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CRAWLEY BOROUGH COUNCIL

PROCUREMENT CODE

Table of Contents

   

1.

Introduction

2.

Roles and Responsibilities

3.

Determining the Contract Value

4.

Determining the Procurement Route

  • Procurement Thresholds and Contract Award Procedures – Goods and Services contracts
  • Procurement Route – additional notes

5.

Use of Framework Agreements

6.

Exemptions to the Procurement Code

7.

Quotation Process

8.

Local and EU Tender Process

Project Start-Up

Advertising of Opportunities

Pre Qualification Questionnaire and Short-listing

PQQ Evaluation process

Invitation to Tender Pack

Evaluation Criteria

Tender Receipt and Opening

Tender Evaluation process

Clarification Procedures and Post-Tender negotiation

9.

Contract Award Procedures

Acceptance of tenders – approval route

Call-in procedure

Notification to Tenderers – above EU Threshold

Notification to Tenderers – below EU Threshold

Contract documents

Contract formalities – signature/sealing

10.

Record Keeping

11.

Bonds and Parent Company Guarantees

12.

Prevention of Corruption and Bribery

13.

Declaration of Interests

14.

Post Contract Monitoring and Evaluation

15.

Contract Extension

16.

Contract Termination

17.

Review and Amendments of the Procurement Code

18.

Works contracts thresholds and contract award procedures

19

Description of Part A and Part B services

20

Definitions and Further Information

CRAWLEY BOROUGH COUNCIL

PROCUREMENT CODE

1. INTRODUCTION

1.1. The purpose of the Procurement Code is to establish clear rules for the procurement of all the Council’s goods, works and services. The Procurement Code ensures a system of openness, integrity and accountability.

1.2. The Procurement Code is supported by the Procurement Toolkit which provides practical and more detailed advice about how to undertake a procurement exercise, including access to a suite of template documentation. It is also supported by the Procurement Strategy which outlines the future direction and deliverables of strategic procurement. The toolkit will be updated on a regular basis to address queries and issues that arise.

1.3. Any officer unfamiliar with undertaking a procurement exercise can seek advice from their line manager and the Procurement team. It is also a requirement of the Procurement Code that any officer undertaking a procurement exercise valuing £50,000 or above must inform the Procurement team and the relevant Head of Service.

1.4. Procurement decisions are important because the money involved is public money and the Council is concerned to ensure that high quality goods, works and services are provided. Efficient use of resources in order to achieve best value is therefore an imperative. The Council’s reputation is equally important and should be safeguarded from any accusation of dishonesty or corruption.

1.5. For these reasons it is potentially a disciplinary offence to fail to comply with the Procurement Code when letting contracts and employees have a duty to report breaches of the Procurement Code to an appropriate senior manager.

1.6. The Procurement Code applies to all procurement by the Council of works, goods and services. The Procurement Code applies to all Council employees and elected Members. The Director of Resources and Head of Finance, Revenues and Benefits shall maintain and issue the Procurement Code.

1.7. Every contract or official order for works, goods or services made by the Council shall be for the purpose of achieving the Council’s statutory or approved objectives and shall conform to all relevant English and European Union legislation.

1.8. Procurement is a complex area, if you require further information or advice, concerning this Procurement Code, you can contact any of the following officers:-

Dave Rawlings

Head of Finance, Revenues and Benefits

Ann-Maria Brown

Head of Legal and Democratic Services

Jo Newton-Smith

Procurement Manager

Kevin Carr

Principal Lawyer Contracts and Procurement

Roger Dennis

Joint Procurement Adviser

Gillian Edwards

Audit Manager

2. ROLES AND RESPONSIBILITIES

2.1. Heads of Service:

2.1.1. The Head of Service has responsibility for all contracts tendered and let by his/her Division. He/she is accountable to the Cabinet for the performance of his/her duties in relation to contract letting and management, which are:

    • To ensure compliance with English and EU legislation and Council policy
    • To ensure value for money in all procurement matters
    • To ensure compliance with the Procurement Code
    • To ensure that all relevant staff are familiar with the provisions of the Procurement Code and that they have access to appropriate training
    • To ensure compliance with any guidelines issued in respect of the Procurement Code
    • To take immediate action in the event of a breach of the Procurement Code within his or her area

2.2. All Officers must:

    • Ensure that there is an adequate approved budget to cover the full cost of the goods, services or works to be procured.
    • Ensure that where required member approval for specific projects is obtained prior to committing expenditure.
    • Ensure that agents, consultants and contractual partners acting on their behalf also comply with these requirements
    • Comply with the rules set out in the Procurement Code, the Councils Financial Regulations, the Employee Code of Conduct, and with all UK and EU legislation
    • Take all necessary legal, financial and professional advice.
    • Declare any personal financial interest in a contract as corruption is a criminal offence
    • Make appropriate arrangements for the opening of tenders and their secure retention so as to protect the integrity of the tendering process
    • Keep records and documentation of all procurement processes (see section 10 of the Procurement Code for details of how long records need to be kept)
    • Issue an order using the Council’s financial management system unless it is on the Council’s Purchase Order exemption list
    • Not enter into any leasing agreements or other forms of borrowing, including the set up of store or credit cards other than those arranged or approved by the Head of Finance, Revenues and Benefits
    • Keep the relevant Head of Service updated on all the relevant stages of the procurement process
    • Refer to the Procurement Strategy and Toolkit.

2.3. Head of Finance, Revenues and Benefits

2.3.1. The Head of Finance, Revenues and Benefits will ensure that:

    • The Procurement Code and Procurement Toolkit are kept up to date and easily accessible
    • Training is available to officers or Members
    • A Council-wide contracts register is kept and maintained

3. DETERMINING THE CONTRACT VALUE

3.1. Prior to commencing a procurement process it is the responsibility of the lead officer to estimate the total value of the contract or project this will indicate which procurement procedure must be followed in order to comply with the Procurement Code. The estimated value means the aggregated value payable in Pounds Sterling exclusive of Value Added Tax.

3.2. The total value includes not only the purchase price but all the associated costs over the entire contract period. These could include installation, training, maintenance and disposal costs.

