Bidders are becoming more likely to challenge procurement decisions they don’t like, UKRC heard last week.
Andrew Daly, a partner specialising in procurement for Hempson’s law firm, told delegates that it was becoming more common for bidders to questions decisions during the standstill period.
This is the period that falls after the procurer tells the market who has won and before they sign the contract.
Some suppliers, Daly told the radiology event in Liverpool, are employing people to look for flaws in the procurement process so they can make a legal challenge.
“We went through a stage last year of getting about two or three challenges a week from disgruntled bidders, looking at challenging the robustness of the process,” he said.
Daly urged trusts about to embark on procuring new picture archiving and communications systems and radiology information systems to comply closely with the rules on procurement.
He talked through the requirements of the two main procurement routes for PACS and RIS; placing an ad in OJEU and using a framework contract drawn up by NHS Supply Chain.
This has been put in place to manage the market and support trusts needing to secure systems ahead of the end of the National PACS Programme contracts over the next two years.
The OJEU process could be time-consuming, Daly said. Procurers typically have a choice of using either a “restricted” procedure or a “competitive dialogue” procedure, which can be used for particularly complex contracts.
In both cases, procurers have to go through a particular series of steps, including publishing the OJEU notice, issuing a prequalification questionnaire, issuing an invitation to tender or participate in dialogue, notifying the bidders of the outcome and debriefing them.
It was important not to change the requirements during the process, or negotiate with bidders, or amend evaluation criteria once the bids are in.
“You can’t say, ‘That’s really good, I really wish we’d thought of evaluating that point,’ and add it in, because that will be discriminatory against the other bidders,” he said.
The framework process was simpler, as NHS Supply Chain had already done much of the groundwork, Daly said.
However, he added, “You’re still having to run some form of competition between suppliers, and you’re still having to say how you’re going to evaluate them.”
Whichever process trusts chose, he said, certain rules applied: “You have to ensure transparency and equal treatment between all the bidders.
"You need to disclose your selection and evaluation criteria. Make sure you procure what you advertise, and give the right level of debrief to bidders.”
Daly also advised trusts to define requirements precisely when drawing up a contract.
Most contracts include “entire agreement” clauses, which mean that only what is written in the contract is legally binding.
“If it’s not in the contract, it won’t apply. No matter how much work you spent on it, how much discussion you’ve had, how much you want it to apply, it won’t," he said.
"The contract has to nail down exactly what the provider will provide, what their KPI regime is and what the payment mechanism is.”