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discretionary exclusion grounds. Bidders will therefore need to take more care over their supply chains, ensure they meet the required standards and be able to fully answer relevant questions about them. One positive is that bidders should be getting better warning that a procurement is due to be launched. Contracting authorities (but not private utilities) expecting to pay more than £100 million under relevant contracts in the coming financial year are required to publish a pipeline of those contracts having an estimated value of more than £2 million. What should bidders do and when? While the requirement to publish performance data is likely to only apply to contracts entered into under the new rules, contracting authorities may seek to publish performance data on all contracts. Care will be needed to ensure that confidential data in contracts is not published as part of performance metrics. Bidders should take time now to: • Review commercial and technical information used in performance management to indicate which data should be redacted if the contracting authority wishes to publish performance data.
• Ensure that KPIs used in current contracts are drafted appropriately and there are sufficient warnings if a metric is likely to be missed. Failures to meet current KPIs could have an influence on future contract bids. • Review the list of exclusion grounds in the Bill. Bidders should take steps so that they avoid falling into any ahead of them coming into effect. This goes for the bidder's supply chain as well. • Take stock of their supply chains and ensure that they do not represent a risk to winning (and keeping) a contract. Consider including policies governing behaviour in sub-contracts, particularly relating to standards which (if breached) could lead to exclusion from public contracts.
and allocate resource to projects which align with their strategy. It may result in procurements being more competitive and challenged more regularly as most bidders will be better prepared and more specifically targeting relevant contracts, so this should be anticipated. Bidders should look to have a firm understanding of their business, ensure their supply chain is strong and healthy and their contracts are realistic in terms of performance requirements. Plan to allocate the resource needed to manage the company's public sector activity to give it the best chance of success.
Reporting and ongoing due diligence will also be key. Bidders will need to be alive to the health of their supply chains and putting forward the best teams for public contracts. If not already there, reporting obligations should be built into these subcontracts.
Martin Fleetwood is a Consultant at Addleshaw Goddard’s Transport practice. The Rail Team has over 30 lawyers who advise clients in both the private and public sectors across a wide range of legal areas. As well as contractual issues, the team advises on operational matters, franchises, concessions, finance, regulatory, property, employment, environmental and procurement issues.
Better opportunities for diligent bidders The obligation on contracting authorities to publish pipelines of contracts should allow diligent bidders to identify opportunities
Disclaimer: This article is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.
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