3.3. If the expenditure on an item, service or with a particular supplier is recurring then the officer must determine the likely spend over a 12 month period and multiply this by the length of the contract. Where the contract is for an uncertain duration, in order to determine the total value you must calculate the value over 48 months.

3.4. Officers cannot shorten the length of a contract to less than 4 years, or split a requirement into separate or smaller packages, in order to avoid an EU or local tender threshold.

4. DETERMINING THE PROCUREMENT ROUTE

4.1. All tender processes (any contract above £50,000 for goods and services, and £100,000 for works contracts) must be notified to the relevant Head of Service and the Procurement team by the completion of the Procurement Start-up Form.

4.2 The majority of the Councils procurement falls within the Goods and Services contract thresholds. The table below (4.5) identifies the procurement route required depending on the value of the contract. Works contracts are generally for construction related projects and therefore only used by a few divisions within the Council, the Works thresholds can be found in section 18.

4.3. In all instances, if there is a corporate contract in place for the goods, works or services required then the corporate contract must be used and no further quotations or tenders are required. Details of corporate contracts are available on the procurement pages of the intranet.

4.4. The use of Framework Agreements is permitted for any value of procurement, please see section 5 for further information on what a framework is and how to access them.

4.5 Procurement Thresholds and Contract Award Procedure - Goods and Services Contracts

Total Value

Procurement Route

Short-listing of potential suppliers

Receipt of Tenders

Contract Approval and Award

Method of Contract Completion

£500 - £10,000

Two quotations confirmed in writing.

Officer

Quotations returned to Department

Officer in consultation with the appropriate budget holder.

Signature and/or purchase order raised

£10,000 - £50,000

Three written quotations to be opened and reviewed by at least two officers.

Officer and Line Manager

Quotations returned to Department

Officer and Line Manager (as delegated by Head of Service).

Signature

£50,000 – EU Threshold (see intranet for current EU Thresholds)

Invitation to tender, to at least four Tenderers by advertisement on the Council’s website, the West Sussex Opportunities Portal. Other media can also be used

Tenders to be evaluated by a minimum of two officers.

Approval of shortlist by Officer, and Head of Service

Tenders to be returned to Legal and Democratic Services and opened in the presence of two Council representatives (members and/or officers)

Head of Service/Director approval.

Up to £100,000 Signature

Over £100,000 Sealing

Above EU Threshold

EU Procedure, or where this does not apply, invitation to tender to at least five Tenderers by advertisement on the Council’s website, the West Sussex Opportunities Portal and by advertisement in the Official European Journal. Other media may also be used. Tenders to at least five Tenderers

Tenders to be evaluated by a minimum of three officers. Approval of shortlist by Officer, Head of Service Head of Finance and Head of Legal and Democratic Services

Tenders to be returned to Legal and Democratic Services and opened in the presence of two Council representatives (members and/or officers)

Below £200k Head of Service/Director approval.

£200k to £400k – approval by Head of Service / Director in consultation with Portfolio Holder (subject to call-in procedure).

Sealing

Above £400k – approval by Cabinet

Sealing

4.6. Procurement Route – Additional Notes

4.6.1. All partnership arrangements are subject to all UK and EU procurement legislation and must follow this Procurement Code. If in doubt officers must seek the formal advice of the Head of Finance, Revenues and Benefits.

4.6.2. Tenders or quotations will not be invited or considered from individual Council employees, business partnerships in which a Council employee is a partner, companies in which a Council employee is a paid director or any business where a Council employee has an interest which exceeds a nominal value of £25,000 or one hundredth of the total issued share capital.

4.6.3. The selection and engagement of consultant architects, engineers and surveyors or other professional consultants shall be subject to this Procurement Code. Consultants shall be required to provide evidence of and maintain professional indemnity policies to the satisfaction of the relevant Head of Service for the periods specified in the respective agreement.

4.6.4 The disposal of land or employee contracts are not covered by the Procurement Code.

4.6.5. The Council does not allow the use of Approved or Preferred Supplier Lists in any of its procurement procedures. Any officer wishing to develop an Approved List can only do so where it is justifiable and formally approved by the Head of Finance, Revenues and Benefits. The Approved List must be compiled by means of a sufficiently advertised, transparent and open procedure. Details of the list must be stated on the Councils website along with details of how to be included on the list.

5. USE OF FRAMEWORK AGREEMENTS

5.1. A Framework Agreement is a contract that has been officially tendered for by another local authority, public sector organisation, Purchasing Consortium, or central Government. The contract is awarded to one or more suppliers, and has provision for other named public sector bodies to use the contract without having to undertake their own tender process. Acquiring goods, works or services under a Framework Agreement can be a very efficient method of procuring the Councils requirements

5.2 Framework Agreements may be used at any of the threshold levels as an alternative to the procurement routes identified in Tables 4.5 and 18.

5.3. However, caution must be taken as the rules for accessing a Framework Agreement can vary from one agreement to another. Officers should seek guidance from the Procurement team in order that they can;

    • establish if the Council can legally access the Framework Agreement;
    • determine whether the Council must enter into an agreement with the Contracting Authority which created the Framework Agreement prior to using it;
    • establish the rules of the Framework Agreement governing the selection and invitation of organisations listed on the framework. Where no guidance is provided all organisations listed on the Framework Agreement should be invited to tender;
    • establish the evaluation criteria that must be used on the framework agreement to determine the successful Tenderer
    • comply with any minimum requirements outlined in the Framework Agreement regarding the provision of information to the bidders
    • comply with any minimum timescales for bidders to respond to the Council’s Invitation to Tender;
    • ensure that where the value of the requirement is above £50,000 for goods and services or £100,000 for works, tenders are returned to Legal and Democratic Services in accordance with Section 8.7
    • ensure that the provisions for the Contract Award procedure detailed in the Framework Agreement are followed. In addition, the Council’s procedure detailed in Section 9 on Contract Award must be followed.

6. EXEMPTIONS

6.1. There is provision within the Procurement Code for the requirements of obtaining quotations or tenders to be waived under the following conditions:

    • No exemption can be used if the EU Procedure applies
    • No exemptions can be made retrospectively
    • If an exemption is agreed it will still be necessary to complete the contract administration procedures such as contract formation and checking of insurances.

