Public authorities and so-called public law bodies, including non-profit housing organizations, will sooner or later come into contact with procurement rules. In our experience, the best results and the safest procurement process are achieved if we are involved as advisors from an early stage of the procurement process.
In a procurement process, we can advise contracting authorities by, among other things:
- Assess whether there is an obligation to tender
- Helping to choose the type of tender and plan the tendering process
- Advise on which pre-qualification requirements and selection criteria will be relevant
- Prepare the tender documents - including the contract notice, tender specifications and contract documents
- Design the award criteria and scoring models
- Perform bid evaluation and scoring and manage the contracting process
Is there an obligation to tender?
Whether or not there is a procurement obligation will depend, among other things, on whether the buyer is considered a contracting authority covered by the procurement rules, whether the service to be purchased is covered by procurement legislation and whether the value of the contract exceeds the so-called threshold values. Assessing all 3 criteria can be very difficult. CLEMENS' procurement lawyers have extensive experience in this task and ensure that the issue is as clear as possible before a decision is made on the procurement.
What type of procurement?
For the contracting entity, there will typically be a number of different options for choosing the form of procurement. However, the number of options available to the contracting entity depends on the specific circumstances. When choosing the form of procurement, it is important to consider the type of service to be purchased. Certain standardized services can typically be procured using one type of procurement method, while more complex services will typically require procurement using another type of procurement method.
Selection criteria
The selection criteria are the requirements that a tenderer will have to meet in order to be considered suitable to enter into and perform the contract. It is important that care is taken when deciding on the selection criteria, as these will determine which tenderers will ultimately be allowed to submit a tender.
CLEMENS advises in this regard:
- Whether a pre-qualification procedure would be necessary and/or appropriate for the procurement in question
- Which selection criteria should be applied in more detail
The award criteria
When a contract is to be awarded, this can be done either on the basis of the "lowest price" criterion or the "most economically advantageous tender" criterion. If the criterion "the most economically advantageous tender" is used, the contracting entity must state in the tender documents which sub-criteria the contracting entity will emphasize. At the same time, the contracting entity must, as a general rule, state how the sub-criteria are weighted. In connection with the preparation of the description of the award criteria in the procurement documents, it is also important to describe a clear and unambiguous model for how the contracting entity will award points to the individual tenders.
CLEMENS assists with:
- Design of the contract notice
- Drafting of the tender specifications
- Design of the award criteria
- Designing the scoring model
Awarding a contract
In order for a contracting entity to award a contract, the contracting entity must carry out an in-depth assessment of the tenders received. This means, firstly, that the contracting entity must assess whether the submitted tenders are compliant. This assessment can be difficult, as there may be matters that are to be considered as reservations or as subordinate tenders, and depending on how the specifications are formulated, such reservations and subordinate tenders will not be admissible. Next, the contracting entity must assess the compliant tenders in relation to the described award criteria, and in this connection, an evaluation report must be prepared so that the contracting entity can document at any time how points have been awarded in relation to the specific tenders.
During this phase, CLEMENS can assist the client with:
- Condition assessment
- Preparation of an evaluation report
- Assessment/evaluation of the offers
- Preparation of award and rejection letters
Contract signing
Once an award has been made, the contracting entity must enter into a contract.
In this context, CLEMENS offers to:
- Manage contract drafting
- Secure document management
Complaints and access to documents
It happens regularly that an unsuccessful tenderer requests access to documents and/or files a complaint with the Complaints Board for Public Procurement.
CLEMENS can in this regard:
- Assist in assessing whether an unsuccessful tenderer's request for access to documents should be granted in full or in part
- Assess whether there may have been errors in the procurement process that should result in the tender being canceled
- Assist the contracting authority all the way through the process during a complaint case at the Complaints Board for Public Procurement
- If necessary, subsequently litigate the complaint in court