14 July 2011 | Catherine Wolfenden
How to draft a clear, concise notice that will leave no room for challenges
1. Don’t start drafting the notice too early. Make sure you know exactly what you want to procure and what procedure you want to use before you start drafting. Once the notice has been published, you won’t be able to change it and may have to start the procurement process again if you need to change the subject matter, or the process used. Ideally, don’t start drafting the OJEU notice until you have prepared the tender documents. At that stage you should know exactly what it is that you want to procure.
2. Get the level of detail right. Strike a balance between leaving flexibility to make changes and letting market players know if they want to express an interest in the contract. If there isn’t enough detail, a supplier who didn’t express an interest may challenge the process on the basis that it would have bid if what was being procured had been properly explained in the notice.
3. If you might want to extend the length of the contract or the range of goods or services being procured, say in the notice. Otherwise any future extension might need to be retendered.
4. Make sure your language is clear. That will reduce the risk of a supplier claiming they missed out on the contract because they didn’t understand what was being procured. Remember that the notice needs to be understood by potential suppliers across the EU.
5. If you will be shortlisting bidders to receive an ITT, you must specify the criteria for the shortlist or explain that this will be included in the PQQ.
6. Specify a realistic timetable for procurement. If the timetable slips, that may open the door to a legal challenge from a supplier who did not express an interest in the contract, but would have been interested in a process with a slower timetable.
7. If you are carrying out a collaborative procurement, you must ensure that there is a clearly defined list – or a link to a list – of which public authorities will benefit from the contract or might call off under a framework.
8. Make sure the point of contact you give is someone who will actually be contactable, who understands the process and will be able to answer queries from suppliers correctly.
9. If you plan to allow variant bids outside the scope of the requirement, say so in the notice, or you are unlikely to be able to allow them later.
10. Get the title of the contract right. It will be used to link to the notice on the OJEU website, so potential suppliers need to understand from the title whether the contract is one they might be interested in.
☛ Catherine Wolfenden is a partner at Osborne Clarke
