Contract Procedure Rules - Cornwall · A tender prepared by a Supplier seeking admission to a...

Contract Procedure Rules

1st April 2012

Cornwall Council - Contract Procedure Rules - 01.04.12

Contents Page Directive

2004/18/EC Public

Contracts Regulations

1. Introduction 4 53 30(b)

2. Definitions 4

3. Compliance 10

4. Probity, Declarations of Interest and Prevention of Corruption

10

5. Delegated Authority 11

6. Exempt Contracts 11 16 6

7. Waiver of Contract Procedure Rules 13

8. Impact of Funding Given to Other Organisations 13 8 34

9. Estimating the Contract Value 13 9 8

10. Prior Information Notices or Periodic Indicative Notices

14 35 11

11. Advertisement 14 35-38 8

12. Low Value Procurement 15

13. Intermediate Value Procurement 15

14. High Value Procurement 15

15. Contracts Subject to the Regulations 15 7 8

16. Open Procedure 16 28, 38, 39 15

17. Restricted Procedure 17 28, 38, 40 16

18. Negotiated Procedure 18 28, 30, 31, 38, 40

17

19. Competitive Dialogue Procedure 19 29, 38, 40 18

20. Dynamic Purchasing Systems 20 33 20

21. Pre-qualification 20 44-51 23-26

22. Lists of Accredited Suppliers 20

23. Invitation to Tender or Invitation to Negotiate 21

24. Electronic Tendering 23 54 21

25. Submission, Receipt and Opening of Tenders 23

26. Tender Evaluation 24

27. Abnormally Low Tenders 24 55 30


Page Directive 2004/18/EC

Public Contracts

Regulations28. Clarification Procedures and Post Tender

Negotiation 24

29. Bonds, Guarantees and Insurance 25

30. Awarding Contracts 25 32

31. Debriefing 26 41 32

32. Contract Award Notice 26 35(4) 31

33. Letters of Intent 26

34. Contract Terms and Conditions 27 23 9

35. Contract Extension / Variation 27

36. Early Termination of Contract 27

37. Execution of Contracts 27

38. Records of Tenders and Contracts 28 43 32

39. Nominated and Named Sub-Contractors 29

40. Partnering Arrangements 29

41. Framework Agreements 29 32 19

42. Central Purchasing Bodies 30 22

43. Joint Procurement 30

44. Procurement of Consultants 30

45. Statistical Returns 31 76 40

46. Annual Report to the Executive 31

47. Review and Amendment of Contract Procedure Rules

31

48. Financial Thresholds 31

49. Guidance

31

50. Procurement Assurance Scheme and Risk Assessment

32

51. Contract Management and Review 32

52. Concession Contracts 32

53. Contract Claims - Specific Requirements for Construction Contracts

33

54. Complaints and Disputes 33


Page Directive 2004/18/EC

Public Contracts

Regulations

Appendix 1: Categories of Services 34

Where appropriate, all references in these Rules to timescales are those quoted in The Public Contracts Regulations 2006 (as amended). Please note that slightly different timescales may apply when using The Utilities Contracts Regulations 2006 (as amended). Further advice is available from the Head of Procurement and Commissioning.


CONTRACT PROCEDURE RULES

1. INTRODUCTION 1.1 Contract Procedure Rules set the standards and framework within which Contracts

shall be let on behalf of the Council. 1.2 The main purpose of the Contract Procedure Rules is to ensure that all Contracts are

entered into lawfully and on the most economically advantageous terms for the Council.

1.3 The Schools Fair Funding Scheme (FFS) governs the management by each school of

its delegated and devolved budget as determined in Section 48 of the School’s Standards and Framework Act 1998. Schools are expected to follow the Contract Procedure Rules but where there is conflict between the Contract Procedure Rules and the FFS, the FFS will take precedence.

1.4 The Council’s DSO, CORMAC, has successfully tendered for a Term Contract for

Minor Civil Engineering and Highway Maintenance Works and any Authorised Officer tendering for any works within that description shall consider whether the work should be undertaken by CORMAC without the need for undertaking a separate tender process.

1.5 The Contract Procedure Rules must be complied with strictly and set out the minimum

requirements. However, a more thorough procedure may be considered appropriate for a particular contract.

(For example, it may not always be appropriate to make use of an exemption under

Rule 6 even if one might apply or be granted.)

2. Definitions “ACS” Directorate of Adult Care and Support; “Authorised Officer” A person with appropriate delegated authority to act on the Council’s behalf in a

particular matter;

“Buyer Profile” A dedicated online area set up by the Council containing information about the

Council’s procurement practices and intentions; “Central Purchasing Body”

A body which awards public Contracts, Framework Agreements or acquires goods or services intended for one or more contracting authority;

“Code of Practice”

The document to be read in conjunction with and which explains and expands on the Contract Procedure Rules;

“Competitive Dialogue Procedure”

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A procedure in which any Supplier may make a request to participate; and whereby the Council conducts a dialogue with the Suppliers participating in that procedure with the aim of developing one or more suitable alternative solutions capable of meeting its requirements and which is the basis upon which the Suppliers chosen by the Council are invited to tender. It is for use in the award of Particularly Complex Contracts where there is a need for the Council to discuss all aspects of the proposed Contract with Suppliers;

“Constitution”

The Constitution of Cornwall Council;

“Contract”

A Contract is a legally binding agreement which:- may be oral, written, partly oral and partly written or implied from conduct between

the Council and another legal body or individual, gives rise to obligations which are enforced or recognised by law, commits the Council to make payment or provide some other consideration (e.g.

the provision of a service, the building of a new school etc). For the avoidance of doubt Contract shall include a number of Contracts where a relevant European Union or statutory provision requires aggregation;

“Contract Award Notice”

A notice announcing to whom a Contract has been awarded;

“Contract File” A file with a unique Contract File number which contains all the information relating to

a procurement;

“Contract Notice” A notice sent to the OJEU in accordance with the Regulations;

“Contracts Database” A database held and maintained by the Strategic Procurement Manager containing

details of all Contracts entered into by the Council which are in excess of £10,000 in value;

“Contract Subject to the Regulations” A Contract for a value above OJEU thresholds as amended from time to time; “Corporate Director”

A person employed by the Council and designated as a Corporate Director as set out in the Constitution;

“Corporate Leadership Team”

The Team by means of which Corporate Directors discharge their corporate responsibilities;

“Corporate Procurement Strategy” A strategy setting out the strategic procurement objectives for the Council for the

coming three years. This will be supported by an annual business plan setting out major procurement projects;

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“Council” Cornwall Council; “CSF” Directorate of Children, Schools and Families; “Directive”

The EC Public Procurement Directive 2004/18/EC or the Utilities Directive 2004/17/EC. Reference to any Directive shall unless the context otherwise requires include reference to any such Directive as amended, replaced, supplemented or re-enacted from time to time. Where appropriate, all references in these Rules to timescales are those quoted in The Public Contracts Regulations 2006 (as amended). Please note that slightly different timescales may apply when using The Utilities Contracts Regulations 2006 (as amended). Further advice is available from the Head of Procurement and Commissioning;

“Direct Services Organisation”

An organisation which consists of workers directly employed by the Council to carry out work specified under the Local Government Acts. The definition includes, but is not limited to, CORMAC, the Cornwall Transport Organisation Engineering Workshops and Commercial Services;

“Dynamic Purchasing System” A completely electronic system of limited duration which is established by the Council

to purchase commonly used goods, works or services; and is open throughout its duration for the admission of Suppliers who satisfy selection criteria specified by the Council and who submit an Indicative Tender to the Council, or body operating the system on its behalf, and who comply with the specification;

“Economically Advantageous Offer” The optimum combination of whole life costs and benefits which meets the Council’s

requirements. Such term is equivalent to the EU procurement requirement “most economically advantageous offer”;

“European Economic Area”

The Member States of the European Union, and Norway, Iceland and Liechtenstein;

“Evaluation Team” A team established by an Authorised Officer with responsibility for evaluating tenders;

“Executive Decision” A decision made or to be made by a decision-maker in connection with the discharge of a function which is the responsibility of the Executive of the Council;

“Expert” A person who is a specialist in a subject and who may be a consultant;

“Framework Agreement” An agreement, or other arrangement, between one or more contracting authorities and

one or more Suppliers, the purpose of which is to establish the terms governing Contracts which may be awarded during a given period, in particular with regard to price and where appropriate, the quantity envisaged;

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“Government Procurement Agreement”

