Bidders must not shy away from asking questions when they are unclear on tender or prequalification requirements, writes Kevin Kelly

Public tender competitions have become more complex and time-consuming for tenderers in recent years and with greater numbers of firms competing for scarcer contracts now, it is more difficult to win work.

In that context, the industry is faced with doing what it can for itself to maximise the opportunities available. It is one thing to lose a competition on merit but particularly galling after expenditure of significant time and resources to fail for simple non-compliance or misunderstanding the brief.

A few key points where bidders have failed, perhaps for want of attention on their part, are discussed briefly here to illustrate potential avoidable pitfalls. Also discussed are remedies for tenderers dissatisfied with the outcome.

Scoring an Own Goal

In the past bidders have often been eliminated from competitions for non-compliance with relatively simple requirements, easily avoided. If it is a matter of not understanding prequalification or tender documentation, there will be ample time to ask for clarification if the bidder’s review starts early.

Sometimes bidders may fear losing a competitive advantage by asking a question; that obviously involves a commercial decision but at least bidders should make a positive decision not to ask, rather than simply risk missing the target because of a wrong assumption.

Public bodies often apply pass/fail criteria such as demonstrating a certain minimum turnover or a certain minimum relevant experience, but a pass requirement can also be a simple submission of basic documentation such as a tax clearance certificate.

Careful attention should be paid to these especially since a public sector body faced with a multitude of expressions of interest may decide to rely on the strict rule about compliance to narrow the field. In many cases the public body will keep a discretion to allow certain non compliances to be waived or to seek clarifications in limited circumstances but firms can have no guarantee that such a discretion will be exercised in their favour.

It is much better to double check compliance before submission as it can be difficult to overturn the exercise of a discretion.

Recent court decisions in the UK and the European Court of Justice place a greater onus on contracting authorities to make available to bidders marking schemes and sub-criteria if they are to be used. If a bidder thinks, on reading the issued documentation, that more detailed sub-criteria or weightings might be applicable, why not ask the question?

Clarity on the issue allows a bidder to provide a more focussed bid, and so improve its chances of a competitive tender. Where a contracting authority confirms there are no further sub-criteria but it is later established that some were actually used, the entire process is then open to challenge.

You don’t like the decision?

When notified of the decision by the contracting authority, the bidder should immediately seek reasons for the decision. The contracting authority is obliged to furnish reasons in a way which will allow the contractor to understand why it did not qualify or win the competition.

Just receiving a score may not be sufficient to understand why the bid or prequalification submission failed. Unsuccessful bidders must be given at least 14 days’ clear notice of the intention of the contracting authority to enter into the contract with the winner; that period should be used to begin the information gathering exercise but is not the absolute time limit for bringing a challenge to the High Court under the rules of court.

Depending on the contract involved, the High Court can set the contested decision aside, award damages to a bidder, or give an injunction to stop the process until the bidder’s case is heard. A bidder who wishes to bring such a challenge must do so at the earliest opportunity but in any event within three months.

However, leaving it for the full three months may prove problematic if all the information which was necessary to mount the challenge was available immediately; the sooner the challenge is taken, the less chance there is of a court deciding that the challenge is time barred.

Even if a contractor is unwilling to take a challenge to the High Court, it is open to it to make a complaint to the European Commission. However, not every complaint is taken up by the Commission and even if it is, it will not necessarily lead to a re-running of the competition or the award of the contract to the complainant or indeed to any compensation.

In the current market it is all the more important that bidders raise questions at the earliest opportunity where they are unclear about what is being asked of them, double-check submissions against the tender or prequalification requirements, including any pass/fail criteria, and make sure that the various items of required information are submitted and on time. If a bidder remains dissatisfied with a decision in a competition, it still has a remedy, but at least it can avoid an own goal.

Kevin Kelly is a partner at McCann FitzGerald and leads its Construction group

This article appears in the April edition of the Irish Construction Industry Magazine.