Procurement Briefing_V1:Layout 1 26/3/10 12:16 Page 1

Making Public Procurement

Work for Suppliers
Legal Rules and Obligations to Public Procurement

Supported by
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ACEVO
1 New Oxford Street
London
WC1A 1NU

T: 020 7280 4960

F: 020 7280 4989
E: info@acevo.org.uk
W: www.acevo.org.uk
Registered Charity Number 1114591

Published by ACEVO
First published 2010
Copyright © 2010 ACEVO
All rights reserved.

No part of this book may be reproduced by any means, or transmitted, or translated into
a machine language without prior permission in writing from the publisher.

Printed on 100% recycled paper.

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Contents
04 1. What is the purpose of procurement rules?
04 2. When do procurement rules apply and when are they avoidable?
04 3. Why do they appear complicated?
04 4. How can the burdens of procurement be reduced?
04 5. What are the different procurement procedures?
05 6. When is each of the five procedures appropriate?
05 7. What are the stages of a procurement process?
06 8. How can the process be simplified?
06 9. How can suppliers identify procurement opportunities?
06 10. How can suppliers contribute to improve a procurement process?
07 11. How are suppliers really restricted from engagement with purchasers?
07 12. How can a supplier present and still protect its innovative ideas?
08 13. What information must be provided and how may relevant information be
provided when not directly requested?
08 14. What are the methods of assessment and selection at the PQQ and IT
stages?
09 15. How can added social and environmental value be presented?
09 16. How much can suppliers know about the way they are assessed?
09 17. How does a procured process contact become a formal legal contract?
10 18. How should a supplier respond to unreasonable/unfair proposed contact
terms?
10 19. How can a supplier retain some control, in relation to the procured
contract terms?
11 20. What issues arise in relation to consortium bids?
11 21. What are the employee transfer (“TUPE”) issues that arise in relation to
procurement?
12 22. What is a purchaser’s legal duty to act fairly?
12 23. What rights does a supplier have when a purchaser breaches its duty?
12 24. What are the issues for small suppliers?
13 25. What are the practical means of securing redress for unfair/unreasonable
treatment?
13 26. Possible bases of challenge include any disadvantage to a supplier
13 27. Must suppliers comply with procurement rules in their own contracts?

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1. What is the purpose of procurement rules?

1.1 Public authorities must purchase ("commission") “best value” services for the public benefit.
1.2 The purpose of procurement rules is to ensure such purchases comply with fair treatment principles
requiring:
1.2.1 objective assessment/selection;
1.2.2 fair, equal and non-discriminatory treatment of potential suppliers;
1.2.3 reasonable, proportionate and transparent procedure.

2. When do procurement rules apply and when are they avoidable?

2.1 Procurement rules are applicable whenever a public authority is intending to acquire goods or services, from
an external supplier, in return for payment (or equivalent consideration).
2.2 They do not apply if a public authority is being supplied by a department within the same public authority
without any opportunity being provided to external suppliers (although this may raise a legal question
about whether this is a reasonable choice).
2.3 They do not apply again where a contract is being put in place under subordinate rules established under
an existing "framework agreement" (see para.5) which was previously put in place in accordance with
procurement rules.
2.4 The do not apply to contract variations and extensions explicitly within the scope of the original
procurement of that contract, but do apply to variations and extensions outside the original scope.
2.5 They do not apply to grants, because they are given, to support a desirable activity, not in return for the
delivery of goods or services to the public authority.

3. Why do they appear complicated?

3.1 Fair treatment principles become rules by legislation and are applied by formal process.
3.2 UK rules to achieve "best value" are overlaid by European Union pro-competition rules for public contracts.
3.3 Careful consideration is required to use procurement rules with focus and clarity and practice is variable.
3.4 The required systematic approach can, without due application, promote form over substance.

4. How can the burdens of procurement be reduced?

Understanding procurement principles and constructive engagement with the procurement process can
assist. Read on.