The successor agreement to the General Agreement on Trade and Tariffs. The main signatories other than those in the European Economic Area are: the USA, Canada, Japan, Israel, South Korea, Switzerland, Norway, Aruba, Hong Kong, China, Liechtenstein and Singapore;

“High Value Procurement”

Procurement where the estimated value of the Contract over its term (whole life cycle):- (a) is more than £50,000 (or £100,000 in the case of building or civil engineering works); or (b) where the risk in a specific procurement is perceived to be high in Contracts valued at below £50,000 (or £100,000 in the case of building or civil engineering works); and (c) is up to the EU procurement thresholds;

“Housing Related Support Services”

As defined by the Cornwall Supporting People Service Eligibility Criteria; “Indicative Tender” A tender prepared by a Supplier seeking admission to a Dynamic Purchasing System

which sets out the terms upon which it would be prepared to enter into a Contract with the Council should the Council propose to award a Contract under the system;

“Intermediate Value Procurement” £10,000 up to £50,000 over its whole life

(£20,000 up to £100,000 over its whole life for building or civil engineering works);

“ITN” Invitation to negotiate; “ITT” Invitation to tender; “Key Decision”

An Executive Decision which is likely:- (a) to result in the Council incurring expenditure which is, or the making of savings

which are, significant having regard to the Council’s budget for the service or function to which the decision relates, or

(b) to be significant in terms of its effects on communities living or working in an area comprising two or more electoral divisions within the area of the Council;

“Letter of Intent”

Written communication from the Council confirming its intention to enter into a formal Contract;

“Low Value Procurement”

Procurement where the estimated value of the Contract is below £10,000 (or £20,000 in the case of building or civil engineering works);

“Member” An elected Member of the Council;

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“Member Procurement Champion” A Member who oversees the Council’s arrangements for procurement and Contract management;

“Monitoring Officer” The Head of Legal, Democratic and Procurement Services; “Negotiated Procedure” A procedure leading to the award of a Contract whereby the Council negotiates the

terms of the Contract with one or more Suppliers selected by it;

“Officer”

A person employed by the Council to carry out the functions of the Council;

“OGC”

Office of Government Commerce; “OJEU” Official Journal of the European Union; “Open Procedure” A procedure leading to the award of a Contract whereby all interested Suppliers may

tender for the Contract;

“Part A and B Services” The services set out in the Public Contracts Regulations 2006 (or any amendment or

successor legislation);

“Particularly Complex Contract” A Contract where the Council is unable to objectively define the technical means

capable of satisfying its needs or objectives or is unable to specify either the legal or financial make-up of a project and the use of either the Open Procedure or the Restricted Procedure would not be appropriate;

“Partnering Arrangement” An arrangement where two, or more, organisations develop a close and, generally,

long-term working relationship; “Pecuniary Interest”

Any personal or business interest which may conflict with a persons responsibilities with respect to the tender process, and the letting or managing of any contract;

“Personal Care Services” Services provided to people who have personal care needs as assessed by the ACS,

the CSF and the Integrated Mental Health Team (Cornwall Partnership Trust). As such these Personal Care Services can be provided to people of all ages whose needs may result from old age, physical disability, sensory loss, mental illness or learning disability. The ACS has implemented Fair Access to Care Services and uses the Eligibility Framework to determine people’s level of need (Critical, Substantial, Moderate or Low). The level of need will determine whether or not the ACS provides a service to meet that need;

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“PIN” Prior Information Notice or Periodic Indicative Notice for publication in the OJEU;

“Post Tender Negotiations”

Negotiations with any tenderer after submission of a Tender and before award of the Contract with a view to obtaining an adjustment in price, delivery or content;

“PQQ”

Pre Qualification Questionnaire;

“Preferred Partner” The partner with whom an organisation enters into a Partnering Arrangement;

“Procurement Assurance Scheme”(or “PAS”) A corporate scheme to ensure that all new programmes and major projects, above a defined value, receive early, rigorous, consistent, corporate scrutiny;

“Procurement Assurance Scheme Panel” A Panel comprising senior officers of the Council charged with reviewing all new programmes and major projects, above a defined value;

“Public Contract” A public services Contract, a public supply Contract or a public works Contract as

defined in the Regulations; “Purchasing Consortia” Associations of independent organisations that act together to procure for themselves

goods and/or services specific to their needs;

“Regulations” The UK regulations implementing the Directives as amended from time to time

(currently the Public Contracts Regulations 2006 and the Utilities Contracts Regulations 2006);

“Restricted Procedure” A two-stage procedure leading to the award of a Contract whereby only Suppliers

selected by the Council may submit tenders for the Contract; “RFQ” Request for quotation; “State Aid” Financial aid given to business by a Member State of the European Union; “Supplier”

Any person or entity, including companies or other bodies of persons providing, or seeking to provide, supplies, services or works to the Council;

“Tenders in Cornwall Website”

A website where all Council tender and quotation opportunities with an estimated value of £10,000 or above must be advertised.

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“Type of Procurement” Value of Contract

Low Value Procurement Up to £10,000 (£20,000 for building or civil engineering works)

Intermediate Value Procurement £10,000 up to £50,000 over its whole life (£20,000 up to £100,000 over its whole life for building or civil engineering works)

High Value Procurement £50,000 to OJEU thresholds (£100,000 for building or civil engineering works) over its term (whole life cycle)

Contracts Subject to the Regulations Above OJEU thresholds as amended from time to time over its term (whole life cycle).

3. Compliance

Every Contract entered into by the Council, which is not an Exempt Contract as

defined in Contract Procedure Rule 6, shall be entered into pursuant to or in connection with the Council’s functions and shall comply with:

(a) The UK Government’s Legal and Policy Framework for procurement, which

includes all relevant statutory provisions and EU law; (b) the Council’s Constitution including these Contract Procedure Rules and the

Financial Regulations; (c) the Council’s strategic objectives and policies including the Corporate

Procurement Strategy; (d) any Codes of Practice on Procurement issued from time to time by the Council.

At all times during the procurement process and contract management, the Council shall consider and implement the principles of non-discrimination, equality of treatment and openness.

4. Probity, Declarations of Interest and Prevention of Corruption 4.1 The highest standards of probity are required of all Officers and Members involved in

the procurement, award and management of Council Contracts. 4.2 If it comes to the knowledge of a Member or an employee of the Council that a

contract in which he or she has a pecuniary interest has been or is proposed to be entered into by the Council, he or she shall immediately give written notice to the Strategic Procurement Manager. The Strategic Procurement Manager shall report such declarations on a quarterly basis to the Monitoring Officer.

4.3 Such written notice is required irrespective of whether the pecuniary interest is direct

or indirect. An indirect pecuniary interest is distinct from a pecuniary interest in as much as it is not a contract to which the Member or employee is directly a party. A shareholding in a body not exceeding a total nominal value of £1,000 or 1% of the nominal value of the issued share capital (whichever is the less) is not a pecuniary interest for the purposes of this Contract Procedure Rule.

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4.4 The following clause must be included in every written Council contract:

“If the Contractor or any partner or director of the Contractor, any employee of the Contractor or any person acting on the Contractor’s behalf (whether with or without the Contractor’s knowledge) (a) has offered, given, agreed to give, received or solicited to or from anyone a

bribe, gift, consideration, inducement or reward of any kind for doing or not doing anything in relation to the Contract, the delivery of any Goods or Services, any other contract with the Council, a Customer or any contract with any other local authority or public body, or

(b) has committed any offence under the Prevention of Corruption Acts 1889 to 1916, or

(c) has given any fee or reward the receipt of which is an offence under Section 117(2) of the Local Government Act 1972, or

(d) has committed any fraud in connection with this or any other Council contract whether alone or in conjunction with a Council Member, contractor or employee.;

Then the Council may terminate the Contractor’s employment under the Contract by notice in writing which may have immediate effect. Any clause limiting the Contractor’s liability shall not apply to this clause.”

5. Delegated Authority 5.1 Any procurement carried out on behalf of the Council may only be undertaken by

officers with the appropriate authority to carry out such tasks in accordance with the Council’s delegation of responsibility which can be found in the Constitution.

5.2 It is the responsibility of Corporate Directors to ensure that Officers undertaking

procurement have the necessary knowledge, skills and training to fulfil that function. 5.3 Within approved budgets, Officers may be authorised to enter into a Contract or place

orders under a Framework Agreement which has previously been entered into by the Council.

5.4 Any contract awards which constitute a Key Decision under the Council’s Constitution or which involve any potential transfer of the Council’s employees to a Supplier shall be referred to the Corporate Director.