6.2. An exemption can only be applied for when one or more of the following criteria specifically apply to the proposed contract and this is evidenced comprehensively on the Procurement Code exemption form which can be found on the procurement pages of the intranet.

    • A contract is required as a matter of genuine urgency (e.g. flood alleviation/damage)
    • There are reasons why there would not be a genuine competition and no reasonable alternative is available
    • The specification for goods and services is of a specialised nature which only a limited number of suppliers can meet and tenders will be invited from all suitable suppliers

6.3. All exemptions and the reasons for them must be recorded using the Exemption Form on the intranet. The officer seeking the exemption must provide clear and sufficient evidence why the contract matches one or more of the criteria set out above. Approval must be sought from the relevant Director and the Head of Finance, Revenues and Benefits, and Head of Legal and Democratic Services.

6.4. Once approved by the Head of Legal and Democratic Services, a copy will be provided for the Corporate Management Team and the relevant Cabinet Member for information.

7. QUOTATION PROCESS

7.1. Where the estimated value or amount of a proposed contract does not exceed £10,000 and provision has been made in the Council’s annual budget for such expenditure, the officer concerned shall have the authority to enter into any such contract provided the budget holder is satisfied that the Council is receiving value for money. For any expenditure between £500 and £10,000 two quotations confirmed in writing must be received in order to evidence value for money. A purchase order must be raised for all purchases via the Councils e-procurement system.

7.2 Any contract valued between £10,000.00 and £49,999.99 for goods and services or between £10,000.00 and £99,999.99 for works should follow the formal quotation process (see bullet points 7.3 to 7.8). If there is any doubt whether the contract will be valued below the highest value prior to the commencement of the procurement process then a tender process should be followed regardless.

7.3. As a minimum three suppliers must be asked to provide a quotation. Suppliers can be selected by any means deemed suitable by the responsible officer. Where there are less than three suppliers that can provide the item or service then this must be evidenced by the responsible officer following the procurement exemption process as detailed in section 6.

7.4. All suppliers invited to submit a quotation must be issued with the same information at the same time and subject to the same conditions. Should any further information be issued this must be given to all suppliers on the same basis. A realistic timescale for response must also be given.

7.5. Quotations must be submitted in writing either via post, fax or email.

7.6. A request for quotation should, where appropriate, contain the following information (check the Procurement Toolkit for up to date list of requirements and access to all the standard documents):

    • Background information and Instruction to bidders – concise information about the Council, and details of the quotation procedure
    • Evaluation criteria that will be used
    • The specification – details the goods, services or works that are required
    • Council Terms and Conditions
    • Price Schedule – a form for the bidder to complete with their quotation pricing information
    • Method Statement – a series of questions asking the bidders to outline how the goods or service will be delivered (if appropriate to the contract)
    • A statement that the Council is not bound to accept any quotation and that all submissions are at the supplier’s own cost.
    • Requests for company information applicable to the contract – this could be requests for relevant insurance documents, Health and Safety policy and conformity, evidence of Membership of professional bodies, references etc.

7.7. After evaluating the quotations, the responsible officer must notify all the suppliers of the award decision in writing as soon as practicable. For unsuccessful suppliers you must provide feedback as to why they were unsuccessful.

7.8. All documentation must be kept for a minimum of 12 months. The successful bid should be kept for the duration of the contract period. (See section 10 for more information on record keeping).

8. LOCAL AND EU TENDER PROCESSES

8.1. Project Start-Up

8.1.1 Any contract valued at £50,000 or above for goods and services or £100,000 for works must follow a formal tendering process. If there is any doubt whether the contract will be valued above these thresholds prior to the commencement of the procurement process then a tender process should be followed regardless.

8.1.2. A local tender process can be undertaken for any contract below the EU Threshold. Any contract above the EU Threshold must follow full EU Procurement Directives and Legislation. Any contract above the EU Threshold but deemed a Part B service contract should follow the local tender process detailed below; however, the EU contract award process MUST be followed. Section 19 gives a high level overview of the Part A and Part B classifications.

8.1.3. Determining the Procurement route can be extremely complex, therefore prior to the commencement of any procurement tender process the responsible officer must first complete a Procurement Start-up Form which must be agreed by the relevant Head of Service and be submitted to the Procurement team. This will help determine the most appropriate route to follow.

8.1.4. All tender exercises are paper based unless agreed by the Procurement Team and Legal and Democratic Services that an electronic tendering process will be undertaken using the Council’s approved e-tendering package.

8.1.5. The responsible officer, in conjunction with the Procurement Team, must determine the type of procurement exercise to be undertaken. The two most common routes are ‘open’ and ‘restricted’.

8.1.6. An ‘open’ tender exercise is where the Council advertises the opportunity and all interested parties complete and return the full tender documentation. This type of process tends to be used when there are few suppliers in the market that can provide the goods or services required.

8.1.7. A ‘restricted’ tender exercise is where the Council advertises the opportunity and all interested parties complete a Pre Qualification Questionnaire (PQQ). A PQQ is used when it is known there are numerous suppliers in the market and a two stage procurement process is required to select a smaller number of suitable companies for Invitation to Tender.

8.1.8. Other procurement methods are available, and if applicable, the Procurement Team will recommend these as the appropriate procurement route.

8.2. Advertising of Tender Opportunities

8.2.1. All local tender exercises must be advertised as a minimum on the Councils website and the West Sussex Opportunities Portal via the Procurement Team. Other media can also be used to ensure market penetration. The advertisement must contain details of the tender exercise including timescales, the short-listing and award criteria and details of how to apply for the opportunity.

8.2.2. In addition, all EU tenders, excluding those that are deemed to be a Part B contract, must be advertised by the Head of Legal and Democratic Services in the Official Journal of the European Union.

8.2.3. Once the advertisement has been placed it is the responsibility of the lead officer, or nominated officer, to provide either the PQQ documentation, if this process is being used, or the Invitation to Tender documentation to all suppliers in a timely manner. A record of all PQQs and/or Invitation to Tender packs sent out must be kept.