5. What are the different procurement procedures?

There are five basic types of procedure:
• Open - a direct invitation to tender to all potential suppliers;
• Restricted - an invitation to tender preceded by a prequalification process for prospective suppliers;
• Negotiated - direct negotiation with the one, or few, possible supplier(s);
• Competitive dialogue - an invitation to tender followed by formalised discussion with prospective
suppliers leading to final tender bids;
• Framework - one of the above procedures establishes a "framework agreement" under which
particular contracts may subsequently be granted, within the framework terms, to one or more
selected suppliers.

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6. When is each of the five procedures appropriate?

6.1 Open - where a single assessment stage will suffice to judge between any number of suppliers.
6.2 Restricted - where the need is for a more intensive selection process requiring detailed assessment of and
comparison between a few potential suppliers which meet base selection criteria.
6.3 Negotiated - in urgent circumstances, or where it is known that there is/are only one, or few possible
suppliers and they may be engaged with directly.
6.4 Competitive dialogue -where the service requirement is relatively complex and the purchaser’s
requirements and the supplier’s offer will benefit from refinement through structured, clarifying engagement,
prior to the final bid stage.
6.5 Framework – where the need is for a series of particular contracts on the same basic terms and a pre-
procurement, identifying one supplier, or a supplier list, may serve for the series.

7. What are the stages of a procurement process?

7.1 The particular process is determined by the Purchaser as that most suitable to the circumstances, and this
will relate to the type of and number of likely potential suppliers in the market place and the type of service
or goods that the procurement process is securing.
7.2 A full process, following the most extensive procedure - a restricted, competitive dialogue - may be
summarised as follows:
7.2.1 Purchaser identifies need for a public service.
7.2.2 Purchaser consults potential service suppliers/stakeholders.
7.2.3 Purchaser plans procurement, selecting procedure (see para. 5).
7.2.4 Purchaser produces procurement documents – i) advertisement; ii) pre-qualification questionnaire
("PQQ") (with assessment process/criteria); iii) invitation to tender ("ITT") (with assessment
process/criteria); iv) contract terms.
7.2.5 Purchaser issues advertisement and PQQ.
7.2.6 Prospective suppliers submit PQQ answers.
7.2.7 Purchaser assesses PQQ answers, selects tender invitees on objective basis and issues ITT to them.
7.2.8 Structured competitive dialogue (question/answer and discussion) developing tender issues with
each tenderer.
7.2.9 Tenderers submit final bid tenders in response to ITT, taking account of competitive dialogue
7.2.10 Purchaser assesses tenders and selects supplier on objective basis ;
7.2.11 Selected and unsuccessful tenderers notified and the latter debriefed;
7.2.12 After standstill period (in case of challenge), contract with supplier put in place.
7.3 The simplest open procedure may be summarised as follows:
7.3.1 Purchaser identifies need for a public service.
7.3.2 Purchaser plans procurement, selecting procedure (see para. 5).
7.3.3 Purchaser produces procurement documents – i) advertisement; iii) invitation to tender ("ITT")
(with assessment process/criteria); iv) contract terms.
7.3.4 Purchaser issues advertisement and ITT.
7.3.5 Tenderers submit tenders in response to ITT.

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7.3.6 Purchaser assesses tenders and selects supplier on objective basis;

7.3.7 Selected and unsuccessful tenderers notified and the latter debriefed;
7.3.8 After standstill period (in case of challenge), contract with supplier confirmed on the terms of the
ITT and tender.

8. How can the process be simplified?

8.1 For contracts below designated total contract values and/or designated “Part B” the process must
essentially meet fair treatment principles (see para.1.2).
8.2 These provide scope for appropriate tailoring and simplification, though they do tend to be interpreted
in line with prescriptive rules.
8.3 Most socially focussed services are “Part B”, including: education, health, social, recreational, cultural,
sporting; legal, personnel and all “other services” not designated “Part A”.
8.4 “Part A” service/supply contracts above a total contract value of £156,442 plus VAT (£101,323 plus VAT
for central government), are subject to prescriptive process. For works contracts the level is £3,927,313.
Thresholds are set by the EU as official conversions from Euros. These thresholds were those set from
1st January 2010.
8.5 Part B requirements may be met by a rational, coherent process which applies fair treatment principles
(see para.1.2); taking, as guidance, the five possible procedures (see para.5) and the typical process (see
para.7). In principle the procedure is still formal, but it is intended to be more proportionate, by reference
to the applicable scale or purpose.

