Global menu

Our global pages

Close

An informal outlet for redress? Public contracts and the Tender Advisory Service

  • Ireland

    20-04-2017

    Clients bidding for public contracts often ask what their options are if they have concerns about the conduct of a procurement process.

    The ‘nuclear’ option – court action – is, for many, an unattractive one, not least because of the considerable costs involved in issuing court proceedings and the very real fear that if the decision goes against them, the complainant will be liable to pay the costs of the other party as well. There is also an unwillingness on the part of many suppliers to issue proceedings whilst a process is ongoing: why challenge if there is a possibility that you might still win? And for suppliers in the SME sector in particular, there is a general reluctance to be perceived as seeking to bite the hand that feeds them. So what are the options for a supplier who wishes to raise concerns about public
    procurement practice?

    The Tender Advisory Service (TAS) commenced operation in February 2015 and provides an informal outlet for potential suppliers to raise concerns about live tender processes carried out by the Office of Government Procurement (OGP) or other public sector contracting authorities (excluding commercial semi-state bodies). Similar in ways to the Mystery Shopper Scheme operated by the Crown Commercial Service in the UK since 2011, the TAS is intended to act as an impartial broker between the supplier and buyer and is managed, free of charge, by the OGP.

    So how does the TAS work?

    It is a requirement that a supplier seeking to avail of the service must first have exhausted the normal avenues of communication provided for in the public tendering process, ie the clarification process. Once this requirement is satisfied, suppliers must complete a Standard Enquiry Form and contact the OGP’s Customer Service Desk. The enquiry is then passed on to the TAS Policy Unit which will contact the relevant contracting authority on behalf of the supplier to clarify or query tender documentation and, where necessary, make suggestions to the contracting authority aimed at resolving the issues raised. For more complex matters, an expert panel made up of procurement officials working either in the OGP or in the defence, education, health or local government sectors is available to provide advice.

    In order for a query to be addressed by the TAS, suppliers must meet the following ‘eligibility criteria’:

    • the Request for Tender must have been published on or after 1 February 2015
    • the supplier must have registered an interest in the tender process
    • the supplier must have exhausted the clarification process provided for in the Request for Tender, and
    • a Standard Enquiry Form must have been completed and sent to the TAS at least six days prior to the tender closing date.

    How busy has the TAS been?

    An interesting report produced by the OGP1 on the service’s first 12 months of operation indicates relatively low uptake of the service, with only 27 suppliers spread across a range of sectors (IT, construction, transport and medical supplies) engaging with the TAS. Contract values ranged from €126,000 to €40,000,000 (ex VAT). Issues raised included queries on thresholds, lotting, evaluation criteria, and the potential exclusion of SMEs. The majority of the issues raised were in respect of above threshold contracts.

    Of the 27 enquiries raised, only four were deemed to be eligible for intervention by the TAS, with the issues raised relating to the tender specification; the lotting strategy; the terms and conditions set out in the tender documents; and requests for sample work. Of these four enquiries, the outcomes included a broadening of the tender specification together with an extension to the tender closing date. The complaint relating to lotting resulted in the reconsideration by the contracting authority of its strategy. No action was considered necessary in the two other cases.

    Of the enquiries received which were considered to be ‘ineligible’, a large number were general procurement queries unrelated to a particular live tender process. In seven out of the 27 enquiries received, the supplier had either not exhausted the clarification process or had engaged with the TAS too late, ie following the tender closing date.

    Just how effective is the TAS?

    The OGP report indicates that initial feedback from industry representatives has been positive and it is beyond dispute that the TAS represents ‘an important step [in] facilitating engagement between tenderers and contracting authorities and enhancing openness and transparency in the procurement process’. But it’s also clear from the report that more needs to be done to increase supplier awareness of the service and make it an effective deterrent to poor procurement practice. In contrast to the Mystery Shopper Scheme in the UK which produces regular publicly available reports on the results of cases it has investigated, and has a strong deterrent value (it names the contracting authority concerned whilst preserving the anonymity of the supplier or potential supplier), there is some way still to go before the TAS can be considered a fully
    effective tool for suppliers concerned about potentially poor public sector procurement practice.

    The TAS section on the OGP website can be found at the link below:
    http://ogp.gov.ie/ga/tender-advisory-service-2/

    http://ogp.gov.ie/ga/tender-advisory-service-2/

    For more information contact

    Áine Smith
    Consultant
    +353 1 6441 474
    ainesmith@eversheds-sutherland.ie

    Ciara Dooley
    Solicitor
    +353 1 6644 273
    ciaradooley@eversheds-sutherland.ie

    This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

    < Go back