session: “best practice for procurement of services” how to avoid the most common mistakes when...
TRANSCRIPT
Session: “Best Practice for Procurement of Services”
How to avoid the most common mistakes when procuring services
Lenka Krutakova EBRD-Consultant, WOLF THEISS
Kiev, November 2012
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Agenda
The most common mistakes:
1. During preparation of the award procedure
2. During the award procedure
3. After the completion of the award procedure
Case law
Questions and Answers
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1. Mistakes occurring during preparation of award procedure on services
a. Failure to respect the aggregation rules - division of public procurement on services
b. Mixing qualification and evaluation criteria
c. Discriminating technical conditions and evaluation criteria
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a) Failure to respect the aggregation rules - division of public procurement on services
Contracting authority cannot (but often does)
forcibly divide public service contract with evident time and matter relation into several parts
split purchases into separate contracts each of which falls below the threshold with a view to taking the purchase outside the ambit of the European public procurement regime.
The aggregation rules require that a contracting authority adds together the value of the purchases made under a number of similar contracts if they are a single requirement and the European public procurement rules will apply if the value of the contracts taken together exceeds the thresholds.
Vs. new awarding Directives – support of SME
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b) Mixing qualification and evaluation criteria (1/3)
Qualification criteria and evaluation criteria are governed by different sets of rules
Qualification criteria: related to company, to assess quality of candidates
Evaluation criteria: related to offer, to select most economically advantageous offers
Contracting authorities must take care not to confuse criteria used to select providers to tender (qualification criteria) and evaluation criteria used later on in the procurement process to award the contract.
EU Directives do not explicitly ban the use of evaluation criteria related to the characteristics of the applicant.
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b) Mixing qualification and evaluation criteria (2/3)C-532/06 Lianakis (24.1.2008)
Subject matter of the public contract was a study related to record of lands, urban development and implementation measures for the part of the Alexandroupolis city
Following evaluation criteria were used in this Case:
the proven experience of the expert on projects carried out over the last three years;
the firm’s manpower and equipment; and
the ability to complete the project by the anticipated deadline, together with the firm’s commitments and its professional potential
“Therefore, ‘award criteria’ do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ ability to perform the contract in question.”
ECJ stated that the above criteria are qualification requirements and cannot be used as evaluation criteria
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b) Mixing qualification and evaluation criteria (3/3)C-199/07 Commission vs. Hellenic Republic (12.11.2009)
The subject matter of the public contract was elaboration of the study in connection with the construction and electromechanical projects related to construction of railway station
Following evaluation criteria were used in this Case:
specific and general experience, in particular design work on similar projects either by consultancy firms or consultants and their scientific staff
real capacity to conduct a study within the timescale planned together with obligations assumed regarding the carrying-out of other studies and the specific scientific and operational staff proposed to conduct the study in question as well as the equipment in relation to the object of the study
ECJ stated that the above criteria are qualification requirements and cannot be used as evaluation criteria
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c) Discriminating technical conditions and evaluation criteria Case C-234/03 Contse SA and Others v Instituto Nacional de Gestión
Sanitaria The subject matter of the public contract were health services of home
respiratory treatments and other assisted breathing techniques ECJ: Contracting authority cannot state in the tender documents
an admission condition which requires an undertaking submitting a tender to have, at the time the tender is submitted, an office open to the public in the capital of the province where the service is to be supplied
the evaluation criteria which reward, by awarding extra points, the existence at the time the tender is submitted of oxygen production, conditioning and bottling plants situated within 1000 km of that province or offices open to the public in other specified towns in that province, and which, in the case of a tie between a number of tenders, favours the undertaking which was previously providing the service concerned
Those criteria are applied in a discriminatory manner
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2. Mistakes occurring during award procedure of services
a. Improper way of publication
b. Tight time schedule
c. Non-disqualification of candidate when he does not comply with requirements
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a) Improper way of publication (1/2)
Reasonable method of publication of the selection process is precisely defined by the law according to the estimated value of the public service contract.
Insufficient number of addressed suppliers or it is obvious that the contract of this dimension is not interesting for the addressed suppliers
The method of selection of suppliers, including their ability to carry out the subject matter of the public procurement shall always be well documented.
Direct awarding without publication
Publication only on regional/national instead of EU level
Failure to disclosure all evaluation criteria and weights
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a) Improper way of publication (2/2):Failure to disclosure all evaluation criteria and weights
All evaluation criteria (including any sub-criteria) and all weightings must be set out in the OJEU notice and/or the contract documents (principle of transparency).
The most common mistake is that even though the evaluation criteria are stipulated in the tender documentation, it is not specified how these criteria shall be evaluated. Tenderers are not informed neither according what facts shall be within the specific criteria evaluated, nor how many percentage or points can be obtained for individual criterion.
The contracting authority must therefore be very careful in providing detailed description of facts which will be evaluated – otherwise lack of transparency in evaluation of offers.
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b) Tight time schedule
Allow enough time for procurement when developing project! Negotiated procedure without prior publication
extreme urgency due to unforeseeable events applies to natural disasters rather to tight time schedules
The law clearly provides for each type of award procedure many deadlines which shall be followed.
The contracting authority often provides unreasonably short period, e.g. when providing tender documentation for submitting tenders for providing additional information. major impact on the quantity and quality of submitted
tenders and therefore directly affect the competition
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c) Non-disqualification of candidate when he does not comply with requirements
If the candidate fails to prove his qualification within the provided deadline, his tender shall not be evaluated and this candidate must be disqualified – with excemptions regarding updates and later added documents according to law.
Most common mistakes:
Incorrect wording of affidavits
Outdated documents
Signatures of unauthorized persons
A member/advisor of the evaluation committee - the one who prepared the tender documentation and knows exactly what was required
Providing of model forms in tender documentation
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3. Mistakes occurring after completion of award procedure of services
a. Change of contract conditions
b. Archiving documents
141.3.2012
a) Change of contract conditions
Editing text of the submitted contract is only possible from the formal-legal view.
Facts which have been already evaluated or have been crucial for submission of tenders shall not be modified, not even by the amendment to the contract.
Contracting authorities very often make mistakes by concluding amendments substantially expanding the subject matter of the public procurement or substantially changing the original terms and conditions (e.g. price, payment terms, etc.).
If it is absolutely necessary to modify the contract, the contracting authority should consider whether it is not necessary to initiate a new award procedure.
C-454/06 pressetext Nachrichtenagentur GmbH
151.3.2012
b) Archiving documents
Contracting authorities are obliged to store the tender documentation.
A common mistake is the removal of some documents from the archive since the contracting authority believes that there is no need to keep tenders of unsuccessful applicants.
Similarly, the contracting authorities often mistakenly do not archive electronic documentation to the tender, such as tenderers‘ questions submitted electronically.
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Thank you for your attention!
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Contact
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Mgr. PhDr. Lenka KrutakovaTel: + 420 234 765 111
Fax: +420 234 765 110
E-Mail: [email protected]
WOLF THEISS advokati s.r.o.Pobrezni 394/12186 00 PragueCzech Republic