Clarifications are a common process within tender evaluations - used as a means to gain understanding, remove uncertainty or ambiguity or to clear up any contradictions in bidder submissions. However, public sector organisations need to be very careful how they use clarifications to avoid being accused of creating an unfair and non-transparent playing-field.
The Public Contracts Regulations do not provide much help when it comes to ‘clarifications’. There are only two occurrences of the word ‘clarification’ in the entire regulations (and these only relate to Competitive Dialogue and Design Contests). At a deeper level, the regulations certainly do allow contracting authorities to ‘negotiate’ with tenderers “with the aim of adapting the tenders to the requirements specified in the contract documents” but the Authority must ensure “equal treatment” and must not give any tender an advantage through negotiation. It is also clear that when applying any Abnormally Low process, the Authority must request further information before rejecting a tenderer. But what about the clarifications that go on in so many procurements when further information is required to properly understand what is being tendered?
It should go without saying that tenderers cannot be given ‘another bite of the cherry’ by resubmitting parts of the tender; but where does an authority draw the line between gaining an understanding of a tender submission and allowing them an unfair advantage?
Let’s take a simple example of a CV submitted as part of the tender and being evaluated on the basis of the level of confidence you have in the individual’s ability. In reading the CV an evaluator is not sure of exactly what role was undertaken by the individual on a certain project. There are some generic descriptions but the specific responsibilities are not detailed. Do you clarify or not? I guess your options are:
a) Go back to the tenderer to request further details to better explain the responsibilities
b) Mark down the CV as it is not clear what the specific responsibilities were
c) Give the CV the benefit of the doubt as it could be assumed that they did carry out the responsibilities
d) Try to follow up with the project in question to ascertain what the responsibilities were
I am sure that all four of the options above have been done out there somewhere. The key issue to understand, however, is “What is the risk of challenge?”. There is certainly a risk of challenge with the first three options and unless you follow up every role undertaken by every CV for every tenderer, there is a risk of challenge in d) as well. The other key unknown here is how clear was the criteria/question asked in the first place, but you can see that from a very simple and relatively straight forward example the question of To Clarify or Not To Clarify is still likely surface.
I believe that there is a very simple test that can be applied to protect authorities against the risk of a challenge in the area of clarifications and that is “Has the tenderer submitted new information?” If the answer is yes, you run the risk of challenge and if the answer is no, you should be on safe ground.
PS – This should not be treated as legal advice.