9. How can suppliers identify procurement opportunities?

9.1 Part A procedure requires a purchaser to advertise procurement opportunities in an Official Journal of
the European Union ("OJEU”) notice.
9.2 In Part B and below threshold procurement, the obligation is to advertise in a manner reasonably likely
to reach the range of realistic prospective suppliers. This can mean advertisement on an official website,
or in national/local/trade media. It might mean an OJEU notice, where a supplier might realistically come
from another EU state.
9.3 Suppliers should ascertain how relevant opportunities are advertised from relevant purchasers to assist
forward planning.

10. How can suppliers contribute to improve a procurement process?

10.1 By engaging with purchasers to contribute objective insight and value to their strategic planning and
intended procedures prior to formal procurements (on the basis that well-targeted and good practice
procurement is in the interests of the purchaser, all potential suppliers, the beneficiaries of the service
and the public generally, as opposed to seeking to influence the particular outcome).
10.2 Suppliers must follow the stated rules of any procurement process, in whatever form, or risk
disqualification/being marked down.
10.3 Purchasers may be encouraged outside a specific procurement to follow good procurement practice, for
example, where a supplier deals regularly with a purchaser.
10.4 Feedback may be provided following a procurement process, with a view to encouraging future improved
process.

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10.5 The competitive dialogue procedure is intended, in part, to improve the procurement outcome through
constructive engagement between the purchasers and potential suppliers.
10.6 With care, working within the rules, there can be a tactical focus on encouraging a preferable way of
proceeding. For example, there may be an opportunity to comment on proposed contract terms, or to
emphasise the importance of relevant factors, such as how quality should be weighed against price, or
how added value might be delivered.
10.7 Beware, however, that particular procurement rules can discourage proposed changes and presentations
including elements not formally identified as relevant.
10.8 Actual purchaser practice and poor compliance with applicable rules can provide opportunities to
influence. For example, although there should not be significant re-negotiation of contract terms, post-
tender (because procurement on the basis of the new terms might have produced a different tender
result), in practice, there may be scope to negotiate beneficially, after the contract award and before it is
effected.

11. How are suppliers really restricted from engagement with purchasers?
11.1 To ensure selection is objective, purchasers must treat all potential suppliers equally. This precludes
particular contact during a procurement process.
11.2 It might be desirable for knowledgeable suppliers to contribute to the specification of the contract to
be procured. However, this might give a contributing supplier unfair advantage in the procurement.
Purchasers, therefore, must keep any pre-procurement consultation separate from finalising the
specification and/or must give all suppliers the same consultation opportunity.
11.3 Once the procurement process has started, answers to supplier questions must be managed to ensure
all information is provided equally to all potential suppliers. This either means no answers will be given,
or that all questions and all answers will be provided to all suppliers on the same basis. This should
expressly be part of the process.

12. How can a supplier present and still protect its innovative ideas?
12.1 Innovative ideas may be presented within procurement rules, but, by their nature, may not be within the
purchaser’s contemplation and so the scope of the procurement terms.
12.2 Innovative ideas may therefore need to be presented prior to a procurement, to influence the service
specification. This will need to be at the consultation stage where the purchaser may receive ideas about
the services they wish to procure. However, this means a risk of an innovative idea feeding a procurement
specification and suppliers, which did not have the ideas, in the procurement process, being able to
respond to it, in competition with the originator of the idea.
12.3 Innovative ideas may be protected by disclosing them under a confidentiality agreement, which could
preclude direct use of critical detail in a specification, but allow the procurement generally to invite such
ideas, alongside similar ideas of other suppliers.
12.4 The competitive dialogue procedure allows for the procurement specification to be developed through
constructive engagement between purchaser and tenderers.
12.5 In competitive dialogue procedure a supplier’s ideas could be used to improve the specification to which
all suppliers respond in final bids. The process should allow a supplier to designate which provided
information is confidential and which may be used with all suppliers.

