When you are writing a tender, it is natural to focus on completing the SQ, the quality questions, and your financial submission. But have you ever considered any of the small print clauses within the tender documents, and what they mean?
While you do need to put forward a compelling, persuasive tender, none of this will be of any use unless you ensure you are compliant. This requires a solid understanding of the small print and the key clauses within the documents, some of which may have an associated form to complete, sign and include within the final submission.
Confidentiality clauses generally relate to a requirement to keep details of framework and contract agreements, and associated documents, private, and not to disclose them to unauthorised parties unless the information is already available within the public domain. Dissemination to internal staff for the purposes of contract and service management is of course acceptable, as is providing documents to any bid writers who may be assisting you.
In some cases, you may be required to obtain a signed non-disclosure agreement from any parties with whom you share information, as evidence of your compliance with the authority’s data protection requirements.
Non-collusion clauses typically cover a range of situations in which a tenderer is not submitting a bona fide tender, and could be trying to control the procurement process to alter their, or another bidder’s, chances of success. Practical examples include:
- Entering into agreements with other bidders to either prevent them from bidding, or to fix their prices to help you win
- Reducing the number of bidders by offering sub-contractor works to businesses who promise not to bid themselves
- Disclosing your pricing to any unauthorised parties with the intention of influencing them (disclosure in confidence to insurers, banks for performance bonds, and professional advisors are generally excepted from this)
- Seeking to ‘divide’ the market by agreeing with other bidders to bid for alternate projects for mutual benefit.
Non-collusion encourages a spirit of bidding in an honest and competitive manner to ensure the authority receives a range of high quality tenders to help them choose the best value for money for them and their stakeholders.
Non-canvassing clauses refer to communication with procurement officials with the intention of influencing contract award or obtaining information which may not necessarily be available to other bidders. Examples include communication with the authority through unofficial means (such as telephone calls and emails) as opposed to through official correspondence/clarifications through the portal or authorised email addresses.
It could also extend as far as attempting to bribe and corrupt officials through payments and other inducements under the Bribery Act 2010 and the Prevention of Corruption Act 1889-1916. Whilst canvassing evokes the images of secret deals made on golf courses, the implications can be very serious, including 10 years’ imprisonment under the Bribery Act 2010, as well as being unable to act as a director in the future. As such, you should maintain transparent and fair behaviour throughout the tendering process to prevent any allegations of canvassing from arising.
Conflict of interests
Conflicts of interest typically arise from a bidder knowing someone who works at the contracting authority, or knowing procurement officers, leading to the risk of potential influence or bias at the expense of other tenderers. Therefore, organisations are usually asked to complete a schedule of any family members or friends who work at the contracting authority, or to disclose any potential conflicts of interest which may affect the partiality of the decision-making process.
Another potential conflict of interest could arise from bidding for a contract as an incumbent, and using the existing contract manager as a referee as evidence of your technical ability. This can be a barrier to bidders using their preferred reference, with the rationale being the perceived lack of impartiality, resulting in the need to use other references for fairness.
By knowing the small print of each contract, as well as the authority’s requirements, you gain more information which helps enhance your understanding of assessment criteria. Most importantly, you can ensure that you meet the legal requirements for participating in a tender, and remove the risk of your submission being rejected for reasons of non-compliance.
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Posted on 07-01-2022