Route 3 - Develop Strategy - Procurement Route - Open

In the Open Procedure any interested bidder may submit a tender. All organisations are free to use this procedure, which can be applied to both Contracts and Framework Agreements, however in some cases it can be beneficial to choose a procedure where the number of the bidders can be reduced at the selection stage based on their capability and capacity, especially if the Organisation does not have enough resources (such as time) to conduct a full Open Procedure.

The practicality of the Open Procedure will depend upon the number of tenders received and the nature of the evaluation criteria. If the Organisation receives a large number of tenders, the evaluation of them is likely to be time consuming.

[For Care and Support Services only: For many care and support services contracts, an organisation may use the procurement procedures, tools and techniques of its choosing. You should follow a procurement procedure, as a matter of best practice, that is proportionate to the value of the contract and to take account of some fundamental considerations (for example, the TFEU fundamental principles where relevant and fair work practices).

When doing so, you may choose to adapt or streamline the Open Procedure described in the Public Contract (Scotland) Regulations 2015. If you do so, you are not obliged to follow the detailed procedural requirements set out in those Regulations. You should therefore not refer to the Regulations in the tender documentation issued to participants, as this may create an expectation that the detailed procedural requirements will be followed. In all cases, you should ensure that the procurement process is described accurately and clearly, and then adhered to.]

The selection and award criteria must be developed and managed quite separately, however it is possible for Procurement Officers to conduct these stages simultaneously or in any order where the procedure allows.  For instance, when using an Open Procedure it may be desirable to assess the tenders (award stage) prior to checking minimum criteria are met when only a small number of bids have been received.  Where this is done you must still ensure that you verify the absence of grounds for exclusion and of fulfilment of the selection criteria. This needs to be carried out in an impartial and transparent manner so that no contract is awarded to a bidder that should have been excluded or does not meet the selection criteria.

As with all aspects of the Procurement Journey, the activities at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement.  As a minimum the processes must be carried out in a transparent way that ensures there is no distortion of the market place, the outcome cannot be a procurement that unduly favours or disadvantages a particular bidder and it is the responsibility of the Organisation to make sure that these requirements are met.
 
Timescales to Consider

After despatching the contract notice, at least 35 days has to elapse before the closing date for receipt. In the case of tenders which may be submitted electronically , the number of days decreases to 30.

Organisations may make known their intentions of planned procurements through the publication of a Prior Information Notice (PIN). A PIN, in this instance, cannot be used as a call for competition – a Contract Notice must be despatched later- but minimum timescales for response can be reduced.

If using a PIN only a minimum of 15 days needs to elapse after the dispatch of the Contract Notice before the closing date for the receipt of tenders if-

  • the PIN includes certain information required for the Contract Notice in so far as it is available when the PIN is published; and

  • the PIN is sent for publication between 35 days and 12 months before the Contract Notice is sent.

The ITT time limits set for receipt of tender submissions from bidders should be long enough for responsive tendering  taking into account: the contract complexity and the time required to prepare and submit a bid.

Changes to a tender closing date must be made if significant changes are made to the Procurement Documents and/or if information requested by a bidder in a timely fashion have not been supplied a minimum of six days before the tender deadline (or 4 days in accelerated procedures).  In such cases bidders must be informed of the changes.

Extending a tender deadline should again be proportionate to the complexity of the change and /or the additional information being provided.  To proceed with a tender extension the necessary approval must be obtained in accordance with your internal governance procedures. If the date is amended, the new date should be notified to all tenderers, and if any tenderer indicates that they have already submitted a tender then they should be given the opportunity of withdrawing the original tender and submitting a revised one in line with the extended tender deadline.

Urgency

Organisation are allowed to shorten certain deadlines in case of urgency which needs to be suitably justified. It should be clarified that this need not be an extreme urgency brought about by events unforeseeable for and not attributable to the Organisation but the OJEU notice must provide a justification.

If the Organisation is able to appropriately justify the reason for using urgency, then the closing date for receipt of tenders can be set to 15 days after the Contract Notice was sent for publication

Issuing Documents

This is the only procedure in which an organisation is required to make the Invitation to Tender available from the outset of the procurement (i.e. when the Contract Notice is published).

If the Organisation decides to use an Open Procedure, it has to provide full information about the requirements and qualitative selection process. The Invitation to Tender (ITT) documents must be issued to all bidders requesting one.

All Procurement Documents including the ITT must be made available for free direct download from the internet from the time at which they are sent to participants in the process and access must be unrestricted.  The Contract Notice must specify the internet address at which the Procurement Documents can be accessed.  If exceptions apply, which mean that the Procurement Documents are not to be made available electronically, the Contract Notice must detail how access can be achieved.

If the documents cannot be accessed immediately by electronic means then the timescales should be extended by five days, except in a case of a substantiated urgency.

The Open Procedure allows for ITTs to be issued on request at any point prior to the date set for submission of tenders.

When an ITT is issued near to the closing date, the recipient should be made aware that the submission date is imminent.

Clarification of Bids

You can clarify some aspects of the tender, however, not fundamental aspects where such changes are likely to distort competition or cause discrimination. Any discussions with bidders should be properly recorded and meetings which discuss proposals/requirements in any detail should be avoided where these discussions might have the potential to distort competition.  For more information please refer to Post Tender Clarification.

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