[White Paper] Asking for feedback or challenging DOS tenders

How can SMEs challenge Digital Outcomes and Specialists tenders or ask for feedback if not successful? Find out in this white paper, written with our partner Lisa Downs from LJD Law.

Have you ever considered challenging the UK Government because you haven’t been successful in a public sector tender on the Digital Outcomes and Specialists framework? For many unsuccessful bidders, it’s not something that is decided lightly or without sufficient ammunition. Even more so for unsuccessful bidders who are SMEs. Many don’t challenge because:

• They think it will affect future procurement opportunities
• They can’t easily unravel a vague and confusing rejection notice (whether during the sift process or further down the procurement process)
• The amount of time and resources a challenge will have on their business, in addition to legal costs, can’t be justified.

In this white paper we discuss how SME’s can overcome some of these hurdles.

The paper has been developed in partnership with Lisa Downs from LJD Law . It is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action because of the contents of this document.

If you do receive a rejection notice and don’t understand it or think that something just doesn’t feel right and you’ve been unfairly rejected, please don’t hesitate to contact Lisa Downs at LJD Law on lisa@ljdlaw.co.uk for an initial and no obligation chat.

Understanding the Digital Outcomes and Specialists evaluation criteria

To be able to successfully challenge an award decision, suppliers first need to understand how public sector buyers do their evaluation on the Digital Outcomes and Specialists framework.

There are two evaluation criteria on DOS that buyers will use regardless of the Lot: price of the proposal and technical competence eg. how well the supplier’s proposal or skills meet the buyer’s needs. The other evaluation criteria is Lot specific:

• For Outcomes and Specialists suppliers are evaluated on cultural fit, for example how the supplier will work in your organisation.
• For Research Participants buyers will consider availability.

Now that you understand how the process works, let’s try and tackle some the three most common hurdles stopping suppliers from tacking action

Fear of the negative impact on future DOS procurement opportunities

From a legal perspective, this is probably the simplest and easiest one to deal with. EU principles surrounding equal treatment and non-discrimination prevent this from happening.

However, from a business perspective, it can sometimes be difficult for a company to get their head into this space despite what the law says. But we’re only talking about the initial steps of a challenge – an initial request asking for more information. Try not to think about formal legal proceedings at this stage and how much time, resources and costs that will involve.

Your initial contact should be enough to put the UK Government on notice that there might be a potential challenge looming. In most of the cases that we’ve worked on, this initial contact has been all that was needed to restart a procurement that had clearly been run in breach of the Public Contracts Regulations 2015.

You also need to bear in mind that, depending on where in the procurement process you have been rejected, there might be tight time limits on when you need to send your initial response.

Difficulties unravelling a vague and confusing rejection notice (sift process or otherwise)

Once you’ve got your head around taking on the UK Government, you need to think about how you are going to get more information about why you weren’t taken through to the next (or possibly final) round.

Once a buyer has published its requirements and evaluation criteria, if a buyer doesn’t want to take all the suppliers through to evaluation it will need to shortlist or “sift” interested suppliers.
It is not usual for bidders to find it difficult to unravel a vague and confusing rejection notice – whether as a result of the sift or evaluation process. We’ve yet to come across a rejection notice that is clear and consistent with the criteria which should be used during the sift process or the eventual evaluation methodology.

There may be several questions that need to be raised, but these 3 will likely apply in all cases:

• Look at the original procurement documents to see what it said about (as applicable) the criteria that would be used during the sift process or how your tender would be evaluated. Does that information tally with the information they’ve given you in their rejection notice (e.g. does the tender list other criteria or information that will be considered, but that other criteria or information isn’t referred to in the scoring in the rejection notice)? If not, your response should clearly identify the discrepancies because they cannot award a contract based on sift or evaluation criteria that is different to that stated in their original procurement documentation.
• Do you understand their reasons for the scores they’ve given you (e.g. they’ve given you a low mark of 1 but a corresponding positive comment)? If not, ask for further information and how their reasons/scoring links back to (as applicable) the sift criteria or evaluation methodology.
• Ask them to provide details of the other bidders scores against each (as applicable) sift or evaluation criteria/sub-criteria, together with the reasons for the award of such scores. Chances are they’ve only given you brief information about the successful bidder(s) – but try to extract the required information about unsuccessful bidder(s) too (although note that the DOS buyers guide tells buyers not to share details of other unsuccessful bidder(s) scores).

Remember that the aim of your initial response is to gather as much information as you possibly can at this stage to see whether there is in fact supporting evidence to mount a legal challenge.

It is also worth bearing in mind that under the Public Contracts Regulations 2015 certain information must be included in rejection notices (which would include Standstill letters) to ensure that unsuccessful bidders are sufficiently debriefed. Don’t be afraid to cite what the law says.

Time and resources needed to do all this!

As above, try not to think about formal legal proceedings yet. Pulling together an initial response doesn’t have to be time consuming. Even if the value of the contract is low, you’ve still spent a considerable amount of time already in putting your tender together and so it’s obviously something you want to win. Pulling together a summary of your areas of concern can be done in just a few hours.

Getting legal advice and input on the initial response (so your summary) can make a huge difference and doesn’t have to be expensive. We’d never recommend that the initial response comes from a lawyer – unless of course time pressures mean there is no other option – but an experienced public procurement lawyer will be able to put enough detail in the challenge letter to show that you mean business.

We’ve seen both low and high value procurements challenged and re-started because of simple errors that the evaluators have made.