27/02/2019

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

Procurement Pitfall 4 is on Word Counts.

Word Counts: That two little words can cause so much trouble is, perhaps, surprising. Authorities use word counts to ensure that tender responses are (a) comparable and (b) proportionate. Below are two examples of where word counts have caused problems. We will look at two more examples in “Procurement Pitfalls 5”.

Our first example is where it is not clear what the authority will do if the word count is exceeded.


Word Counts - example 1

Extract from the tender document:

“Word Count: 1000. Words over this limit may be struck out.”

What happens next?

Eight bidders submit tenders

  • 4 bidders comply with the word count.
  •  1 bidder is 76 words over the word count.
  •  2 bidders are more than 200 words over the word count.
  •  1 bidder is more than 500 words over the word count.

Question? What should the authority do?

Acting transparently it must do what it said it would do in the tender documents. The statement in the tender document is that words over this limit “may” be struck out.  “May” indicates that the authority has a discretion as to whether or not to strike out words over the limit.

The authority must, however, treat all bidders equally, act in a proportionate manner and in a way which is non-discriminatory. Is it equal treatment if the authority allows the bidders who have ignored the word count to gain an advantage over the bidders who have observed it? Arguably yes and it is likely in this instance that the authority ought to disregard words over the word limit. What about the bidder who was only 76 words over the word limit? Can the authority allow those 76 additional words in on the grounds that it is proportionate to do so? Arguably not if those 76 words enable that bidder to gain an advantage over the other bidders who have observed the word limit.

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

 “Word Count: 1000. Words over this limit will be struck out.”


Maps and diagrams which contain words have also caused problems. Authorities like to allow diagrams, charts and maps because they can be a useful method of explanation.

Our second example is where it is not clear whether text contained within them counts towards the word count

Word Counts - example 2

Extract from tender document:

“Word Count: 1000 including text in pictures and diagrams.”

What happens next?

One bidder’s response includes numerous pictures, maps and flow-charts which are in pdf format. The authority’s word count software cannot pick up the words in these pdfs.

Question? What should the authority do? The authority must act transparently and follow its published tender documents, so must include the text in pictures and diagrams in the word count. The authority must decide whether the maps and flow-charts fall within this definition. It is reasonable to interpret diagrams as also covering flow-charts? It is less clear what the position is regarding maps. Does a “map” fall within the definition of either or both of a picture or diagram?

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

“Word Count: 1000. All words in any format (including but not limited to words in diagrams, pictures, maps, tables and charts) will count towards the word count. 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.”

 


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.

In "Procurement Pitfalls 5" we will look at two more examples of problems with word counts.

For more information please contact Susie Smith or Emily Heard.