8.3. Pre Qualification Questionnaire and Short-listing

8.3.1. A Pre Qualification Questionnaire (PQQ) is used to short-list suppliers that you would like to be invited to submit a formal tender. The selection criteria, weightings and any minimum pass-mark must be communicated to potential suppliers either as part of the advertisement or in the PQQ documentation. Selection Criteria deal with the ability of the supplier to satisfy certain minimum levels of economic and financial standing, legal capacity and/or technical or professional ability including past experience (see section 8.6 for more information)

8.3.2. Suppliers invited to respond must be given an adequate period in which to prepare and submit a proper PQQ consistent with the urgency of the contract requirement. Where an EU tender process applies, this must not be below the minimum time period allowed. The submission of PQQs should be made to the lead officer/department and a log should be kept of all PQQs returned.

8.3.3. The PQQ pack should, where appropriate, contain the following information (see the procurement toolkit for standard documentation and further guidance):

    • Information Memorandum – Concise information about the Council, what the requirements are, details of the evaluation procedure, and timetable for completion
    • Supplier Selection Criteria – this document should contain:

a. Full details of the evaluation criteria and weighting that will be used to identify those companies invited to tender.

b. Details of any minimum criteria or score required to progress to the Invitation to Tender stage.

c. If it has been decided to invite a minimum and/or a maximum number of companies to tender these numbers must be stated. NB: for above EU Threshold procurements the minimum number of companies invited to tender is five (5)

d. Details of the process used to determine which companies are invited to tender if there are more suitable companies that the maximum number stated in the documents (e.g. “maximum number of companies invited to tender will be 10. In the event there are more than 10 companies the top 10 as determined by the total evaluation score will be invited to tender”).

    • Draft specification – detailing the Council’s requirements
    • The Pre Qualification Questionnaire (the template PQQ can be found in the toolkit. It needs to be tailored to each procurement exercise in consultation with the procurement team)

8.4. PQQ Evaluation Process

8.4.1. The lead officer must ensure:

    • The scoring/assessment model in the evaluation spreadsheets must be independently checked prior to the spreadsheet being used.
    • Confidentiality of PQQs, and the identity of Applicants are preserved at all times.
    • Information about one Applicant’s response is not to be given to another Applicant.
    • PQQs must be evaluated in accordance with the Selection Criteria detailed in the advertisement/documentation.
    • a thorough PQQ evaluation is undertaken by a minimum of two officers
    • they seek advice from the relevant service Division on any areas of Selection Criteria that require specialist knowledge in order to evaluate effectively e.g. Financial Information, Equalities and Diversity, Health and Safety, Sustainability etc.
    • the PQQ evaluation scoring spreadsheet is independently checked before the Invitation to Tender (ITT) is drawn up

8.4.2. Upon conclusion of the PQQ evaluation process the lead officer must write to all unsuccessful applicants advising them of the reasons why they have been unsuccessful, allowing a short period of time for the applicants to request further information as required. If the applicant requests further information or a formal debrief this should be provided.

8.4.3. Once the unsuccessful applicants have been advised the Invitation to Tender list can be drawn up and tender documentation despatched to those companies on the ITT.

8.5. Invitation to Tender Pack

8.5.1. Tenderers invited to submit a formal tender must be given an adequate period in which to prepare and submit a proper tender consistent with the urgency of the contract requirement. This should not be less than a period of four weeks. Where an EU tender process applies this must not be below the minimum time period allowed.

8.5.2. All invitations to tender shall include the following (see the procurement toolkit for access to all standard documentation and further guidance):

    • Information Memorandum – Concise information about the Council, what the requirements are, how they link with the Council’s corporate objectives and details of the evaluation procedure and timetable for completion
    • Supplier Award Criteria – this document should contain: full details of the evaluation criteria and weighting, including any sub-criteria that will be used to award the contract, including details of any presentations/interviews or references that will be required.
    • Final detailed specification – detailing the Council’s requirements in sufficient detail to enable the submission of competitive offers
    • Council Terms and Conditions
    • Freedom of Information form
    • Price Schedule – a form for the bidder to complete detailing all of the tender prices
    • Method Statement – a series of questions asking the bidders to outline how the goods, works or service will be delivered (if appropriate to the contract)
    • Form of tender – this should contain:

a. 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

b. 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.

c. Notification that tenders are submitted to the Council on the basis that they are compiled at the Tenderers expense.

d. The method by which any arithmetical errors discovered in the submitted tenders are to be dealt with. In particular, whether the overall price prevails over the rate in the tender or vice versa

8.6. Evaluation Criteria

The evaluation criteria are those used to determine which suppliers are selected for Invitation to Tender or to determine the award of the contract. These criteria fall into two categories:

8.6.1. “Selection” Criteria

“Selection” criteria are those which cover elements such as suppliers’ capability, capacity and past experience, for example to satisfy minimum levels of economic and financial standing, and / or technical or professional ability. These matters are often assessed by means of a Pre-Qualification Questionnaire (PQQ) and usually require the supplier to provide:

    • Evidence that they fulfil the mandatory requirements relating to disclosure of criminal and misconduct offences required by Regulation 23 of the UK Public Procurement Regulations, 2006;
    • Evidence that they shall hold valid public liability insurance in the sum of not less than £10M in respect of any one claim;
    • 2 years’ satisfactory audited company/trading accounts;
    • evidence that they possess the necessary skills and ability to perform the type of contract for which they have been included on the list;
    • A minimum of 2 satisfactory trade/customer references from existing Public or Private Sector organisation clients (optional – if references are assessed at the PQQ stage you cannot take up further references at the award stage);
    • A copy of their company Health and Safety Policy and Plan;
    • A valid CIS tax exemption certificate (for construction related procurements);
    • Evidence of their Equalities Policy, and Environmental Policy and monitoring arrangements;
    • Any other supporting relevant information and documentation as may be required from time to time.

8.6.2. “Award” Criteria

Award” criteria are used in the tender to assess the ability of those Suppliers invited to tender to meet the Council’s specification and the cost of providing the service. This is often referred as the Most Economically Advantageous Tender (MEAT) evaluation. The Tenderer should be requested to complete method statements to evidence that they meet the Award Criteria. References and site visits can also be included at this stage if they have not been included in the PQQ Selection process.

8.6.3. The criteria at ‘Selection’ and 'Award’ stage are split into ‘Price’ and ‘Quality’ criteria and given a percentage score. The criteria must be no less than 60% on price unless formally agreed by the relevant Director.