5.5 In order to facilitate training and understanding of these Contract Procedure Rules and

procurement best practice, each Corporate Director, must inform the Strategic Procurement Manager, as soon as identified, of officers in the directorate who authorise and award Contracts. This list will be used by the Strategic Procurement Manager to target those officers to ensure they receive the appropriate training.

6. Exempt Contracts (Article 16, Regulation 6 refers)

6.1 The following Contracts are exempt from the requirements of these Contract

Procedure Rules:

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(a) Contracts of employment; (b) Some Contracts for individual temporary agency staff (advice should be sought

from the Strategic Procurement Manager); (c) Contracts relating solely to the acquisition or disposal of an interest in land and

buildings which shall be dealt with in accordance with the Code of Practice for Land and Property Transactions in the Council’s Constitution;

(d) Contracts for urgent special educational needs or urgent social care, if in the opinion of the relevant Corporate Director, following consultation with the Strategic Procurement Manager, it is considered to be in the Council’s interests or necessary to meet its obligations under relevant legislation and demonstrates value for money to the Council;

(e) Contracts for residential and nursing care contracts which the Council has a duty to provide under section 21 and section 29(4) of the National Assistance Act 1948, section 117 of the Mental Health Act 1983, section 17 of the Children Act 1989 and section 2 of the Local Government Act 2000, if in the opinion of the Corporate Director, following consultation with the Strategic Procurement Manager, it is considered to be in the Council’s interests and demonstrates value for money to the Council;

(f) Contracts for Personal Care Services and Housing Related Support Services; (g) transactions conducted by the Head of Finance in respect of dealing in the

money market or obtaining finance for the Council; (h) Contracts entered into by or on behalf of the Head of Legal, Democratic and

Procurement Services for the appointment of barristers and/or Experts; (i) Contracts awarded to sole Suppliers because of exclusive rights (e.g. renewal of

licences or alterations to statutory undertaker’s, such as Water or Gas Companies, apparatus), but is subject to prior agreement from the Strategic Procurement Manager;

(j) the senior officer responsible for the client side/commissioning function for highways (“Head of Highways”), in consultation with the Head of Legal, Democratic and Procurement, may authorise an exemption from these Contract Procedure Rules where, in his opinion, compliance would prevent or hinder Direct Services Organisations from competing on an equal footing with other contractors, where such an organisation concerned has submitted or intends to submit a bid for a Contract. The Head of Highways will prepare and submit a quarterly report to the Strategic Procurement Manager in relation to any exemptions which have been authorised in this way; and

(k) Contracts that are required in circumstances of extreme urgency that could not have reasonably been foreseen (e.g. to secure a building or the ingress of water).

6.2 An exemption under this Rule allows a Contract to be placed by direct negotiation with one or more suppliers. However, no exemption can be used where the Regulations apply.

6.3 In order to secure value for money, the Council may enter into collaborative

procurement arrangements. Any contracts entered into through collaboration with other local authorities or other public bodies, where a competitive process has been followed that complies with the Contract Procedure Rules of the leading organisation (but does not necessarily comply with these Contract Procedure Rules), will be deemed to comply with our Contract Procedure Rules and no exemption is required. However, advice should be sought from the Strategic Procurement Manager.

7. Waiver of Contract Procedure Rules

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7.1 Waivers of any of these Contract Procedure Rules shall only be given in exceptional circumstances and only with the prior written approval of the Strategic Procurement Manager and the relevant Portfolio-holder or in their absence, the Portfolio-holder for Corporate Resources, Leader or Deputy Leader of the Council. A waiver may be used, for example, where an emergency involving immediate risk to persons, property or serious disruption occurs. Waivers may not be made retrospectively.

7.2 All waivers, and the reasons for them, must be recorded using the designated form

(available on the intranet). The Authorised Officer is responsible and accountable for making sure that the contents of the designated form are factually correct. The Authorised Officer should ensure that all supporting documentation is retained for auditing purposes. Should it be found that incorrect information has been knowingly submitted in order to obtain approval for a waiver of these Rules, the Authorised Officer will be reported to the Monitoring Officer and Strategic Procurement Manager. The Strategic Procurement Manager will prepare and submit a quarterly report to the Corporate Leadership Team on the action taken.

8. Impact of Funding Given to Other Organisations

(Article 8, Regulation 34 refers)

Before commencing a procurement the Authorised Officer must establish whether funding has been made available by the Council to any of the potential Suppliers. Where the Council undertakes to contribute more than 50% of the consideration to be effectively paid under a Contract, reference must be made to the Regulations to confirm whether they apply.

9. Estimating the Contract Value

(Article 9, Regulation 8 refers) 9.1 To ensure consistency, the estimated value of a Contract or Framework Agreement

should be calculated in accordance with the Regulations even where the Regulations do not apply.

9.2 The calculation of the estimated value of a Contract or Framework Agreement shall be

based on the total amount payable, net of VAT. This calculation shall take into account any form of option to the term of the Contract when estimating the total amount.

9.3 Officers shall consider whether the “aggregation rules” apply. The Council shall make

the best use of its purchasing power by aggregating purchases wherever possible. Where the Council has entered into or is expected to enter into several Contracts to fulfil a single requirement then the estimated Contract value, for the purposes of determining whether that particular Contract is above the relevant EU procurement threshold and subject to the Regulations, shall be the aggregate of the amount the Council expects to pay for all those Contracts. The Council may not enter into separate Contracts nor select a method of calculating the total estimated value with the intention of avoiding the application of the Regulations.

9.4 Consideration should be given to whether several smaller Contracts should be

aggregated to provide greater leverage, lower prices, lower transaction costs and improved management of the supply chain.

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10. Prior Information Notices or Periodic Indicative Notices (Article 35, Regulation 11 refers)

At the beginning of each financial year, the Council shall publish a PIN in the OJEU, or on its Buyer Profile, listing the Contracts or Framework Agreements for services and supplies that it expects to procure during that financial year with an estimated Contract value above the relevant EU procurement threshold. In relation to Contracts or Framework Agreements for the execution of works, the Council shall publish a PIN in the OJEU or on its Buyer Profile when the programme of works above the EU procurement threshold has been approved.

11. Advertisement

(for Intermediate Value Procurement, High Value Procurement and Contracts Subject to the Regulations) (Articles 35-38, Regulation 8 refers)

11.1 For Intermediate Value Procurements, tenders and RFQ’s shall be invited by an

advertisement on the Tenders in Cornwall website. 11.2 Subject to Rules 11.3 and 22, for all High Value Procurements, tenders shall be invited

by an advertisement on the Tenders in Cornwall website. The advertisement shall contain details of the proposed Contract and specify a time limit within which interested parties may express an interest in tendering for the Contract. After the expiry of the deadline date and subject to the chosen procurement process for expressions of interest, the Council shall send any party expressing an interest the relevant documentation.

11.3 In the event that the procurement is subject to the Regulations, then the appropriate

notice shall be prepared and published in the OJEU in addition to the requirements set out in Rule 11.2. The notice may not be published at a national level before the date the notice is sent to the OJEU.

12. Low Value Procurement (Up to £10,000 (or £20,000 for building or civil engineering works) over its whole life). 12.1 Competitive quotations are required for Low Value Procurements, Contracts or orders

and the most economically advantageous quotation must be accepted. Formal advertising is not required. A minimum of three written quotations shall be obtained from Suppliers and in addition (where applicable) from a Direct Services Organisation before a formal purchase order can be issued. The purchase order form shall specify the services, supplies or works to be provided and set out the price and terms of payment.

12.2 Where the corporate implications of a specific Low Value Procurement are perceived

to be significant, then consideration should be given to advertising the procurement and/or inviting formal tenders.

12.3 Any procurement that may involve a transfer of staff shall be treated as a High Value

Procurement.

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13. Intermediate Value Procurement

£10,000 up to £50,000 over its whole life (£20,000 up to £100,000 over its whole life for building or civil engineering works) 13.1 For all Intermediate Value Procurements up to £50,000, written quotations shall be

invited from at least three Suppliers and in addition (where applicable) to a Direct Services Organisation, through a RFQ document with attached terms and conditions.

13.2 For all Intermediate Value Procurements from £50,000 up to £100,000 for building and

civil engineering works, tenders shall be invited from at least three suppliers and in addition (where applicable) to a Direct Services Organisation.

