06/03/2019

This series of articles draws on our disputes experience and identifies 7 common Procurement Pitfalls. When we advise on procurement challenges we tend to find the same types of problems, irrespective of the sector in which they arise. Often these are problems which emerge from the content of the tender documents, and which lead to problems for evaluators. The objective of these articles is to forewarn so that early thought can be given to avoiding these issues.  

We will be focussing on:

  • Price/evaluation methodology
  • Waiving requirements
  • Imposing unreasonably high requirements
  • Debriefing

In Procurement Pitfalls 4 we looked at two examples of problems arising with word counts:

  • Where it is not clear what the authority will do in the word count is exceeded; and
  • Where is it not clear whether text in diagrams, charts and maps counts towards the word count.

We now look at two further examples of problems arising with word counts.

An authority may decide that it will allow bidders to use diagrams as well as, pictures, maps, tables and charts etc. freely without the words within those counting towards the word count. 

Our next example is where bidders include a significant amount of text within these alternative methods of presentation.


Word Counts - example 3

Extract from the tender document:

“Word Count: 1000 excluding text in pictures, diagrams, charts, tables and maps”

What happens next?

One bidder’s response includes extensive charts which are a series of blocks and arrow outlines containing a lot of text which seeks to address the evaluation criteria. For example, one page has three squares and linking arrows containing over 600 words.

Question? What should the authority do?

The authority must act transparently and follow its published tender documents so must not include the text in charts and diagrams in the word count.   The authority must decide whether the method of presentation the bidder has used falls within this definition.  There is some public law case law that indicates that the Courts will respect an authority’s interpretation of terms which are reasonably capable of more than one meaning ), but scope for debate and argument remains.

What would resolve this problem in the future? To avoid argument in the future, it would be preferable to state:

“Word Count: 1000. Words in diagrams, pictures, maps, tables and charts will not count towards the word count, subject to a maximum number of words within these formats of 300 words. The bidder must state the number of words in any diagram, picture, map, table or chart directly underneath it. This includes any other method of presentation which is not just text.”

An alternative solution which does not impose a strict limit but disregards words contained within diagrams etc. would be to state:

 “Word Count: 1000. Diagrams, pictures, maps, tables and charts may include words but only to the extent that those words are necessary to enable evaluators to understand or interpret the diagram, picture etc. Words contained within diagrams, pictures etc. will be disregarded for the purpose of the evaluation of a bidder’s substantive response to the question / requirement.”


Our fourth example covers the situation where the authority decides that the use of word counts is fraught with difficulty and so instructs bidders to ensure that their responses do not exceed a number of pages of text.

Word Counts - example 4

Extract from tender document:

Bidders’ responses to this question must not exceed more than two sides of A4 paper, using Microsoft Word, Arial font size 12 and with margins fixed at 1.5cm top, bottoms and sides.

What happens next?

Bidder 1 is using Microsoft Word 2010 and Bidder 2 is using Pages on a Mac (prior to saving the document as a .docx for submission). Both bidders’ submissions fall within 2 pages of text when they are opened on their own computer systems. The authority’s system uses Word 2016. When the authority opens the two bids, Bidder 1’s submission exceeds two pages by 6 lines and Bidder 2’s submission falls within two pages.

Question? What should the authority do? The authority must act transparently and follow its published tender documents so arguably ought to strike out the 6 extra lines in Bidder 1’s submission. However, if the authority were to investigate it would realise that Bidder 1 had in fact complied with the instructions, but had been tripped up by reason of the fact that the different versions of Microsoft Word meant that the document was presented differently on different systems. It would arguably be unfair and in breach of the authority’s duty of equal treatment to penalise Bidder 1 for using a different IT system to the authority.

What would resolve this problem in the future?

One option might be to insist on a page limit but ask bidders to submit their bids as PDFs, such that different versions of the software cannot have the effect of altering the document’s presentation. However, it is often helpful for authorities to have a version of the bids in Word to enable, for example, cut and pasting of text.

To avoid argument in the future, it would be preferable here to state:

Bidders’ responses to this question must not exceed more than two sides of A4 paper when created using Microsoft Word, Arial font size 12 and with margins fixed at 1.5cm top, bottoms and sides. Bids should be submitted in both pdf and Microsoft Word format.

 


Our specialist procurement litigation team frequently bring and defend court challenges, both for suppliers and contracting authorities.  In the past year alone, we have advised on a range of disputes including: health and social care, infrastructure and development, waste collection and disposal, pathology, defence and telecommunications.

Our next Procurement Pitfall looks at scoring matrix issues.

For more information please contact Susie Smith or Emily Heard.