8.6.4 “Selection” criteria must not be used at the “award” stage of a procurement process. In circumstances where an Open tender (i.e. where in a single stage process any company may submit a bid) process has been followed then the “selection” criteria should be assessed first and those suppliers which meet the selection criteria may then be evaluated against the award criteria.

8.6.4. The “Selection” criteria by which suppliers are selected for Invitation to Tender and the “Award” criteria used to determine the award of the contract MUST be clearly detailed in the Tender Notice and / or in the tender documentation. This information must include details of the relevant weighting of each question or section and detail any sub-criteria used. Furthermore, if there are any minimum “pass-mark” required for specific sections these must also be detailed in the documentation.

8.7. Tender Receipt and Opening

8.7.1. Hard Copy Postal Receipt

8.7.1.1 .All Tenders over a total value of £50,000 for goods and services, and £100,000 for works must be returned to the Head of Legal and Democratic Services in a sealed envelope indicating the subject matter and the date for return.

8.7.1.2 The Head of Legal and Democratic Services shall be responsible for the safekeeping of all Tenders until opening. Receipt of each Tender must be:

    • date-stamped
    • initialled by the receiving Officer
    • logged immediately upon receipt In the Tender Record Book.

8.7.1.3. The Head of Legal and Democratic Services must ensure that all Tenders are opened at the same time when the period for their submission has ended. Tenders must be opened in the presence of two Council representatives who may include officers and/or members (other than the Officer managing the process).

8.7.1.4. Upon opening, a record of the value of the Tender or Quotation must be recorded in the Tender Record Book. The summary must be initialled on behalf of the Head of Legal and Democratic Services.

8.7.1.5. No tender will be considered unless it is received by the date and time stipulated in the Invitation to Tender unless the Head of Legal and Democratic Services is satisfied that there is evidence of it having been despatched in sufficient time to have arrived before the closing date and time.

8.7.2. Electronic Receipt (e-tendering)

8.7.2.1. Where the procurement route has been agreed as an e-tender exercise using the Council’s approved e-tendering solution, all information must be submitted via the e-tendering solution by the date and time stipulated in the Invitation to Tender.

8.7.2.2. All tenders will be stored electronically by the e-tendering provider in a secure inbox. Once the deadline for receipt has passed the e-tendering system will electronically open the tenders.

8.7.2.3. In the event of the use of e-auctions it is customary in the case of late bids being received that the time (but not the date) for the receipt of tenders is extended to give rival bidders an opportunity to respond. Provided that such arrangements are set out in the tender details this procedure shall not be a breach of the Procurement Code.

8.8. Tender Evaluation Process

8.8.1. The lead officer must ensure that:

    • The scoring/assessment model in the evaluation spreadsheets must be independently checked prior to the spreadsheet being used.
    • Confidentiality of Tenders, and the identity of Tenderers, is preserved at all times
    • Information about one Tenderers response is not to be given to another Tenderer.
    • Contracts must be evaluated and awarded in accordance with the Selection and Award Criteria.
    • A thorough tender evaluation is undertaken by a minimum of two officers for all local tenders and a minimum of three officers for an EU tender process
    • They seek advice from the relevant service Division on any areas of Selection and Award criteria that require specialist knowledge in order to evaluate effectively e.g. Financial Information, Equalities and Diversity, Health and Safety, Sustainability etc.
    • The tender evaluation scoring spreadsheet is independently checked before a Contract Award Recommendation is made.

8.8.2. The arithmetic content in Tenders must be checked. If arithmetical errors are found they should be notified to the Tenderer, who should be requested to confirm or withdraw their Tender, in writing. Alternatively, if the rates in the Tender, rather than the overall price, were stated within the Invitation to Tender as being dominant, an amended Tender price may be requested to accord with the rates given by the Tenderer.

8.8.3. Where appropriate, the Lead Officer shall ensure that submitted tender prices are compared with any pre-tender estimates and that any discrepancies are examined and resolved satisfactorily.

8.9. Clarification Procedures and Post-Tender Negotiation

8.9.1. Providing clarification on an Invitation to Tender to potential or actual Tenderers whether in writing or by way of a meeting is permitted. When clarifying information on an Invitation to Tender the lead officer must ensure that all potential Tenderers, not just the one requesting the information, also receive notification of the clarification.

8.9.2. Post-Tender Negotiation means negotiations with any Tenderer after submission of a Tender and before the award of the contract with a view to obtaining adjustments in both price and content. It must not be conducted in an EU Procedure where this might distort competition particularly with regard to price.

8.9.3. Post-Tender Negotiation must only be conducted in accordance with any guidance issued by the Head of Legal and Democratic Services.

The Head of Legal and Democratic Services must be formally consulted:

    • wherever it is proposed to enter into Post-Tender Negotiation, and
    • about whether negotiation is to be with all Tenderers.

8.9.4. Post-Tender Negotiations must be conducted by a team of at least two officers.

8.9.5. Where Post-Tender negotiations result in a fundamental change to the specification or contract terms the contract must not be awarded but re-tendered.

8.9.6. If Post-Tender Negotiations are necessary after a single-stage Tender or after the second stage of a two-stage Tender, then such negotiations shall only be undertaken with the Tenderer who has previously been identified as submitting the most economically advantageous Tender or the lowest price. Officers appointed by the Director to carry out Post-Tender Negotiations should ensure that there are recorded minutes of all negotiation meetings and that both parties agree actions in writing.

9. CONTRACT AWARD PROCEDURE

9.1. Acceptance of Tenders – Approval Route

9.1.1. Acceptance of Tenders for any approved expenditure or for the disposal of assets other than land is delegated to:-

9.1.2. The relevant Head of Service for tenders up to £200,000 (or up to £500,000 in the case of Tenders for works contracts) where there is an adequate and approved budgetary provision.

9.1.3. The Director in consultation with the relevant Portfolio Holder for Tenders between £200,000 and £400,000 (or between £500,000 and £1m in the case of Tenders for works contracts) (subject to the call-in procedure) provided that:

    • this Procurement Code has been complied with
    • the most economically advantageous Tender is accepted
    • the Tender and all other costs associated with the procurement to which the Tender relates are within the approved budget
    • any necessary, written, approval has been obtained including ministerial and member approval relating to matters of policy.

