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This article is taken from March's public matters newsletter. Click here to view more articles from this issue.

A couple of months ago Anja Beriro wrote an article looking at some European procurement cases, one of which focused on award criteria, what are usually called evaluation criteria in the UK. Over the last six months or so we have advised on a number of procurements under the Public Contracts Regulations 2015 (PCR) where evaluation criteria have been a key area of advice, at all stages of the procurement. Here are some of the key messages:

Don’t confuse your evaluation criteria with your specification

Your specification sets out what you require the contractor to provide during the term of the contract. This can be set out in a number of ways: a narrative document, a list of requirements, a table of responsibilities. However it is set out, the key point is that it is something that can be attached to the contract and that is on the contracting authority’s terms. Clearly in some types of procurement, such as competitive dialogue, some details of the specification may evolve during the dialogue sessions but there should always be a core set of requirements that are the minimum that the contracting authority will accept. The evaluation criteria are how the contracting authority will assess which bidder provides the best response to the requirements. In a very basic procurement it may be enough to ask bidders to confirm that they are able to deliver the specification. However, mostly, the contracting authority will wish to understand the methodologies and technologies that the bidders will utilise. For example, part of specification for printers may be to reduce the overall spend on printing over a five year period. Bidders could be asked as part of the evaluation criteria to describe the methods they would use to reduce printing and to show how this would be evidenced. Evaluation criteria may well reference parts of the specification so that bidders are able to better understand how the contracting authority expects the bidder to respond.

Don’t expect bidders to be mind readers

This is another way of saying ‘don’t use undisclosed sub-criteria’. Particularly in higher value or more complex procurements a one line evaluation criterion is usually not enough and when probed the contracting authority can usually give various examples of what they would expect to see in the responses to that question. There is sometimes a fine line to be drawn between being clear about what the contracting authority wants and ‘coaching’ the answers out of bidders. However, if a contracting authority can say that it would only give a particular score if bidders cover certain topics or issues then it is much better to say this to bidders so that they understand how they can achieve a ‘good’ or an ‘excellent’. What the contracting authority doesn’t need to do is tell the bidders the detail of how that topic should be addressed. Another way to test this is to ask whether all bidders would interpret the question in the same way. If it appears that the bidders would be able to make different interpretations of the criterion then it would wise to add more detail around what the contracting authority is expecting.

It’s never too late to turn the clock back – well almost never!

This is particularly important to remember when evaluating tender responses. Firstly, for any good evaluation you need time, rushing an evaluation process is where things start to go wrong as mistakes in numbers are not picked up or the detail in a response may not be fully recognised. Secondly, proper moderation is key to picking up any potential errors before the scores are released to bidders. By getting someone involved in the procurement but not in the initial evaluation to robustly challenge the original evaluators’ scores and reasoning allows the contracting authority to be confident that the criteria (and sub-criteria where applicable) have been correctly interpreted and applied. It’s also worth checking that the right scoring methodology has been used, for example, did the documents say that ‘half’ points could be given or only whole numbers? Make sure the scores given match what the tender documents say. If it gets to a point where the scores have been shared with the bidders and an error comes to light then there are three options: continue on the basis that the error is minor or the bidder is unlikely to challenge; abandon the process and start again; or, go back and rescore all the tender responses either entirely or a particular question. The third option is often overlooked or seen as too complicated. However, particularly if time is tight (it usually is!) and it is possible to get someone uninvolved in the original evaluation to undertake the process, then this is a relatively easy way to give a disgruntled bidder confidence that the evaluation has been done properly. Clearly it’s not without its risks but if the other option is to restart the whole process then it should be considered carefully.

Check, check and check again

Finally, this is something that seems too simple to have to highlight, but in the heat of the moment it’s easy to misread figures or put in the wrong version of some feedback. Get a second pair of eyes on the standstill letter, to check the easy stuff like whether the end date of standstill is correct, and also to cross-check the scores and make sure that they add up to the right number! In particular, if you are giving bidders both weighted and unweighted scores make sure that these make sense. If you have done a proper moderation then it shouldn’t be necessary to ask someone to sense check the more detailed feedback.

If you would like to discuss any of the issues raised in this article or have any other questions relating to a procurement that you are or are planning to run then please get in touch.