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Legal - Public Procurement | publié par Loyco | 02.09.2024

Awards: questions to ask when preparing an invitation to tender

The preparatory phase of an invitation to tender, which includes drawing up the specifications, defining the administrative conditions and selecting the annexes, is crucial to the success of the Award process. Our Public Procurement specialists will take you through the basic questions to be asked when preparing a Tender, and offer you a number of practical examples.

Preparing a Tender requires special attention, so it’s crucial to ask the right questions from the outset. In this article, our Public Procurement experts guide you through the fundamental questions to consider when structuring a Tender to ensure transparency, fairness and full competition.

1. Are the requirements clearly defined and sufficiently detailed to avoid any ambiguity in the Tenders?
The clearer the specifications are, the more likely the awarding authority is to receive compliant and uniform Tenders. Unclear specifications, or specifications that are too broadly defined in certain respects, could result in a wide variety of Tenders, which would be difficult to compare, or in undesirable services being proposed.

For example, for a school catering contract, instead of simply asking for “balanced and sustainable meals”, the awarding authority can be more specific and require: compliance with detailed nutritional principles, Fourchette Verte certification, a percentage of the ingredients to come from organic farming, or a weekly vegetarian-only menu.

2. Do the specifications promote competition and not unjustifiably exclude certain bidders?
The awarding authority must take care to avoid overly specific requirements that could favor certain suppliers or exclude competent players from the market. By asking for certifications or qualifications that are too specific and not necessary for the contract in question, the awarding authority could limit participation to just a few companies. It is advisable to define criteria that are proportionate to the real needs of the contract.

For example, in a call for tenders for the installation of solar panels on public buildings, a specification requiring the exclusive use of solar panels of a specific brand could unfairly restrict competition. On the other hand, if the requirement is formulated in terms of performance standards (e.g. minimum energy yield), several manufacturers could bid, thus promoting competition while meeting the project’s quality objectives.

3. Have future needs been properly anticipated to avoid subsequent changes to the Contrat?
Anticipating future needs as part of a tender process is crucial to avoid subsequent modifications to the Contrat, which can lead to delays, additional costs and legal complications. It is essential that the awarding authority takes into account not only current needs, but also possible or foreseeable developments that could affect the performance of the contract over time.

For example, a local authority would like to organize a call for Tenders to find a new provider for its school canteen Services. At present, the canteen serves 2,000 meals a year, but an increase in child attendance is expected due to the construction of additional classrooms. If the purchaser does not take this future increase into account, the number of meals provided for in the contract following the award could be insufficient. In this case, for example, the awarding authority could already inform bidders of the future increase in meal volume in its specifications, and ask them to quote a price per meal that takes this parameter into account.

 

1. Are the Award criteria chosen in line with the objectives of the call for Tenders?
The criteria must reflect not only the technical needs, but also the priorities of the awarding authority. Indeed, if the main objective of the call for tenders is to obtain an innovative solution, the criteria must emphasize innovation and the ability to propose innovative approaches, rather than focusing solely on cost.The choice of the percentages allocated to each Award criterion is decisive for the course of the evaluation. In order to obtain credible Tenders, the awarding authority must ensure that the weighting of the price and technical quality criteria are chosen in line with the reality of the targeted field.

For example, in a Tender for the restoration of a listed building, the main objective is to conserve and restore the architectural features while respecting traditional construction methods. Here, the evaluation criteria could focus on technical quality and references in the restoration of historic monuments. The awarding authority could require bidders to have proven experience in similar projects, with detailed references, and specific know-how in restoration techniques. In this case, although price remains an important criterion that could determine the feasibility of the project, priority could be given to the bidder’s technical capacity and experience.

2. Are the appendices chosen by the adjudicator useful and relevant for evaluating the bidders objectively?

Attachments are additional documents requested by adjudicators from tenderers, such as certifications, references or technical documents, which enable the adjudicator to check that the tender meets the criteria set out in the specifications. It is important that the annexes requested are directly linked to the project requirements and that they facilitate an objective evaluation, without imposing unnecessary constraints on bidders.

For example, in an invitation to tender for the construction of a bridge, useful appendices would include references to similar projects carried out by the bidders (to assess their experience), and quality certifications (to guarantee compliance with construction standards). These appendices provide an objective assessment of the bidders’ ability to carry out the project, whereas documents that are too complex or irrelevant, such as detailed financial statements over several years with no direct link to the project, could unnecessarily complicate the evaluation without adding any value.

Requesting only relevant appendices will save time for bidders when drawing up their Tenders, and for the adjudicator when evaluating them.

3. Have response procedures been clearly defined? Are all relevant rules included in the administrative conditions?
 When drawing up the administrative conditions for a call for Tenders, it is important to define the terms and conditions for responding, to ensure clarity in the process and avoid non-compliant bids. Precise instructions ensure that you receive complete Tenders. Here is a non-exhaustive list of essential points to be specified in the administrative conditions:

  • a list of all the documents that must be supplied for the Tender to be considered complete;
  • the timetable for the procedure, which complies with the law and indicates the date and time by which bids must be submitted.
    For example: “Tenders must be submitted by October 25, 2024 at 5:00 pm. Tenders received after this date will not be considered”;
  • the address of the awarding authority, the place where the Tenders are to be submitted, and the address of the place where any visits to the premises are to take place;
  • submission formats (paper, electronic, or both);
  • Award criteria;
  • Tender validity conditions: “Tenders must remain valid for a period of 90 days after the submission deadline”;
  • submission language;
  • the reasons for the exclusion of Tenders;
  • recusal and pre-implication procedures;
  • terms and conditions of joint ventures and subcontracting;
  • Review procedures.

Preparing a call for Tenders means asking the right questions beforehand. This avoids costly mistakes and ensures fair competition, while respecting the project’s objectives. The time invested in preparing a call for Tenders is often time saved later on.

In short, when it comes to Public Procurement, it’s better to prepare than to repair.

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