9.1.4. In all other cases, a Tender may only be authorised for acceptance by the Cabinet or, in the case of urgency, by the relevant Head of Service in conjunction with the Head of Finance, Revenues and Benefits after consultation with the relevant Portfolio Holder, or in their absence, the Chair of the Cabinet.

9.2. Call in Procedure

9.2.1. Acceptance of tenders between £200,000 and £400,000 (or between £500,000 and £1m in the case of tenders for works contracts) is subject to Call-In under the Council’s Scrutiny Procedure Rule 14(a) to (i). See the Procurement Toolkit and/or refer to the Head of Legal and Democratic Services for further advice.

9.3. Notification to Tenderers

9.3.1. Tenders Above EU Thresholds

9.3.1.1 Following acceptance of a contract award recommendation in respect of any tender above the EU Procurement Directives financial limits or following the use of a Framework Agreement the appropriate responsible officer in consultation with the Head of Service must, subject to the satisfactory conclusion of a mandatory 15 day “standstill period”.

    • Simultaneously write to all unsuccessful Tenderers, using the most rapid communication method practicable (e.g. e-mail) providing the following information:

a. The criteria for the award of the contract;

b. The full reasons for the decision, including the characteristics and relative advantages of the successful tender;

c. the evaluation score of the Tenderer receiving the notice and the score(s) of the successful Tenderer(s);

d. The reasons (if any) why the Tenderer did not meet the technical specifications and / or the areas where the Tenderers submission was weaker than that of the successful Tenderer(s);

e. The name of the Tenderer(s) to be awarded the contract;

f. A precise statement on the date the standstill period is expected to end;

g. Details of how the ending of the standstill period might be affected (e.g. Tenderer requests further information regarding the Contract Award) and if so what contingencies will be made (e.g. the standstill period will be extended to allow further information to be provided);

9.3.1.2. The standstill period must run for a minimum of 15 days commencing the day immediately after the notice was sent to the Tenderer. If the expiry date of the standstill period falls on a weekend or public holiday then the expiry date shall be midnight on the next working day

9.3.1.3. Should a Tenderer request further information or a debrief during the standstill period the Council may extend the standstill for a further period until the Tenderer has received and considered the information.

9.3.1.4 If the Council receives notification from a Tenderer that it intends to challenge a Contract Award Decision then the Council must automatically refrain from entering into the contract. Failure to comply could result in the Courts making the contract Ineffective.

9.3.1.5 Upon satisfactory conclusion of the standstill period the Head of Service may advise the successful Tenderer(s) that the standstill period has passed and instruct the Head of Legal and Democratic Services to draw up a formal contract with the successful Tenderer(s).

9.3.2. Tenders Below EU Thresholds

9.3.2.1. Tenders below the EU Procurement Directives financial thresholds are not covered within the requirements laid out under this Rule. However, the Head of Service may consider it best practice to follow the general principles of this Rule when notifying unsuccessful Tenderers on the outcome of the procurement.

9.3.2.2. Where requested by an unsuccessful Tenderer the Officer should debrief, and explain the reasons why they were unsuccessful and the characteristics and relative advantage of the successful Tenderer, as appropriate. This should normally include:

    • how the Award Criteria were applied
    • where appropriate the prices or range of prices submitted, in either case not correlated to Tenderers’ names, and
    • the names of Tenderers where there were three or more Tenderers.

9.3.2.3. No other information should be given without taking the formal advice of the Head of Legal and Democratic Services.

9.4. Contract Documents

9.4.1. All Contract documentation should be developed in association with Legal and Democratic Services. The procurement toolkit provides standard documentation which can be used as a template to develop your contract. .

9.4.2. All Contracts, irrespective of value, shall be in writing and shall clearly specify:

    • the works, goods or services required
    • the price to be paid, any discounts or other deductions and the arrangements for payment
    • the time, or times, within which the contract is to be performed.

9.4.3. The Council’s official purchase order or standard terms and conditions issued by a relevant professional body must be used where applicable.

9.4.4. The formal advice of the Head of Legal and Democratic Services must be sought for the following contracts:

    • those involving leasing arrangements (these also require approval of the Head of Finance, Revenues and Benefits)
    • where it is proposed to use a supplier’s own contract terms and conditions.

9.5. Contract formalities – Signature or Sealing

9.5.1. All contracts must be concluded before the supply, service or construction work begins, except in exceptional circumstances, and then only with the prior written consent of a Director. A contract award letter is insufficient.

9.5.2. Signature

The Officer responsible for securing signature of the contract must ensure that the person signing for the other contracting party has authority to bind it.

9.5.3. Sealing

9.5.3.1. Where contracts are completed by each side adding their formal seal, such contracts shall be signed by at least two authorised signatories.

9.5.3.2. Every Council sealing will be consecutively numbered, recorded and signed by the persons witnessing the seal. The seal must not be affixed without the authority of the Cabinet or a Head of Service or Director acting under delegated powers. A contract must be sealed where:

    • the Council wishes to enforce the contract for more than six years after its end, or
    • where the Total Value is expected to exceed £100,000.

10. RECORD KEEPING

10.1. The following documents must be retained in a secure and easily retrievable format;

    • invitations to quote and quotations received
    • Invitation to Tender and tenders received
    • a written record of any exemptions obtained under the Procurement Code and the reasons for them
    • any Contracting Decision and the reasons for it
    • the Award Criteria
    • all evaluation information/reports
    • clarification and post-tender negotiation (to include minutes of meetings)
    • the contract documents
    • the post-contract evaluation and monitoring documentation
    • written records of all communications with all Tenderers and with the successful Tenderer throughout the period of the contract

10.2. Written records must be kept for a minimum of six years (12 years if the contract is under seal) after the final settlement/end of the contract. However, documents which relate to unsuccessful Tenderers may be disposed of after 12 months from the award of the contract, provided there is no dispute about the award. Further guidance on document retention periods is included in the Procurement Toolkit.

10.3. The original signed/sealed contract documents must be forwarded to Legal and Democratic Services for indexing, inclusion on the Council’s contracts register and secure storage.

