The Office of Government Procurement ("OGP") has developed a pilot programme (excluding commercial semi-State bodies, public works and defence/security contracts) to provide what is termed an "informal outlet for potential suppliers to raise concerns in relation to a particular live tender process". The customer service section of the OGP will implement the initiative.
The new Tender Advisory Service ("TAS") will liaise with potential suppliers and contracting authorities to deal with queries / clarifications in respect of tender processes. TAS may make suggestions to contracting authorities aimed at resolving the concerns that have been raised. Any query raised with TAS will be made available to all bidders bidding for that particular tender process. In order to avail of TAS, the following conditions must be met:
- It can only be used up to 6 days before closing date for receipt of tenders (that is, it is not a forum for dealing with disputes arising from standstill letters) or after tender submission.
- It applies to procurements both under and over EU thresholds.
- A Request for Tender must have been published.
- The aggrieved bidder must have availed of the query or clarifications process available under the relevant tender process. In other words, TAS is not the first port of call in respect of tender queries. The bidder must have contacted the contracting authority setting out its concerns first.
- Bidders can contact TAS using the standard enquiry form (a template which has been provided by OGP).
It is envisaged that TAS will respond within 3 working days. It is acknowledged that certain clarifications may take longer to respond to, in which cases TAS may request the relevant contracting authority to extend the period for return of tenders. However, it is noted that this is a matter for the contracting authority and TAS has no authority to bind contracting authorities in this respect.
It is noted that the service is informal in nature and does not in any way impede the rights of individuals to pursue their rights under the remedies legislation. TAS has no ability to formally investigate suppliers' concerns or change decisions taken by contracting authorities. However, it is noted that TAS expects that in the interests of the best practice, contracting authorities should comply with any suggestions made by it.
Offering a service which provides bidders with an opportunity to clarify tender requirements is clearly a welcome development. It would appear aimed at getting bidders to engage with contracting authorities pre rather than post tender submission where issues arise on tender documents, for example. Often tender document issues are not raised until a bidder finds out it has been unsuccessful in a tender competition (as part of complaints on the outcome of the tender process). It will be interesting to see how use (or non-use) of TAS by bidders might be viewed by a Court in the context of the applicable time limits for bidder procurement challenges.
The aim of dealing with queries within 3 working days is ambitious and would, if met, be unlikely to impact on tender processes. TAS may request contracting authorities to extend tender return dates in order to allow it to deal with queries in a small number of cases. This will need to be managed carefully in order to avoid delays in tender processes. More generally, it will also be interesting to see how the relationship between TAS and contracting authorities develops particularly where it is clearly intended that contracting authorities will abide by any recommendations that TAS makes, notwithstanding this is intended to be an informal process.
This certainly marks a welcome addition to the information exchange to be made between contracting authorities and bidders in public procurement processes in Ireland. It will be interesting to see how the Pilot develops and whether this Service may be expanded to deal with post tender issues or indeed be placed on a more formal footing.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.