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13. What information must be provided and how may relevant information be
provided when not directly requested?
13.1 All requested information must be provided. To omit any requested information risks being marked
down, or eliminated.
13.2 Only requested information should be provided. To do otherwise risks not complying with set procedure
and being disqualified, or marked down.
13.3 But set questions can be answered in creative ways, so information the supplier wants to provide may
be fitted within the scope of questions asked.
13.4 Do not assume prior knowledge of the supplier organisation, or the service, as information needs to be
included to be taken into account in the objective assessment process.
13.5 Also, a balance of risk choice can be made between compliance and non-compliance through providing
more valuable information than has been requested.
13.6 If the questions clearly do not reasonably and fairly invite relevant information the process would not
comply with the rules and could be challenged (see paras.23-25).

14. What are the methods of assessment and selection at the PQQ and
ITT stages?
14.1 Assessment/selection must comply with the fair treatment principles (see para.1.2).
14.2 The PQQ stage might be used objectively to exclude suppliers on capacity and viability grounds, or as
a preliminary assessment to reduce the number of suppliers to a practical number for full assessment
14.3 The overall basis of selection must be: "lowest price", or "most economically advantageous offer". The
latter allows quality, standards and if stated added value factors to be considered. “Lowest price” is typically
appropriate when choice is between standard specification physical goods, which may only be
differentiated by price. “Most economically advantageous bid” is generally appropriate for services, which
will necessarily differ to some degree and where, therefore, price and particular service factors, such as
quality, both need to be considered.
14.4 The originally defined scope of the service must not be extended in assessment, because all suppliers
must have been able to present on the same basis.
14.5 Each stage of the process must disclose sufficient advance information to suppliers on assessment criteria,
the relative weighting of each criterion and applicable procedure to enable the provision of full
information.
14.6 New assessment factors must not be introduced after the process has started. This would be a breach
of the fairness principle and the process could be challenged.
14.7 The same assessment factors must be applied to all prospective suppliers in the same way. If they are
not it is challengeable as a breach of the equal treatment principle.
14.8 Criteria and weighting must comply with the fair treatment principles (see para.1.2). Procurement
documentation must reasonably and fairly set out applicable criteria and weighting. Scoring must be
reasonably and fairly by reference to disclosed criteria and weighting and as a general rule should be
transparent. Breach of these principles is challengeable.
14.9 The level of disclosure of criteria and weighting, in practice, varies greatly. The tendency is towards more
detailed disclosure. “Sub-criteria” (and other sub-categories of assessment) can formally be “criteria”
requiring disclosure.
14.10 Small suppliers can be discriminated against where capacity/viability criteria unfairly exclude good small
suppliers. Reasonable scale criteria might be met through consortium collaboration, or the support of a
larger organisation. Unreasonable scale criteria are challengeable.

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15. How can added social and environmental value legitimately be presented?
15.1 "Social and environmental” benefits can be stated criteria in assessing the "most economically
advantageous" bid.
15.2 Where an ITT does not include express social and environmental assessment criteria, the supplier either
cannot present added value benefits within the rules, or must do so creatively utilising implicit latitude
within the non-specific stated criteria.
15.3 Social and environmental benefits need to be as well articulated and demonstrated as any other
assessment factors. A supplier’s status as a charity, or other public benefit supplier, has no intrinsic relevance
in a procurement process.

16. How much can suppliers know about the way they are assessed?
16.1 Part A procedure gives a disappointed tenderer the right to prompt confirmatory notification of the
criteria for the award of contract and “where practicable” it’s and the successful tenderer’s scores against
that criteria.
16.2 In a Part B procedure express terms of the procurement could provide a similar right.
16.3 Otherwise, in a Part B procedure, the general transparency principle would imply that a reasonable
request for similar information should be met, where there is no reasonable basis for withholding it.
16.4 A request might also be submitted under the Freedom of Information Act. This also enshrines the
principle that a public purchaser should disclose information it has no reasonable basis for withholding.
The presumption is that public sector contracting is public domain.
16.5 Authorities should keep clear records of their objective assessments, undertaken in accordance with the
terms of the ITT, enabling them to meet requests for such information by disappointed tenderers.