11. BONDS AND PARENT COMPANY GUARANTEES

11.1. The Officer must consult the Head of Finance, Revenues and Benefits about whether a Parent Company Guarantee is necessary when a Tenderer is a subsidiary of a parent company, and:

    • the Total Value exceeds £300,000, or
    • the award is based on evaluation of the parent company, or
    • there is some concern about the financial stability of the Tenderer,

about whether a Bond is needed:

    • where the Total Value exceeds £300,000, or
    • where it is proposed to make stage or other payments in advance of receiving the whole of the subject matter of the contract and there is concern about the financial stability of the Tenderer.

12. PREVENTION OF CORRUPTION AND BRIBERY

12.1. The Officer must comply with the Council’s Employees’ Code of Conduct and must not invite or accept any gift or reward in respect of the award or performance of any contract.

12.2. High standards of conduct and integrity are obligatory. Corrupt behaviour will lead to dismissal and is a criminal offence under the Bribery Act 2010.

12.3. Officers shall not use any contract or other procurement arrangement entered into by the Council for their own personal use, benefit or gain other than with the prior written approval of the Head of Finance, Revenues and Benefits.

12.4. The following clause must be included, in every Council contract:

The Council may terminate this contract and recover all its losses if the Contractor, its employees or anyone acting on the Contractor’s behalf does any of the following things:

(a) offer, give or agree to give to anyone any inducement or reward in respect of this or any other Council contract (even if the Contractor does not know what has been done); or

(b) commit an offence under the Bribery Act 2010 or Section 117(2) of the Local Government Act 1972; or

(c) commit any fraud in connection with this or any other Council contract whether alone or in conjunction with Council members, contractors or employees.

12.5. Any clause limiting the Contractor’s liability shall not apply to this clause.

13. DECLARATION OF INTERESTS

13.1. 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 financial or personal interest has been or is proposed to be entered into by the Council, he or she shall immediately give written notice to the Head of Legal and Democratic Services. The Head of Legal and Democratic Services shall report such declarations to the appropriate Committee.

13.2. Such written notice is required, irrespective of whether the monetary interest is direct or indirect. An indirect financial interest is distinct from a direct financial interest in as much as it is not a contract to which the member or employee is directly a party.

13.3. 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 financial interest for the purposes of the Procurement Code.

13.4. The Head of Legal and Democratic Services shall maintain a record of all declarations of interests notified by members and officers.

13.5. The Head of Legal and Democratic Services shall ensure that the attention of all members is drawn to the appropriate provisions within the Local Government Code of Conduct.

14. POST-CONTRACT MONITORING AND EVALUATION

14.1. During the life of the contract the it is recommended that the Contract Manager/ Lead Officer should, where appropriate, monitor;

    • performance
    • compliance with specification and contract conditions
    • the cost of the contract against budgetary provision
    • any Best Value requirements
    • user satisfaction and risk management.

14.2. Further information on the importance and benefits of Contract Management can be found within the Procurement Toolkit.

15. CONTRACT EXTENSION

15.1. Any contract that expressly provides for extension may be extended in accordance with its terms or extended by negotiation, provided that the officer is satisfied that Best Value will be achieved and the extension is reasonable in all the relevant circumstances.

15.2. Where the contract terms do not expressly provide for extension, contracts subject to the EU procedures may only be extended in exceptional circumstances. Legal advice should be sought as appropriate.

15.3. Approval for contract extension for any approved expenditure is delegated to:

    • The relevant Head of Service for contract values up to £200,000
    • To the relevant Director in Consultation with the Portfolio Holder for contract values between £200,000 and £400,000

15.4. In all other cases a Contract may only be extended with the agreement of the Cabinet or, in the case of urgency, by the relevant Head of Service in conjunction with the Head of Finance, Revenues and Benefits after consultation with the Chair of the Cabinet and Chief Executive.

16. CONTRACT TERMINATION

Contracts may be terminated by the appropriate Head of Service early by agreement prior to the expiry date or in accordance with the Termination Provisions set out in the contract. Advice should be sought from the Head of Legal and Democratic Services before terminating any contract.

17. REVIEW AND AMENDMENTS OF THE PROCUREMENT CODE

This Procurement Code shall be reviewed and updated on a regular basis, not less than annually. The amended Procurement Code shall be agreed and adopted by the Full Council.

18. PROCUREMENT THRESHOLDS AND CONTRACT AWARD PROCEDURES - WORKS CONTRACTS

Total Value

Procurement Route

Short-listing of potential suppliers

Receipt of Tenders

Contract Approval/Award

Method of Contract Completion

£500 to £10,000

Two quotations confirmed in writing. If a corporate contract is available it must be used and no further quotations are required

Officer

Quotations returned to Department

Officer

Signature

£10,000 - £100,000

Where available you must use a corporate contract. Three written quotations to be opened and reviewed by at least two officers.

Officer and Line Manager

Quotations to be received by responsible officer and reviewed by at least two officers.

Officer and Line Manager

Signature

£100,000 – EU Threshold

Invitation to tender by advertisement on the Council’s website and the West Sussex Opportunities Portal

Additional media can be used.

Tenders to at least four tenderers

Evaluation by a min of two officers.

£50,000 - £500,000 Officer, Line Manager and Head of Service

Tenders to be returned to Democratic Services and opened in the presence of two Council representatives (members and/or officers)

£100,000 - £500,000 Head of Service/Director approval.

 

Over £100,000 Sealing

£500,000 – EU Threshold Officer, Line Manager and Head of Finance

£500,000 to £1m – approval by Director in consultation with Portfolio Holder (subject to call-in procedure).

Sealing

Above £1m – approval by Cabinet

Sealing

Above EU Threshold

EU Procedure, or where this does not apply, Invitation to Tender by advertisement on the Council’s website and in the Official EU Journal. Additional media can be used.

Tenders to at least five tenderers

Evaluation by a min of three officers.

Officer, Line Manager, Head of Finance and Head of Legal and Democratic Services

Tenders to be returned to Democratic Services and opened in the presence of two Council representatives (members and/or officers)

Approval by Cabinet

Sealing

19. EU PROCUREMENT DIRECTIVES – PART A AND PART B SERVICES

Under the scope of the EU Procurement Directives Services contracts are divided into two categories – “Part A Services” and “Part B Services”, examples of which are detailed below.