13.3 Any procurement that may involve a transfer of staff shall be treated as a High Value

Procurement. 13.4 In some instances Intermediate Value Procurements may be subject to the light

regime of the Council’s Procurement Assurance Scheme. 14. High Value Procurement (£50,000 (or £100,000 for building or civil engineering works) up to the EU thresholds

over its whole life) 14.1 For High Value Procurements, tenders shall be invited from at least three Suppliers in

addition (where applicable) to a Direct Services Organisation. 14.2 For all High Value Procurements, the Authorised Officer must consider whether there

would be a benefit to the Council in inviting more than three Suppliers. 14.3 Any procurement that may involve a transfer of staff shall be treated as a High Value

Procurement. 14.4 High Value Procurements will be subject to the light regime of the Council’s

Procurement Assurance Scheme. 15. Contracts Subject to the Regulations

(Article 7, Regulation 8 refers) 15.1 Where the estimated value of a Contract exceeds the current EU procurement

threshold, then the Contract shall be tendered in accordance with the appropriate Regulations. Under the Regulations, a Contract may be tendered using an Open, Restricted or Negotiated Procedure or by reference to the Competitive Dialogue Procedure or Dynamic Purchasing System. A Contract Notice in the prescribed form shall be published in the OJEU in order to invite tenders for, or expressions of interest for, Part A service Contracts and supplies and works Contracts Subject to the Regulations. Contracts for Part B Services do not need to be advertised in the OJEU, although a Contract Award Notice should be published for Part B Services Contracts.

15.2 The Regulations set out the minimum timescales, which may be amended from time to

time, for receipt of expressions of interest and tenders. Where the Council has published a PIN announcing its forthcoming Contracts for the year ahead, the Council may rely on reduced timescales permitted by the Regulations if appropriate.

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15.3 Contracts subject to the Regulations will be subject to the full regime of the Council’s

Procurement Assurance Scheme.

16. Open Procedure (Articles 28, 38 and 39, Regulation 15 refers)

16.1 The Council should always endeavour to use the Restricted Procedure as the default process for its procurement.

16.2 Tendering under this procedure is not only “open” to the extent that the work must be

advertised but also to the extent that any Supplier expressing an interest is automatically entitled to tender.

16.3 The Council shall publicise its intention to seek offers in relation to the Contract by publishing a Contract Notice in the OJEU inviting tenders. The notice shall also be published on the Tenders in Cornwall website. The notice shall contain details of the proposed Contract and specify a time limit within which interested Suppliers may express an interest in tendering for the Contract. After the expiry of the deadline date for expressions of interest, the Council shall send any Supplier expressing an interest an ITT. The ITT shall specify the return date for tenders.

16.4 Once a request to participate has been received, the Contract documents shall be

dispatched to potential Suppliers within 6 days of receipt of that request. If a potential Supplier reasonably requests further information, such information shall be supplied, provided that such a request is made no later than 6 days before the deadline for the receipt of tenders. In the event that further information is supplied to a potential Supplier, the same information must be supplied to all other potential Suppliers at the same time.

16.5 The deadline for the receipt of tenders shall not be less than 52 days from the date of dispatch of the Contract Notice. Where a PIN has been published, the 52 day deadline for the receipt of tenders may be reduced to 36 days.

16.6 Where the Contract Notice has been sent electronically the deadline date for receipt of

tenders may be reduced by 7 days so the deadline shall not be less than 45 days from dispatch of the Contract Notice.

16.7 The deadline for the receipt of tenders cannot end on a public holiday, Saturday or

Sunday. 17. Restricted Procedure

(Article 28, 38 and 40, Regulation 16 refers) (Note: There are slightly different timescales when using The Utilities Contracts Regulations 2006)

17.1 This is the default procedure to be used for all procurement. The difference between

the Open and Restricted Procedures is that the number of Suppliers invited to tender is restricted. The procedure consists of two distinct stages: the selection of suitable tenderers from those expressing an interest and the Invitation to Tender.

17.2 The Council shall publicise its intention to seek offers in relation to the Contract by publishing as soon as possible a Contract Notice in the OJEU inviting Suppliers to

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send a request to be selected to tender. The notice shall also be published in the local press, on the Tenders in Cornwall website and in any appropriate national press and/or trade journal in order to target the appropriate market for the particular Contract. The notice shall contain details of the proposed Contract, specifying that the Restricted Procedure is being used and a time limit within which interested parties may express an interest in tendering for the Contract. The parties who expressed an interest shall then be evaluated, using a PQQ Where there is a sufficient number of suppliers a minimum of five Suppliers shall be invited to tender.

17.3 The Contract Notice must state that a minimum of 5 and where appropriate an envisaged maximum number of potential suppliers, sufficient to ensure genuine competition, will be invited to tender.

17.4 The deadline for the receipt of requests to participate shall not be less than 37 days from the date of dispatch of the Contract Notice. In cases of urgency that render such a time limit impractical, this may be reduced to 15 days.

17.5 Where the Contract Notice has been sent electronically the deadline date for receipt of

requests to participate may be reduced by 7 days so the deadline shall not be less than 30 days from dispatch of the Contract Notice.

17.6 All Suppliers wishing to participate must submit their requests within the specified

period.

17.7 Contract documents together with the written ITT will only be sent to those Suppliers which have been selected. The ITT’s shall be sent in writing simultaneously to each Supplier invited to tender.

17.8 The deadline for the receipt of tenders shall not be less than 40 days from the day after the date of dispatch of the written ITT. Again, in cases of urgency where such time limits are impractical, this may be reduced to 10 days.

17.9 Where a PIN has been published, the 40 day deadline for the receipt of tenders may

be reduced to 36 days from the date of dispatch of the written ITT.

17.10 The deadline for the receipt of tenders cannot end on a public holiday, Saturday or Sunday.

18. Negotiated Procedure

(Articles 28, 30, 31, 38 and 40, Regulation 17 refers)

18.1 The Strategic Procurement Manager must be consulted if this procedure is likely to be used. The Strategic Procurement Manager and the Head of Legal, Democratic and Procurement Services must formally approve its use prior to publishing the Contract Notice.

18.2 Negotiated Procedures are where the Council consults the potential Suppliers of their

choice and negotiates the terms of the Contract. The situations where the Regulations allow the Negotiated Procedure to be used vary according to whether it is a Contract for works, supplies or services.

18.3 The Negotiated Procedure may be used with or without the publication of a Contract

Notice in the circumstances outlined in the Regulations, these Rules and the Code of Practice.

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18.4 In the event that the value of the Contract exceeds the EU procurement thresholds

there are certain limited situations where the Regulations allow the Council to use the Negotiated Procedure for Part B services. The Negotiated Procedure will only be applicable where the Council is unable to ascertain prior overall pricing of the services or is unable to draw up specifications which are sufficiently precise.

18.5 Where the Negotiated Procedure with the publication of a Contract Notice is to be

used, the Council shall publicise its intention to seek offers in relation to the Contract by publishing a Contract Notice in the OJEU as soon as possible inviting requests to be selected to negotiate. The Contract Notice must state that the Negotiated Procedure is being used.

18.6 The deadline for the receipt of requests to be selected to negotiate shall not be less

than 37 days from the dispatch of the Contract Notice. In cases of urgency that render such a time limit impractical, this may be reduced to not less than 15 days. Where the Council has sent the Contract Notice electronically the deadline may be reduced to not less than 10 days from the date of dispatch.

18.7 Only Suppliers selected by the Council are invited to negotiate and shall be selected

on the basis of the published pre-qualification criteria. A minimum of three Suppliers should be invited to negotiate following publication of a Contract Notice. The Council will write simultaneously to each Supplier inviting them to negotiate.

18.8 The time limit for receipt of tenders must be extended appropriately where tenders can

only be submitted after a site visit or on the spot inspection of the documents supporting the Contract documents.

18.9 The deadline for the receipt of tenders cannot end on a public holiday, Saturday or

Sunday. 18.10 If publication of a Contract Notice in the OJEU is not required, then advertising

requirements are the same as in the Restricted Procedure, except that the Contract Notice shall state that a Negotiated Procedure is being used except where the procurement falls within one of the exemption provisions of the Regulations.

18.11 The Council shall keep proper records of all negotiations. At all times during the

negotiations, the Council shall consider and adhere to the principles of non-discrimination, equal treatment and transparency.

18.12 The Council may stipulate that the negotiations with Suppliers take place in successive

stages in order to gradually reduce the number of tenders, by applying the award criteria as set out in the Contract documents.

19. Competitive Dialogue Procedure

(Articles 29, 38 and 40, Regulation 18 refers) 19.1 This is a new procedure that came into effect from 2006 when the Directives were last

revised. The Strategic Procurement Manager must be consulted if this procedure is likely to be used. The Strategic Procurement Manager and the Head of Legal, Democratic and Procurement Services must formally approve its use prior to publishing the Contract Notice.