17. How does a procured process contract become a formal legal contract?
17.1 A contract is formed when one party formally agrees ("accepts") final terms offered by the other party.
In commercial contracting, such terms may be freely negotiated until final terms are set.
17.2 As procurement process requires that competitive suppliers are treated equally, the structured
procurement process replaces commercial negotiation.
17.3 The procurement terms should expressly detail how the contract is formed and particularly how the
tender terms will become the contract price and the contract specification.
17.4 This is best achieved by the intended contract terms being included with the ITT documentation.
17.5 Contract terms, prescribed by the purchaser in the ITT, may be presented on the basis that date will not
be varied and that the tender in response to an ITT will formally added the specification to the contract
terms and constitute a formal offer of contract, on those contract terms, which will be formally,
automatically accepted, thereby creating a formal contract, through the notified selection of the successful
tenderer.
17.6 In most cases it is desirable to give some opportunity to tenderers to suggest improvements, or other
appropriate variations, to the contract terms. Such suggestions should be formally invited and their
acceptable scope defined in the ITT.
17.7 Procurement terms can provide limited scope for final settlement of contract terms after the successful
tenderer is identified, but this must not violate the principle of equal treatment. It would if a tender was
awarded on one basis and that basis was materially varied in settling the contract and this would allow
challenge.

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17.8 Price and service specification should not generally be changed after contract award, while operational
contract terms, without a bearing on price, or specification, might be.
17.9 Where procurement terms do not make the contract formation process clear, tenderers should take care
to interpret the situation themselves and proceed with caution.

18. How should a supplier respond to unreasonable/unfair proposed contract

terms?
18.1 This is a difficult tactical question, similar to the question of how to provide unrequested relevant
information. Not following the (unreasonable/unfair) procurement rules risks not being successful in the
procurement.
18.2 Scope to suggest change should be taken to focus on important issues, not wasted on the less important.
18.3 Changes may constructively be characterised as “improving” the contract, as a whole, to mutual benefit,
rather than to protect partial interest.
18.4 The “Compact between Government and the Community and Voluntary Sector” sets out principles of
fair public sector contracting. As a practical, rather than a legal, measure, there may be some persuasive
benefit in reminding a purchaser of its commitment to the “Compact” principles. Most local authorities,
for example have signed the version of the Compact applicable to local authorities. However, raising the
Compact should follow the principle of constructive engagement (see para.18.3 and 18.5).
18.5 Seeking to raise fairness issues involves balancing risk and being clear-sightedly practical and pragmatic.
This might mean suggesting a more moderate variation than would be justified, for example, where it
would be reasonable for the purchaser to require the supplier's consent, a right to be reasonably
consulted might be requested.
18.6 Being practical and pragmatic might extend to judging (ideally with purchaser confirmation) that the
application of a problematic term is, in practice, likely to follow reasonable expectations, rather than the
unreasonable/unfair technical effect. For example, this might, in the particular circumstances, be the
(practical, though legally insecure) reaction to:
18.6.1 A prescribed and non-variable right, on the part of the Purchaser, unilaterally to vary contract terms; or,
18.6.2 An obligation imposed upon the supplier to remove an employee, as directed by the Purchaser and the
risk of this giving rise to an unfair dismissal claim.
18.7 Rights to challenge, based on unreasonable/unfair contract terms, consequently rendering the
procurement process unreasonable/unfair, may be considered, where a tactical approach is undesirable,
or unsuccessful.

19. How can a supplier retain some control in relation to the procured contract
terms?
19.1 The most important contract terms (as mentioned in para.17.3), are the price and service specification,
which will be derived directly from the tender.
19.2 This reinforces the fundamental point about procurement, that diligent attention to the drafting of the
tender, carefully following the express procurement terms and utilising leeway they provide, is the best
way to ensure that the contract terms meets the needs of the service supplier, as well as being assessed
best to meet the needs of the purchaser.

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20. What issues arise in relation to consortium bids?

20.1 There are two forms of consortium. One, created only by contractual agreement, remains a group of
independent suppliers working collaboratively. A more advanced form involves the collaborative group
creating a new consortium company, to be operated in accordance with a contractual agreement.
20.2 A consortium company can itself submit a tender and contract.
20.3 A consortium which remains a collaborative group needs to establish a lead consortium member, to
submit the tender and to contract, on the basis of the collaborative agreement. Otherwise difficulties arise
through consortium members tendering jointly and creating multiple contracts with the purchaser.