Part A

Part B

Maintenance, repair and installation services

  • vehicle maintenance
  • equipment and ICT maintenance
  • machinery maintenance
  • equipment/machinery installation services

Hotel and restaurant services

  • Hotel accommodation
  • Catering and cafeteria services

Land transport services including armoured car services and courier services except mail transport

Rail transport services

  • rail travel

Air transport services of passenger and freight except mail transport

Water transport services

Transport of mail by land and by air

  • postal services

Supporting and auxiliary transport services

Telecommunications services

  • Fixed and mobile telecoms

Legal Services

Financial Services

  • Banking
  • Insurance

Personnel placement and supply services

  • Temporary agency staff

Computer and related services

  • IT consultancy and programming services
  • Data processing services

Investigation and security services except armoured car services

Research and Development services

Education and vocational education services

Accounting, auditing and bookkeeping services

Health and social services

Market research and public opinion polling services

Recreational, cultural and sporting services

  • Leisure management services
  • Grounds maintenance

Management consultancy services

 

Architectural and engineering services; urban planning and landscape engineering; scientific and technical and technical testing/analysis service

 

Advertising services

  • Recruitment advertising
  • General and statutory advertising
 

Building Cleaning services and property management services

  • Building cleaning
  • Facility management services – security services, property maintenance, etc
 

Publishing and printing services

  • Marketing, creative and design services
  • Printing
 

Sewage and refuse disposal services

  • Refuse and recycling services
  • Street cleansing
 

20. DEFINITIONS AND FURTHER INFORMATION

These terms occur throughout this document as italics and are purely to act as an aide memoir to refer to this glossary and do not alter or infer any meaning to the text of the document.

 

Award Criteria

The criteria by which the successful quotation or tender is to be selected

 

Award Procedure

The procedure for awarding a contract

 

Best Value

The duty on local authorities to secure continuous improvement in the way in which their functions are exercised, having regard to a combination of economy, efficiency and effectiveness.

 

Bond

An insurance policy. If the contractor fails to deliver what it has promised under a contract with the Council, the Council can claim from the insurer the sum of money specified in the bond (usually 10% of the contract value). A bond is intended to protect the Council against any additional costs arising from the contractor’s failure or default.

 

Consultant

Any person (not an employee), agency or firm engaged for a limited period of time, on an ad-hoc and fee paying basis, to carry out a specific task or tasks. A consultant provides subject matter expertise and/or experience to the Council as required. This may, for example, be because the Council does not possess the skills or resources in-house or requires an independent evaluation/assessment to be made. Tasks would include investigating problems, providing analysis or advice or assisting with the development of new projects/systems.

 

Contracting Decision

Any of the following decisions:

- withdrawal of an invitation to tender

- whom to invite to submit a quotation or tender

- short listing

- award of contract

- any decision to terminate a contract.

 

Employees’ Code

The code regulating conduct of officers which forms part of the Council’s constitution.

 

EU Procedure

The procedure required by the EU where the total expected procurement value of goods, works or services exceeds the relevant EU threshold.

 

EU Threshold

The financial threshold at which EU public procurement directives must be applied to a relevant Contract. Refer to the Procurement Toolkit for current EU thresholds.

 

Financial Regulations

The financial regulations contained within the Constitution.

 

Invitation to Tender

Invitation to Tender documents in the form required by the Procurement Code.

 

Nominated Suppliers and Sub-contractors

Those providers specified in a main contract for the discharge of any part of that contract.

 

Non-commercial Considerations

The Council may wish to include certain policy considerations, such as workforce, environmental or social matters either in the scope of the goods, works or services which are being procured, the selection of the contractor, the award of the contract or in the execution of the contract. The Council can only take into account policy considerations to the extent that these are permitted by both domestic and European law, the key provisions of which are set out in Section 1 of the Procurement Tool Kit.

 

Parent Company Guarantee

An agreement which binds the parent of a subsidiary company as follows: If the subsidiary company fails to do what it has promised under a contract, they can require the parent company to do so instead.

 

Procurement Toolkit

The Procurement Toolkit prepared by the Director of Resources for guidance in conducting procurement activity.

 

Quotation

A quotation of price and any other relevant matter without the formal issue of an Invitation to Tender.

 

Relevant Contract

Any arrangement made by, or on behalf of, the Council for the carrying out of work or for the supply of goods, materials or services. These include arrangements for:

- the supply or disposal of goods

- hire, rental or lease of goods or equipment

- execution of works

- third party contracts or call-off contracts awarded by another public sector body

- the delivery of services, including those related to:

      - the recruitment of staff

      - land and property transactions

      - financial and consultancy services.

   

Relevant Contracts do not include contracts relating to:

    - the employment of staff

    - the engagement of Counsel

    - the acquisition, disposal, or transfer of land (for which Financial Regulations shall apply).

 

Short listing

Where Tenderers are selected from a list of interested parties to submit a quotation or tender.

 

Tender

A Tenderers proposal submitted in response to an Invitation to Tender.

 

Tenderer

Any person who asks or is invited to submit a quotation or tender.

 

Tender Record Book

The tender record book maintained by the Head of Legal and Democratic Services to record details of tenders received (see Procurement Code Paragraph 11.1.6).

 

Third Party Contracts, or Framework Agreements, or Call-Off Contracts

Contracts awarded by a third party which have been structured to allow authorised users to procure goods and services by quoting, to the contractors and suppliers, the appropriate contract reference details. The management and administration of the contract resides with the awarding authority. The use of these contracts may alleviate the necessity for staff to initiate their own tendering exercise.

 

Total Value

Relates to the TOTAL contract sum or the TOTAL amount of purchase. This means that any annual value must be multiplied by the number of years the contract is likely to be in operation for e.g. A purchase for £40,000 would fall under the £10,000 to £50,000 bracket, whereas a contract for £40,000 over a four year term would equal £160,000 and would therefore be subject to the EU Directives. It is not acceptable to either enter into separate contracts or select a method of calculating the total value in order to avoid or minimise the application of the Procurement Code. It is also not acceptable to lessen the contract term so that the contract falls into a lower threshold. When in doubt as to the length of a contract term, a four year period is assumed.


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