savings, in cash and % terms, expected to be generated over the life of the contract?
3.10.7 Will steps be taken to ensure that identified resultant savings (eg disposal of surplus accommodation, reduction in personnel overheads etc) are achieved in practice?
3.11 POST CONTRACT
MANAGEMENT
3.11.1 What management systems will be put in place?
3.11.2 Has the necessary training for the contract managers been put into place?
3.11.3 If an In-House winner is involved, are systems in place to ensure that non-contract staff are not used on contracted work, thereby providing a hidden subsidy?
3.12 AUDIT TRAIL
3.12.1 Has a full and formal documentary record of the project been maintained, and will it be filed and secured to enable independent examination of the process?
1. I understand that the deliberation and decision of the Tender Board in evaluating tenders must be based on objective criteria applied fairly to all tenders. I recognise that the contracting authority should be able to demonstrate the absolute impartiality of all members of the Board.
2. I declare that I have no personal or financial interest in any of the Tenderers whose tenders are to be considered by the Board and that there is no other matter of any kind that could affect my impartiality, or that might be considered capable of affecting my impartiality, as a member of the Board.
I understand that in this context:
a) “personal interest” includes any family or social connection with any person employed by the Tenderer or engaged by the Tenderer to provide any services in connection with the preparation of the tender;
b) “financial interest” includes the ownership of shares and any other means or opportunity to acquire any direct or consequential financial gain;
c) “Tenderers” includes the members of any consortium tendering for the proposed contract and any proposed sub-contractors identified in the tenders.
3.
I understand that any
interest or matter referred to above would disqualify me from membership of the
Tender Board. I understand that failure to declare any such interest or matter
would be in breach of my duty to the contracting authority and could lead to
legal action by an unsuccessful Tenderer. I recognise that the court would have
power to quash the contracting authority’s decision on the award of contract if
it had not yet entered into the contract; and that, if it had already entered
into the contract, the contracting authority could be ordered to pay damages to
the unsuccessful Tenderer in respect of any loss sustained as a result of the
contracting authority’s breach of duty.
SIGNED:
Name:
Date:
Organisation/Division/Section:
TENDER BOARD MEMBERS SAMPLE CHECK
SHEET
(The Key Issues used are taken from Section
3)
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KEY ISSUE |
ACTION REQUIRED |
ISSUE ADDRESSED |
COMMENTS |
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1 |
PROJECT
ORGANISATION |
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2 |
CONTRACT
BACKGROUND |
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3 |
TUPE |
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4 |
TRADE UNION
CONSULTATION |
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5 |
COMMERCIAL
COMPETITION |
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6 |
THE TENDERING
EXERCISE |
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ã Issued by ProjecTeam
Ltd Tel: 0161-766-8709 Fax: 0161-766-6620
E-mail: mdrake@projecteam.co.uk www.projecteam.co.uk