HM Government may have circumvented normal procurement processes when it awarded businesses billions in quickie PPE contracts, but schools still need to tread carefully in this key area, says Lorraine Ashover of Minerva Procurement Consultancy.
The National Audit Office’s recent investigation into government procurement during the pandemic, with many companies apparently awarded multi-million pound contracts without having to navigate normal processes, will raise a hollow laugh in schools around the country.
School business managers know full well that they still have to follow the regulations to the letter when they start a procurement process or face some serious consequences.
I regularly read news stories about the implications of not following the correct procurement process in the education media. I’m sure you’ve read them yourself about businesses mounting a legal challenge, alleging that the trust concerned didn’t follow the proper processes.
Stories like these contain a serious lesson for schools and trusts up and down the country: if a supplier sees that the procurement process has not been followed to the letter there could be grounds for a legal challenge.
In most cases businesses that have lost out will be disgruntled and they might complain, but most will make the calculation that a legal challenge is not worth the time or the resources.
A challenge may be a small risk, but it’s important to avoid even the smallest exposure to that risk because the implications could be financially damaging.
The key to a comprehensive, watertight procurement process that doesn’t expose you to potentially expensive and drawn-out legal challenges is to get expert advice. A procurement specialist can check your tender documents and make sure that they are compliant.
There is risk with all the main procurement processes, but the risks multiply as they become larger and more complex, such as those that breach the threshold and need to be run in alignment with the Public Contracts Regulations 2015. If, for example, you don’t make it clear in above threshold catering tender documentation that only the top three bidders will be invited to the presentation day then you can be challenged on that. Bidders who don’t make it to that stage might argue that if they were given the chance to present it would be clear that they were the most capable bidder. The answer is to spell out every rule of engagement so that there is not the slightest chance of a misunderstanding.
Making sure that you balance commercial awareness with a thorough understanding of public sector procurement processes is another insurance against a procurement process going wrong. For business managers who come into the education world after years in the private sector the realisation that the public sector rules are quite strict and restrictive on what can and can’t be done can sometimes be a shock. The fact that when using a restricted procedure they cannot negotiate on price once bids have been received and must award the contract to the bidder that has topped the scoreboard of evaluation criteria is one key difference. There is scope of course to clarify pricing, for example if there is a decimal point in the wrong place, but they can’t go back and ask to reduce the price. It might feel a little like having one hand tied behind your back, but rules are rules.
With the UK having left the EU at the end of last year there will be some uncertainty about how procurement processes will be affected. EU procurement legislation is enshrined in UK law through the Public Contract Regulations 2015. So despite many people’s hopeful question to me “we don’t have to run OJEU processes anymore” the main rules are still in force now. The way schools advertise opportunities has changed, though. At the moment schools advertise OJEU compliant tenders through TED (Tenders Electronic Daily). These tenders will have to be advertised in a different way through the new UK only Find A Tender Service (FTS).
Last year was full of uncertainty and watching for developments so it is fitting that it should end with us scanning for changes and announcements that will affect how procurement processes will work in 2021 and beyond. Something I’ll be writing on further is the recently launched government Green Paper “Transforming Public Procurement” which sets out their goals to simplify and speed up public sector procurement.
ESFA sends out bulletins every week for academies and local authorities which should contain all the up to date information you need on changes in this area – check out https://www.gov.uk/government/collections/esfa-update for the latest bulletin.
Stories about the government’s scramble for PPE at the start of the pandemic are jarring when you consider the care and attention schools must give to their own procurement processes. But as big users of public funds in what is set to be another age of austerity, it’s absolutely right that we should have no other choice.
Lorraine Ashover is managing director of Minerva Procurement Consultancy Services Limited. Focused exclusively on the school sector, Minerva has helped schools tender £85 million worth of contracts and generated more than £2.5 million of revenue, refunds and ongoing annual savings for its clients over the past four years. A new edition of Minerva’s free e-book, 84 Points for a Perfect Procurement Process, is available at www.minervapcs.com.contact