Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Many landlords are now having to spend extra time and money providing detailed feedback to suppliers about unsuccessful tenders.
So how can social landlords minimise the risk of informal challenges? One way is by improving how the tender process is explained. Procurement teams may spend lots of time evaluating suppliers’ bids, but to avoid informal procurement challenges they need to invest equally in explaining clearly their prequalification, selection and tender evaluation processes when preparing prequalification questionnaires and invitations to tender.
Procurement teams must strike a balance between being explicit on award criteria and not actually telling bidders what to write. They must also evaluate the right things at the right stages of the tender process.
Despite the complexity and volume of procurement law coming thick and fast from the European Commission, it’s essential that housing staff keep up to date.
There is no case law on informal challenges, since they haven’t gone to court, but cases such as Mears v Leeds in 2011, where ‘model answers’ were used to score bids but were not disclosed to bidders, show the legal risks around tender evaluation processes.
Andrew Millross is a partner at Anthony Collins Solicitors.
This piece also appeared in Inside Housing on 10 May 2013. A copy of this article can also be found on their website - please click here to view.
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