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19.2 Where the Council wishes to award a Particularly Complex Contract and considers that the use of the Open Procedure or Restricted Procedure would not be appropriate for that Contract, the Council may use the Competitive Dialogue Procedure.

19.3 The Council shall publicise its intention to seek offers in relation to the Contract by

publishing as soon as possible a Contract Notice in the OJEU inviting Suppliers to send a request to participate. The Council shall state within the Contract Notice the deadline by which requests to be selected to participate must be received.

19.4 The Council shall specify its needs and requirements in the Contract Notice and shall

indicate that it may provide for the Competitive Dialogue Procedure to take place in successive stages.

19.5 The last date for receipt by the Council of requests to be selected to participate shall

be not less than 37 days from the date of dispatch of the Contract Notice unless the Contract Notice has been published by electronic means in which case it may be not less than 30 days from the date of dispatch of the Contract Notice. The Council will write simultaneously to each Supplier.

19.6 The Contract shall be awarded on the sole basis of the most economically

advantageous tender. The Council shall open a dialogue with the Suppliers, selected against objective criteria, to identify and define the means best suited to satisfy the Council’s needs. The Council may discuss all aspects of the Contract with the selected Suppliers during this dialogue. During the dialogue the Council shall ensure equality of treatment amongst all the Suppliers and, in particular, it shall not provide information in a discriminatory manner which may give any Supplier an advantage over the other Suppliers. The Council may not reveal to the other Suppliers solutions proposed by or other confidential information given by a Supplier participating in the dialogue without the Supplier’s agreement. The full rules relating to the Competitive Dialogue Procedure are set out in the Regulations and Directive.

20. Dynamic Purchasing Systems

(Article 33, Regulation 20 refers) 20.1 When using a Dynamic Purchasing System, the Council shall comply with the

Regulations and Directive which set out the full details of the legal requirements. In order to set up a Dynamic Purchasing System, the Council shall follow the Regulations for the Open Procedure in all its phases up to the award of the Contracts to be concluded under this system. The Council shall publish a Contract Notice in the OJEU making it clear that a Dynamic Purchasing System is to be established and shall produce a specification indicating the nature of the goods, works or services to be purchased and shall offer by electronic means unrestricted, direct and full access to this specification and to any additional documents in accordance with the Contract Notice.

20.2 Once admitted to the Dynamic Purchasing System, the Council shall give all Suppliers

who satisfy the selection criteria an opportunity to submit tenders for each specific Contract to be awarded under the system and shall set a time limit for the submission of tenders.

20.3 A Dynamic Purchasing System established by the Council shall not operate for more

than 4 years, except in duly justified, exceptional circumstances.

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21. Pre-qualification (Articles 44-51, Regulations 23-26 refer) (see Rule 22 on Accredited Suppliers)

21.1 Before entering into a Contract with a Supplier, the Council shall need to satisfy itself

as to the Supplier’s: (a) eligibility; (b) economic and financial standing; (c) technical and professional ability; (d) quality assurance standards; (e) environmental management standards; (f) health and safety record; (g) equality and diversity policies; and (h) other appropriate criteria.

21.2 The Authorised Officer shall decide on the weighting of the above criteria in relation to the value and/or corporate significance of the Contract.

21.3 With regard to the criterion of eligibility in Rule 21.1, the Council shall satisfy itself that

the Supplier is appointed in accordance with the Regulations. A corporate Pre-Qualification Questionnaire is available on the Council’s intranet site.

22. Lists of Accredited Suppliers 22.1 Lists of accredited Suppliers may be used as an aid to select the Supplier, provided

that the selection is not discriminatory. Such lists may be used where recurrent transactions of a similar type are likely but where such transactions need to be priced individually and cannot be easily aggregated and priced in a single tendering exercise. Lists of accredited Suppliers should not be used where the Regulations apply.

22.2 In all Contracts the Authorised Officer must consider whether to advertise the Contract

in addition to referring to the list of accredited Suppliers in whichever ways are appropriate. Suppliers who respond to advertisements and who meet the minimum technical and financial requirements must be considered equally with those on the lists of accredited Suppliers.

22.3 The Council may maintain lists of accredited Suppliers that meet its requirements in

relation to the pre-qualification criteria set out in Rule 21. These lists will be prepared following public advertisement in the local/national/European press and specialist publications, as appropriate. Such advertisement shall be undertaken at least every three years to seek expressions of interest from Suppliers who wish to be included on the lists of accredited Suppliers but such lists shall be reviewed at least annually by the Corporate Director. On re-advertisement, a copy of the advertisement must be sent to each person on the list, inviting them to reapply. Once prepared, the lists of accredited Suppliers will include details of Suppliers by category of goods, services, consultancy or works being offered and the maximum value of Contract for which they have been approved.

22.4 Suppliers may be added, suspended or removed from the lists of accredited Suppliers

by an Authorised Officer, whether or not an advertisement has recently been issued. The reasons for a Supplier’s proposed removal or suspension must be reported in advance to the Corporate Leadership Team.

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22.5 All lists of accredited Suppliers should be maintained in an open, fair and transparent manner and be open to public inspection.

23. Invitation to Tender or Invitation to Negotiate 23.1 The ITT or ITN shall include details of the Council’s requirements for the particular

Contract including, but not limited to:

(a) a description of the services, supplies or execution of works being procured in sufficient detail to enable the submission of competitive offers;

(b) the procurement timetable including the tender return date and time (the Authorised Officer shall allow a reasonable period for the Suppliers to prepare their tenders);

(c) a specification and instructions on whether any variant bids are permissible; (d) the terms and conditions of Contract that the Council will expect the Supplier to

enter into; (e) the evaluation criteria, and any sub-criteria to be used, in descending order of

importance including any weightings as considered appropriate. It must be noted that once published this cannot change. If it needs to be changed the procurement process may need to re-start and advice should be sought from the Head of Procurement and Commissioning;

(f) the pricing mechanism and instructions for completion; (g) whether TUPE may apply and that the tenderer should seek legal advice in

relation to TUPE; (h) if appropriate the form and content of method statements to be provided by the

tenderer; (i) the rules for the submission of the tenders and whether tenders may be

submitted electronically; (j) if applicable, reference to the PIN and Contract Notice published in the OJEU; (k) the language(s) in which tenders and supporting documentation must be

submitted; (l) information as to where tenderers may find the legislation relevant to the

tendering process; (m) any further information which will inform or assist tenderers in preparing their

tender; (n) a requirement for tenderers to provide a warranty that they have the authority to

submit a tender; (o) a requirement for tenderers to declare that the tender content, price or any other

figure or particulars concerning the tender have not been disclosed by the tenderer to any other party (except where such a disclosure is made in confidence for a necessary purpose);

(p) a requirement for tenderers to complete fully and sign all tender documents including a Form of Tender and certificates relating to canvassing and non-collusion;

(q) a requirement for tenderers not to give any person any gift or consideration of any kind as an inducement in relation to obtaining the Contract;

(r) notification that tenders are submitted to the Council on the basis that they are compiled at the tenderer’s expense and that the Council does not bind itself to accepting the lowest tender or any tender submitted;

(s) the method by which any arithmetical errors discovered in the submitted tenders is to be dealt with. In particular, whether the overall price prevails over the rates in the tender or vice versa;

(t) notification that the formal Contract will include the conditions of Contract;

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(u) details of sub-contractors, if they are permitted; and (v) a requirement that “no tender will be received or accepted except in a format

prescribed by the Council”.

23.2 Where there is a requirement to specify the number of suitable Suppliers in the ITT, and there are less Suppliers than the number specified then all those considered suitable must be invited to tender. Reasons for regarding Suppliers as unsuitable should be recorded in writing and forwarded to the Strategic Procurement Manager.

23.3 The Authorised Officer may consult potential Suppliers prior to the issue of the ITT in

general terms about the nature, level and standard of the supply, contract packaging and other related matters provided this does not prejudice any other potential Supplier. The Authorised Officer must not seek or accept technical advice on the preparation of an ITT or Quotation from anyone who may have a commercial interest in them, if this may prejudice the equal treatment of all potential Suppliers or distort competition. A corporate Invitation to Tender document is available on the Council’s intranet site. Further advice can always be sought from the Strategic Procurement Manager and the Head of Legal, Democratic and Procurement. Services.

23.4 All Suppliers must be treated fairly. All potential Suppliers invited to tender must be

issued with the same information at the same time and subject to the same conditions. Any supplementary information must be given on the same basis.