21. What are the employee transfer (“TUPE”) issues that arise in relation to
procurement?
21.1 It is essential to understand the effect of Transfer of Undertaking (Protection of Employment) Regulations,
known as "TUPE".
21.2 Under TUPE, where an "undertaking" transfers from one employer to another, all employees wholly or
mainly employed in relation to that "undertaking" automatically transfer to the new employer.
21.3 The definition of "undertaking" is wide enough to cover the transfer of a service from one service supplier
to another.
21.4 A successful tenderer taking on a procured service from a purchaser, or a previous service supplier, can
thus automatically receive all the employees of that purchaser, or previous service supplier, employed in
relation to that service.
21.5 Those employees are received on their existing terms and conditions, with continuity of employment
preserved and a dismissal associated with the transfer (not following a limited legitimate process) is
automatically an unfair dismissal. The effect of TUPE can create operational problems and have serious
employment and redundancy cost implications.
21.6 It is essential, in relation to a procurement, to ascertain from the purchaser the details of any TUPE
transferees and the full costs associated with their transfer.
21.7 If the contract terms are properly drafted, responsibility and risk may be assessed and clearly allocated
and the practical and cost issues properly addressed.
21.8 However, it is essential to recognise that the rules protect employees and are automatically binding on
employers, so where provisions are not properly drafted, there may be issues which are compounded
through not being properly addressed.
21.9 Where the transfer is from a public authority, the purchaser may also impose a contractual obligation in
relation to the employment terms for new service employees, so that they are not employed on different
terms to transferred employees. The consequences of an obligation of this sort must be fully assessed.
21.10 TUPE does not automatically transfer pension rights, but, public authorities are required, under a code
of practice, to ensure that the pension rights of purchaser employees which transfer to suppliers under
TUPE are protected.This usually means the supplier becoming an employer within the purchaser’ pension
scheme, or the supplier making arrangements for reasonably equivalent provision. There may also be
specific contractual provisions, in other cases, imposing obligations in relation to the pension rights of
transferred employees. Where pension issues are involved major cost and risk implications need
assessment and specialist advice will probably be necessary.
21.11 A properly drafted service supply contract involving TUPE transfers should (more reassuringly) provide
for the onward transfer of employees wholly or mainly engaged in that service, when the contract comes
to an end.

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22. What is a purchaser’s legal duty to act fairly?

The Purchaser has a legal duty to follow:
22.1 Applicable prescribed procurement rules;
22.2 Express procurement terms, which must be fair;
22.3 General fair treatment principles.

23. What rights does a supplier have when a purchaser breaches its legal duty?
23.1 Suppliers have the right to challenge the contract award, after declaration of the selected supplier and
before the contract is finalised, during an official “stand-off ” period to allow for such challenge.
23.2 The award notification requirements (see para.16) provide an opportunity to judge the fairness of the
assessment for a disappointed supplier.
23.3 The "stand-off" that is required under Part A, may be included in express procurement terms and may
apply under fair treatment principles.The purpose is to allow a wronged supplier to force the correction
of a deficient process, recognising that being compensated after the event is unlikely to be an effective
remedy for unfairly losing the contract.
23.4 The practical force of challenge is enhanced because the purchaser is automatically obliged to suspend
completion of the contract when a formal challenge is made.
23.5 This principle of challenge extends to the more serious situation where a contract has been finalised in
breach of procurement rules. A court can declare the contract ineffective and impose penalties on the
purchaser.
23.6 Clear, calm and scrupulously reasonable presentations of causes of challenge are most likely to succeed
in practical terms and otherwise provide the best basis for further assertive action and the last resort of
formal legal action.
23.7 There is a general right to compensation, under procurement rules, for loss caused by breach of the rules,
including loss of opportunity to become the selected supplier. This right could extend to a situation
where a supplier wins a contract, but because of the actions of the purchaser then loses it, or is forced
to repeat the procurement, through the challenge of a disappointed tenderer.
23.8 In particular circumstances ancillary contractual rights can emerge from a procurement process, where
promises are made and broken by the purchaser, while being reasonably relied upon by the supplier.
23.9 There is a general right to pursue judicial review of any manifestly unreasonable action by a public
authority. This is a very demanding test.
23.10 Of equal practical importance to a right to challenge, is the recognition that reasonable relationships
with purchasers need to be maintained and that diplomacy and pragmatism are often essential in this.

