Lack of transparency in public procurement processes is potentially unlawful in itself, but can often lead to problems later down the line.
For contracting authorities, it is important to know how much information to give. For bidders, it is important to know when to seek clarification, and in particular, often risky to adopt a "wait and see" approach.
The clarifications process which is incorporated into most public procurements is an excellent tool. It enables bidders to address any problems in a non-confrontational manner and avoid prejudice to their bid at evaluation stage.
Equally, contracting authorities may have to contend with unclear, and potentially non-compliant tender responses from bidders. The decision whether to exclude bidders on that basis, or to ask for clarification, can be fraught with danger and risk of challenge.
Whether you are a contracting authority or a bidder, our team of experts can advise you how to successfully manage the clarifications process.
Whether you are a contracting authority considering its transparency obligations, or a bidder considering whether or not to seek clarification, we can assist you with:
- reviewing tender documents and evaluation criteria in order to advise on any issues that might amount to a breach of transparency
- drafting clarifications to contracting authorities
- advising on the ability to clarify unclear or ambiguous tenders in light of EU and UK case law
- advising on transparency and debriefing obligations at standstill stage - from both a bidder seeking information and authority perspective.
We advised an NHS Trust on its ability to reject a tender that included a caveat as to the price submitted. This included weighing up the risk of challenge to a decision to revert to the bidder to obtain clarification, versus a risk of challenge to a decision to exclude the bidder outright.
We advised a bidder on requirements set down in tender documents regarding the ability to act as both prime contractor and sub-contractor, which remained unclarified following the clarifications process. We assisted the bidder with drafting a letter during the tender process. This presented concerns regarding the lack of transparency. The local authority clarified the position and removed the constraint.
Advice on lack of transparency
We advised a bidder on lack of transparency at ITT stage relating to journey data. If left unclarified, it would have resulted in bidders submitting prices on different assumptions, making a "like for like" comparison impossible.
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