17 January 2012 | Tim Heywood
Can you engage with suppliers up front and stay within the EU procurement regulations? Yes – and that’s not the only misconception.
My new year’s resolution is to help bust some of the myths that still hamper effective public sector procurement. One such myth is that ‘pre-procurement’ engagement with the supply side is completely prohibited by the procurement rules.
Far from it. In fact the directive expressly permits what it calls ‘a technical dialogue’ in which a contracting authority may, before launching its award procedure, ‘seek or accept advice that may be used in the preparation of the specifications’. This is just one of the ways in which the rules, far from preventing common sense procurement, suggest how to go about it.
Their only word of warning is that the advice they receive must ‘not have the effect of precluding competition’. So if the rules allow pre-procurement market engagement, when many practitioners had long thought the opposite, how else might the rules surprise us?
Well, another myth is that any provider that had a hand in supporting the contracting authority’s preparations for the procurement must be excluded from the procurement itself.
Again, far from it. In fact, case law expressly forbids authorities from any such blanket ban. Instead, it requires the authority makes an informed, objective judgement based on the need to avoid giving that provider an unfair competitive advantage, but at the same time not barring them when to do so would be disproportionate.
Here, too, the rules invite the application of common sense and require authorities to anticipate risks and prepare for them. They also require authorities not to overreact, but instead to apply controls that do just enough to preserve a fair and open competition.
As UK central government steps up to the challenges of ‘lean sourcing’, departments can take a more robust and creative approach to organising and running meetings with the supply side, well before OJEU.
Planning and preparation are the secret. You know there’s a risk of actually giving one provider an unfair advantage. So plan to avoid it. Set up the venue, the agenda and timings of the meetings so that everyone can see they are getting the same treatment. Set out the authority’s requirements and share them with all the attending suppliers. Invite questions, comment and feedback. Prepare a text for authority staff to follow, brief them on the need for fair and equal treatment of the suppliers and have a clear set of objectives for the event.
Supplier days are a great way to encourage suppliers to talk to one another as well as to you. Why not provide the facilities for that so that the opportunity is not lost? Gathering reliable information from the supply side builds confidence in your ability to run an effective procurement. It is also vital in terms of obtaining market intelligence about what types of solutions may be out there. All this enables you to design and run a fit-for-purpose procurement, one that is lean (thus saving on process cost) and one that will deliver better outcomes for your end users and, importantly, the taxpayer.
☛ Tim Heywood is director, public sector and procurement at Burges Salmon