24. What are the issues for small suppliers?

24.1 Small suppliers can be particularly vulnerable to discrimination within a procurement process.This might
occur through assessment criteria unreasonably being set by reference to the size of an organisation, when
a small supplier would still be a good supplier of the relevant service. It might occur through actual
assessment being made by reference to undisclosed factors.
24.2 Where size of supplier can be a reasonable assessment criterion, it may be desirable for small suppliers
to collaborate, or to form a delivery consortium, or to secure and present explicit support from a larger
organisation, for example an associated umbrella body.

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25. What are the practical means of securing redress for unfair/unreasonable
treatment?
25.1 Rights are not necessarily helpful in pursuing the principal objective of securing a desired contract and
the unequal power of a purchaser is a further practical inhibition to challenge
25.2 Purchasers are, however, sensitive to challenge, particularly, because they can be required to start a
defective procurement process again from the beginning.
25.3 The threat of challenge, on the basis of a reasonable demonstration of unfair treatment, at any stage in
the process, can provoke a response from the purchaser. It may be in the interests of both parties for
such a challenge to be made, in a practical manner, at an early stage, when the unfair treatment may be
more readily corrected.
25.4 Despite the natural inclination to bear unreasonable, or unfair, treatment, rights of challenge do provide
practical means of addressing damagingly deficient procurement procedures.

26. Possible bases of challenge include any disadvantage to a supplier arising from:
26.1 Failure to advertise a contract opportunity in a way that fairly provided the supplier with an equal
opportunity to bid for it.
26.2 Failure to assess a supplier’s bid in a fair and reasonable way, including by failing to establish fair and
reasonable assessment criteria.
26.3 Failure to assess a supplier's bid only in accordance with disclosed assessment criteria.
26.4 Failure to follow published (or prescribed) procedure, including timescales.
26.5 Assessment of the successful tenderers bid in a manner that was not objective, equal and in accordance
with disclosed assessment criteria and published (or prescribed) procedure.
26.6 Establishing revised terms and conditions of contract with the successful tenderer after the procurement
process, so that an unsuccessful tenderer was not in a position to bid, on an equal basis, for the contract
finally concluded.
26.7 Any unequal treatment of a successful tenderer, including through providing information not provided to
all tenderers, for example as a result of questions asked before, or during, the procurement process.
26.8 Failure to undertake a new procurement at the end of a previously procured contract.

27. Must suppliers comply with procurement rules in their own contracts?
27.1 Yes in relation to sub-contracts relating to the procurement service if this is required in the procured
contract terms.
27.2 Yes, generally, if the supplier fulfils the definition of a "Contracting Purchaser" under the procurement
rules. This definition includes being wholly or mainly funded by other Contracting Authorities and having
majority Contracting Authority representation at board, or member level.These tests, particularly the one
relating to funding, can cover charities and other public benefit organisations.
27.3 Generally, a good practice and proportionate procurement policy is often desirable.

ACEVO Commissioning Support Helpline

Contact us for advice and support on procurement and commissioning issues:
E: commissioning.support@acevo.org.uk
T: 020 7280 4937
W: www.acevo.org.uk/commissioning

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ACEVO is the professional body for third sector chief executives.

We connect, develop, support and represent our members, to increase the
sector’s impact and efficiency.

We promote a modern, enterprising third sector, and call upon

organisations to be:

• Professional and passionate in achieving change and delivering results

• Well-led, with a commitment to professional development, training and
diversity
• Well-governed and accountable, with robust and fit-for purpose
systems to protect independence and enable effective decision-making
• Enterprising and innovative, taking a businesslike approach to
funding issues and striving for continuous improvement and sustainable
development.

For more information, visit www.acevo.org.uk