23.5 The Authorised Officer must ensure that all potential suppliers are given an adequate

period in which to prepare and submit an ITT, consistent with the value and complexity of the Contract. Normally a minimum of 10 working days should be allowed for Intermediate Value Procurements and a minimum of 15 working days should be allowed for High Value Procurements. Specific timescales apply to Contracts subject to the Regulations, details of which are given in Rules 16 to 19.

24. Electronic Tendering


24.1 Unless otherwise stipulated by the Council RFQs, PQQs and ITTs must be transmitted by electronic means through the Council’s E-Tendering system provided that:

(a) the Supplier making the submission shall be responsible for ensuring that evidence that the transmission was successfully completed is obtained and recorded;

(b) each tender, RFQ or PQQ submitted electronically is supplemented by an identical, signed hard copy original submitted by the Supplier in the manner prescribed in the advertisement or the ITT, RFQ or PQQ, before the specified return date and time;

24.2 Where the Council determines that E-Tendering is not appropriate for a particular

procurement, RFQs, PQQs and ITTs may be exempted from using the Council’s E-Tendering system but only following prior written approval by the Strategic Procurement Manager.

25. Submission, Receipt and Opening of Tenders 25.1 Tenders shall be submitted in accordance with the requirements set out in the ITT. Any

tenders received shall be addressed to the Authorised Officer specified in the ITT in a

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sealed envelope endorsed with the word “Tender” followed by the subject matter to which it relates. Tenders shall be kept in a safe place by the Authorised Officer and remain unopened until the time and date specified for their opening. No tenders received after the specified date and time for the receipt of tenders shall be accepted or considered by the Council unless the Monitoring Officer or their deputy is satisfied that there are exceptional circumstances which justify its acceptance or consideration. Marking of the sealed envelope by the courier will not disqualify the tender.

25.2 Tenders shall be opened in the presence of at least one Officer who is independent of

the directorate which is tendering the contract. An immediate record using the designated forms (available on the intranet) shall be made of the tenders received including the name of the tenderer, the value of the tender (where this is immediately ascertainable) and the date and time of opening.

25.3 Where a Direct Services Organisation has been invited to tender, all tenders must be

submitted to the Head of Legal, Democratic and Procurement.Services 25.4 The relevant Portfolio-holder shall be invited to the opening of all tenders for High Value

Procurements and Contracts which are subject to the Regulations. 26. Tender Evaluation 26.1 All tenders shall be evaluated in accordance with the pre-determined evaluation

criteria, set out in the ITT and the Regulations where appropriate. The evaluation criteria shall be listed in descending order of importance. In addition, the criteria shall be strictly observed at all times throughout the Contract award procedure by any Officer involved in the tender evaluation.

26.2 The Authorised Officer shall compare submitted tender prices from the preferred

tenderer with any project appraisal or pre-tender estimates and any discrepancies from the project appraisal or pre-tender estimate for High Value Procurements or Contracts Subject to the Regulations of up to 10% shall be resolved to his satisfaction. Any discrepancies in excess of 10% shall be reported to the Corporate Director (who will consult with the Strategic Procurement Manager) for resolution. The Authorised Officer shall report any discrepancies in excess of 50% to the Corporate Leadership Team which shall determine the action to be taken. All actions and resolutions shall be recorded in writing.

26.3 The Authorised Officer must ensure that the award criteria do not include any non-

commercial considerations or matters which discriminate against Suppliers from the European Economic Area or signatories to the Government Procurement Agreement.

27. Abnormally Low Tenders


27.1 If a tender appears to be abnormally low, the Council may reject the tender but only if it has:

(a) requested in writing from the Supplier details of the constituent elements of the tender which the Council considers contribute to the tender being abnormally low;

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(b) taken account of the evidence supplied by the Supplier; and (c) verified those constituent elements with the Supplier.

27.2 Where the Council establishes that a tender is abnormally low because the Supplier

has obtained State Aid, the tender can be rejected on that ground alone only after consultation with the Supplier and only after the Supplier is unable to prove, within a reasonable time limit fixed by the Council, that the aid was granted legally. Where the Council rejects a tender in this circumstance, which is subject to the Regulations, it shall send a report justifying the rejection to the OGC for onward transmission to the European Commission.

28. Clarification Procedures and Post Tender Negotiation 28.1 Post Tender Negotiation for Contracts below the EU procurement thresholds shall not

be conducted where to do so might distort competition particularly with regard to price. In the event that Post Tender Negotiations are necessary following the submission of a tender, then such negotiations must only be undertaken with the tenderer who has previously submitted the most economically advantageous tender. Negotiations must be conducted by a team of at least two officers.

28.2 Where procurement is conducted in accordance with the Regulations through either

the Open or Restricted Procedure Post Tender Negotiations are not permitted. However, the Council may seek clarification from Suppliers, where appropriate in writing or by way of a meeting, to facilitate the assessment of their tender but should ensure that such clarification cannot be construed in any way as Post Tender Negotiation. Likewise Suppliers may seek such clarification from the Council.

28.3 Where Post Tender Negotiations result in a fundamental change to the specification

(or Contract terms) the Contract shall not be awarded but shall be re-tendered. 28.4 Where the Council makes the decision not to award a Contract it must notify any

Suppliers that have submitted tenders and the OJEU, if applicable. 28.5 The Authorised Officer must ensure that minutes are made of any negotiation

meetings and that both parties agree actions in writing. 29. Bonds, Guarantees and Insurance 29.1 For High Value Procurements and Contracts Subject to the Regulations, the

Authorised Officer shall consider, as part of the pre-qualification assessment and evaluation process, whether a performance bond and/or a parent company guarantee (if applicable) shall be required from the preferred Supplier.

29.2 The Authorised Officer shall seek advice from the Risk Management and Insurance

Section of the Council with regard to the appropriate type of insurance (employee liability, public liability, professional indemnity, etc.) and level of insurance required for each Contract.

30. Awarding Contracts (Regulation 32 refers)

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30.1 Subject to the approval under the Council’s Procurement Assurance Scheme, Financial Regulations and in accordance with the stated evaluation criteria, quotes, tenders or Framework Agreements for:

(a) Up to £250,000 may be accepted by the Authorised Officer;

(b) £250,000 to £1 million may be accepted by the Corporate Director or Head of Service;

(c) above £1 million may be accepted by the Corporate Director following consultation with the relevant Portfolio Holder; and

(d) where the Corporate Director considers the award of a Contract carries a high risk or sensitivity or represents a Key Decision the Corporate Director, or the Corporate Leadership Team, shall determine whether the matter should be referred to the Executive.

30.2 For each contract, framework agreement or dynamic purchasing system subject to the

regulations there is a legal requirement to have a mandatory standstill period of at least 15 calendar days between despatching the notice of the conditional intention to award the contract to the preferred tenderer and the date on which the council actually enters into the contract. However if the notice of conditional intention to award is dispatched exclusively by facsimile or electronic means the standstill period can be reduced to 10 calendar days. This period is to allow unsuccessful tenderers to make representations if they feel that the tender process was flawed in some way. The end of the standstill period must not fall on a non-working day (Saturday or Sunday), if it does the standstill period must be extended to midnight of the next working day.

30.3 For tenders subject to the Regulations a letter must be sent to the unsuccessful tenderer(s) informing them of the intent to award, following the mandatory standstill period, at the same time as to the successful tenderer. This letter must include:

(a) The criteria for award of the contract

(b) The full reasons for the decision, including the characteristics and relative advantages of the successful tenderer

(c) The score (if any) obtained by the economic operator to whom the letter is addressed

(d) The score (if any) of the economic operator to be awarded the contract or to become a party to the framework

(e) The name of the economic operator to be awarded the contract or to become a party to the framework

(f) Any reasons why the economic operator to whom the letter is addressed did not meet technical specification requirements (where relevant)

(g) A precise statement of either when the standstill period is expected to end and, if relevant, how the timing of its ending might be affected by any and if so what contingencies; or

the date before which the Council will not enter into the contract or conclude the framework agreement.

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For all candidates unsuccessful at the PQQ stage a letter must be sent informing the candidates of:

(a) the reasons why the candidate was unsuccessful; and

(b) all the same information that would be sent to tenderers, as referred to above, except for the “relative advantages of the successful tenderer”

For all tenders not subject to the Regulations a letter must be sent to the unsuccessful tenderer(s) informing them who is the preferred tenderer at the same time as to the preferred tenderer.

31. Debriefing (Article 41, Regulation 32 refers)

31.1 The Regulations provide that contracting authorities are required to release the full reasons for the award decision as soon as possible after the decision to award has been made for all contracts subject to the Regulations. However, in addition to this and with regard to best practice, for all procurements the Authorised Officer responsible shall provide a debriefing to unsuccessful tenderer(s) upon receiving a written request.

31.2 Debriefing, against the pre-determined evaluation criteria shall include the

characteristics and relative advantages of the successful tender as well as the name of the Supplier(s) to be awarded the Contract or to be admitted to the Dynamic Purchasing System (subject to certain exceptions e.g. commercial confidentiality).

32. Contract Award Notice

(Article 35(4), Regulation 31 refers)

Where a Contract has been tendered pursuant to the Regulations, the Council shall publish a Contract Award Notice in the OJEU as soon as possible and no later than 48 days (2 months in the case of the Utilities Contracts Regulations 2006) after the date of award of the Contract or when the Framework Agreement has been concluded. Where the Council has awarded a Part B services Contract the Council shall state in the Contract Award Notice whether or not it agrees to its publication.

33. Letters of Intent 33.1 Letters of Intent are used for building Contracts where it is essential that works start by

a certain date but the contractual arrangements have not been finalised. Letters of Intent are rarely required for services or supplies Contracts.

33.2 Letters of Intent shall only be used in exceptional circumstances. An Authorised Officer

who considers using a Letter of Intent must refer it to Legal Services for advice.

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34. Contract Terms and Conditions (Article 23, Regulation 9 refers) 34.1 Contracts shall normally be entered into on the Council’s terms and conditions, which

shall be included with each purchase order, RFQ, ITT or ITN. For any general or specific exceptions to this Rule advice must be sought from Legal Services.

34.2 Where Contracts are subject to the Regulations, the rules relating to technical

specifications in the Regulations shall be followed and any reference to a technical standard, make or type shall be followed with the words “or equivalent”. This requirement applies to both Part A and Part B services Contracts.

35. Contract Extension / Variation 35.1 A Contract shall not be extended beyond the term of the Contract or varied to include

additional goods, services or works unless the Contract documents specifically allow for this and provided that the term of any Framework Agreement shall not exceed four years except in exceptional circumstances. Advice on this issue shall be sought from Legal Services and the Strategic Procurement Manager.

35.2 The Authorised Officer and Strategic Procurement Manager must be satisfied that

such an extension would achieve best value for money and be reasonable in all the relevant circumstances. The Authorised Officer must record in writing their reasons for reaching these conclusions.

35.3 Where the Contract is subject to the Regulations and the Contract Notice and Contract

documentation did not state that the Contract may be extended, advice shall be sought from Legal Services as to whether the Contract may be extended.

35.4 Extensions shall be notified by the Corporate Director to the Corporate Leadership

Team. 35.5 Once a Contract has expired it cannot then be extended. 35.6 All Contract variations must be carried out within the scope of the original Contract.

The Authorised Officer should seek advice from the Head of Legal, Democratic and Procurement Services where a Contract variation would materially effect or change the scope of the original Contract.

35.7 All Contract variations must be in writing and approved by Legal Services and signed

by both the Council and the Supplier, except where different provisions are made within the Contract documentation. The value of each variation must be assessed by the Authorised Officer and all necessary approvals sought prior to the variation taking place, including registrations on the Council’s Forward Plan if applicable.

36. Early Termination of Contract

Contracts may only be terminated early in accordance with their terms and conditions and with the approval of the Strategic Procurement Manager Advice shall be sought from Legal Services where it is intended to terminate a Contract early.

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37. Execution of Contracts 37.1 Subject to Rule 37.2, an Authorised Officer who is employed by the directorate which

is awarding a Contract shall have the authority to sign that Contract on behalf of the Council.

37.2 All contracts which are of a value of £100,000 or above must be in writing and must be

either:

(a) made under the Council’s seal and be attested by the Monitoring Officer or an officer authorised by the Monitoring Officer to attest the Council’s seal; or

(b) signed by at least two Authorised Officers of the Council. 37.3 It is the responsibility of each Corporate Director to ensure that contracts are signed at

the appropriate level within their directorates. 37.4 Electronic signatures may be used in accordance with the Electronic Signature

Regulations 2002, Directive 1999/93/EC and Directive 2000/31/EC, provided the sufficiency of security arrangements has been approved by a Corporate Director.

38. Records of Tenders and Contracts

(Article 43 refers, Regulation 32 refers)

38.1 The Authorised Officer in respect of a particular procurement shall maintain a list of all tenders received.

38.2 Subject to Rule 22.3 it shall be the responsibility of each Corporate Director to keep a

record or otherwise monitor the award of and performance under all Contracts entered into by their directorate.

38.3 A Contracts Database shall be held by the Strategic Procurement Manager with

details of all Contracts or Framework Agreements entered into by the Council at a value of over £10,000. It will be the responsibility of the Authorised Officer to ensure that details of a relevant Contract or Framework Agreement are provided to the Strategic Procurement Manager for entering onto the Contracts Database. The Strategic Procurement Manager will be responsible for entering information relating to corporate Contracts or Framework Agreements.

38.4 A unique Contract Database reference number shall be quoted on all appropriate post-

Contract correspondence. 38.5 A Contract File shall be maintained for High Value Procurements, Contracts Subject to

the Regulations and all Framework Agreements, which shall provide detailed and updated information throughout the procurement process including a record of all key decisions made and meetings held during that process.

38.6 For each individual Contract, Framework Agreement or establishment of a Dynamic

Purchasing System subject to the Regulations the relevant Authorised Officer shall prepare a written report, which is to be kept on the Contract File, detailing the following:

(a) the subject matter and value of the Contract, Framework Agreement or Dynamic

Purchasing System;

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(b) the names of the successful candidate(s) or tenderer(s) and the reasons for their selection;

(c) the names of the candidate(s) or tenderer(s) rejected and the reasons for their rejection;

(d) the reasons for the rejection of tenders found to be abnormally low; (e) if known, the share of the Contract or Framework Agreement which the

successful tenderer intends to sub-contract to third parties; (f) Risk Register (if one exists); (g) Business Case (if one exists); and (h) Procurement Assurance Scheme documentation.

38.7 All Contracts made under the Council’s seal and attested by the Monitoring Officer must be kept for twelve years after the Contract completion date. All Contracts not made under the Council’s seal must be kept for six years after the Contract completion date. All documentation relating to a successful tender or quotation should be retained for a similar period. All unsuccessful tenders and quotations should be retained for four years from the award of the contract and then destroyed, provided there is no dispute about the award.

39. Nominated and Named Sub-Contractors

Advice on Nominated and Named Sub-Contractors should be sought in the first instance from Legal Services.

40. Partnering Arrangements 40.1 Where it is determined that a Partnering Arrangement is appropriate then the Contract

Procedure Rules shall be complied with as if the value of the Partnering Arrangement is equal to or exceeds the financial thresholds stated in the relevant Directive.

40.2 Every Partnering Arrangement shall specify the methods for achieving:

(a) mutual objectives; (b) problem resolution; (c) monitoring and measurement of Contract performance and continuous

improvements; (d) benchmarking to satisfy Best Value; and (e) innovation, sharing risk and reward;

together with the terms and conditions of the Partnering Arrangement that will apply and the criteria upon which the Partnering Arrangement shall be evaluated.

40.3 The Partnering Arrangement(s) will provide a Framework Agreement within which

specific Contracts for the supply of goods, services or works may be formally developed between the Council and the Preferred Partner(s).

41. Framework Agreements


41.1 Framework Agreements are used where the Council wishes to Contract for supplies, services or works without conducting a new procurement exercise for each individual call off order. However, the Framework Agreement may include within its terms a

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requirement for a competitive exercise between those Suppliers who are parties to the Framework Agreement. Any Framework Agreement shall be tendered in accordance with these Contract Procedure Rules and, where appropriate, the Regulations. Framework agreements usually last for a maximum of four years.

41.2 Where the Council has entered into a Framework Agreement through procurement or is able to call off from an existing Framework Agreement procured by central government agencies, purchasing consortia or other local authorities or public bodies, then the Council, may benefit from using those Contracts without entering into a separate procurement process provided that either the Council is specifically named in the Framework Agreement or the terms of the Framework Agreement permit the Council to do so. Where such Framework Agreements contain a number of different Suppliers able to provide a particular category of goods or services, a mini competition exercise between those Suppliers who are parties to the Framework Agreement must be carried out. Further guidance is available from the Strategic Procurement Manager.

41.3 The Council can enter into a Framework Agreement with one Supplier, or, where the Council enters into a Framework Agreement with more than one Supplier, a minimum of three Suppliers must be used, provided that there are sufficient candidates satisfying the selection criteria and which have submitted compliant bids meeting the award criteria.

42. Central Purchasing Bodies (Regulation 22 refers) The Council may procure goods, services or works through a Central Purchasing Body. Where the Council undertakes procurement from such a body it shall be deemed to have complied with the Regulations to the extent that the Central Purchasing Body has complied with them.

43. Joint Procurement 43.1 Any joint procurement arrangements with other local authorities or public bodies

(including membership or use of Purchasing Consortia) shall be discussed and agreed with the Strategic Procurement Manager before being recommended to and approved by the Corporate Leadership Team prior to their commencement.

43.2 Approval shall only be given where the joint procurement arrangement, which may

include the use of a Central Purchasing Body, ensures compliance with these Contract Procedure Rules and the Regulations.

44. Procurement of Consultants 44.1 Subject to Rule 6, any consultants used by the Council shall be appointed in

accordance with these Contract Procedure Rules. Where the Council uses consultants to act on its behalf in relation to any procurement, the Authorised Officer shall ensure that the consultants carry out any procurement in accordance with these Contract Procedure Rules. No consultant shall make any decision on whether to award a Contract or to whom a Contract should be awarded. The Authorised Officer shall ensure that the consultant’s performance is monitored.

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44.2 Consultants shall be required to provide evidence of, and maintain professional indemnity insurance policies to the satisfaction of the relevant Corporate Director and the Risk Management and Insurance Section for the period specified in the respective agreement.

44.3 Where the Council uses consultants to act on its behalf in relation to any procurement,

the consultant must declare any conflict of interest that may arise to the Authorised Officer prior to completing any Tender evaluations on behalf of the Council. Where the Authorised Officer considers that such a conflict of interest is significant the consultant shall not be allowed to evaluate Tenders on behalf of the Council.

45. Statistical Returns

(Article 76, Regulation 40 refers) 45.1 Not later than 31 July in each year, the Council shall send a report to the Department

of Communities and Local Government concerning the Contracts and Framework Agreements awarded during the preceding year under the Regulations for onward transmission to the European Commission.

45.2 The Strategic Procurement Manager shall be responsible for this report and shall

make the necessary arrangements for information to be collected annually. Corporate Directors shall comply with these arrangements.

46. Annual Report to the Executive The Strategic Procurement Manager shall submit an annual report to the appropriate

Scrutiny Committee and the Executive, in such a format and containing such information as Members may require, which summarises the Council’s contractual activity over the previous 12 months.

47. Review and Amendment of Contract Procedure Rules These Contract Procedure Rules shall be reviewed on at least an annual basis and

updated where appropriate. Amended Contract Procedure Rules shall be agreed and adopted by the full Council.

48. Financial Thresholds The Strategic Procurement Manager may alter the financial thresholds in these

Contract Procedure Rules from time to time to reflect changes in national price indices or thresholds under European Union Public Procurement Rules. Any such change will be reported for information to the Corporate Directors, Heads of Service and Authorised Officers.

49. Guidance 49.1 Advice on ‘best practice’ is set out on the Council’s intranet site and within the Code of

Practice which accompanies these Contract Procedure Rules and should be read alongside them. If there is any discrepancy between the Code of Practice and the Rules, the Rules shall take precedence. Guidance can always be sought from the

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Strategic Procurement Manager and the Head of Legal, Democratic and Procurement Services..

49.2 If any Officer has difficulty in interpreting the Rules or applying them to a specific

Contract, they should seek legal, financial or procurement advice as appropriate.

50. Procurement Assurance Scheme (PAS) and Risk Assessment

50.1 The Council operates a Procurement Assurance Scheme to support open and transparent procurement which is scalable and based on both value and risk. All High Value Procurements by the Council are subject to the schemes light regime and Contracts subject to the Regulations are subject to the full regime. Any Corporate Director or Executive Cabinet Member can request that a High Value Procurement is subject to the full regime.

50.2 A corporate Strategic Risk Assessment template must be completed for all programmes and projects with an estimated value over £50,000. The Authorised Officer must also ensure that appropriate risk assessments are undertaken and ensure that contingency measures are in place for the identified risks.

50.3 The calculation of the estimated value of the programme or project shall be based on the total amount payable (net of VAT) taking into account any form of option and any potential extensions to the term of the Contract or Framework Agreement.

50.4 A business case must be prepared for all High Value Procurements and Contracts subject to the Regulations. Provision of resources for the management of the contract, for its entirety, must be identified in the business case.

51. Contract Management and Review

51.1 The Authorised Officer should ensure that all Contracts which are subject to the Regulations, have regular reviews with the appointed Supplier(s), the frequency will be dependent on the risk and value of the contract. The review may be held quarterly with the written agreement of the Corporate Director.

51.2 The Authorised Officer should monitor performance of the appointed Supplier, compliance with the specification and terms and conditions of the contract, cost, any value for money requirements, user satisfaction and risk management and submit an annual report to the Corporate Director and the Strategic Procurement Manager on the performance of the Contract which is subject to the Regulations.

52. Concession Contracts

52.1 A concession Contract is used where the Council wishes to engage a party to provide a service within a Council area, consideration for which is in the form of the party (“the concessionaire”) being given the right to charge the public for the services being provided.

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52.2 The Regulations do not apply to public works concessions for which the estimated value is under the OJEU threshold and there are a number of exemptions where a public works concession contract is proposed.

52.3 Where the concessionaire intends to sub-contract the performance of services, the concessionaire may in certain circumstances fall within the scope of the Regulations. In all cases, where the concessionaire is procuring goods and/or services as part of the concession contract, any procurement should be carried out in accordance with these Contract Procedure Rules.

53. Contract Claims - Specific Requirements for Construction Contracts

53.1 To safeguard the Council’s right to deduct liquidated damages, if the Contract is over running, the Authorised Officer must certify in writing that the Supplier ought reasonably to have completed the works within the Contract period. Such a certification must be in accordance with the Contract conditions and be issued prior to the issue of the final certificate of payment.

53.2 Any events that may lead to claims for an extension of time must be immediately brought to the attention of the Authorised Officer. Claims for extension of time must be assessed promptly and any extension award made in accordance with the conditions of Contract.

53.3 If the works are not complete the Authorised Officer must issue a certificate of non-completion in accordance with the relevant Contract conditions immediately after the expiry of the extended date for completion. It is the ultimate responsibility of the Authorised Officer to arrange for the deduction of liquidated damages.

53.4 The above procedures must be strictly followed for each section of a Contract in the case of sectional completions.

53.5 The Head of Legal, Democratic and Procurement shall be kept informed at all times of all contractual claims whether by or against the Council.

53.6 It is critical that documentary evidence is kept relating to all aspects and stages of a claim and these should be kept by the Authorised Officer in the Contract File.

54. Complaints and Disputes

Any complaint raised during a Tender process and any potential or actual contractual dispute, with an existing Contract, should be immediately notified to the Strategic Procurement Manager and the Head of Legal, Democratic and Procurement. Services.


APPENDIX 1

SCHEDULE 1

CATEGORIES OF SERVICES

PART A

Category Services

1. Maintenance and repair of vehicles and equipment.

2. Transport by land, including armoured car services and courier services but not including transport of mail and transport by rail.

3. Transport by air but not transport of mail.

4. Transport of mail by land, other than by rail, and by air.

5. Telecommunications services

6. Financial services (a) Insurance services (b) Banking and investment services other than financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services.

7. Computer and related services.

8. Research and development services where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs and the services are to be wholly paid for by the contracting authority.

9. Accounting, auditing and book-keeping services.

10. Market research and public opinion polling services.

11. Management consultancy services and related services, but not arbitration and conciliation services.

12. Architectural services: engineering services and integrated engineering services: urban planning and landscape architectural services: related scientific and technical consulting services: technical testing and analysis services.

13. Advertising services.

14. Building-cleaning services and property management services.

15. Publishing and printing services on a fee or contract basis.

16. Sewerage and refuse disposal service: sanitation and similar services.

PART B

Category Services

17. Hotel and restaurant services.

18. Transport by rail.

19. Transport by water.

20. Supporting and auxiliary transport services.

21. Legal services.

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22. Personnel placement and supply services.

23. Investigation and security services, other than armoured car services.

24. Education and vocational health services.

25. Health and social services.

26. Recreational, cultural and sporting services.

27. Other services.

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