One of the most knowledgeable and interesting academics in the field of public procurement law, Albert Sanchez-Graells, was featured in the Guardian newspaper last week. The paper reported:
“Liam Fox’s Department for International Trade may have broken EU procurement rules by specifying in advertisements that contractors must support Brexit.
Albert Sanchez-Graells, senior lecturer in law at Bristol University law school, said the “cultural fit” criteria, included in two advertisements asking tech firms to bid for work with government, were too subjective to comply with EU procurement rules”.
The Department, created last year to manage new trade deals as the UK moves out of the EU, advertised for a contractor to work as a “Trade Remedies Discovery Team”. What has caused the fuss is that one of the evaluation criteria with a 15% weighting was given as “cultural fit”. That was defined by a number of elements, such as “committed to the best possible outcome for the United Kingdom following its departure from the European Union“.
The other sub-criteria in this group require tenderers to “be focused enough to stick to the task at hand and not be side-tracked in a vast and quick-moving field; be committed and hard-working, to deliver under time pressures; and be enthused by the prospect of working at the frontline in such an exciting and dynamic area”. These are meant to be assessed on the basis of a written proposal and presentation (a “beauty contest”, as we might say).
Even before we saw Sanchez-Graells’ comments, it seemed clear that this was pushing the boundaries of what is allowable under EU and UK procurement law. Any evaluation criteria have to be clearly linked to the subject matter of the contract, and it is hard to see what the arguably personal political views of the consultants appointed have to do with their ability to execute the work specified.
Sanchez-Graells goes into this in a lot more detail on his excellent “How To Crack A Nut” blog here. He also points out that this entire evaluation criteria is very subjective, and the fact that it will be assessed in part at interview makes the whole process even more open to bias and favouritism. There is also the question of whether it is the individuals involved in the contract delivery that matter, and have to show this commitment, or the organisation – but then can organisations really have a corporate “commitment” to a cause like this?
When I occasionally advise contracting authorities, I suggest they stay away from “soft” evaluation criteria of this nature – such as trying to assess “how committed the supplier is to our mission”. It is easy to understand why authorities want that, but it is simply impossible to assess in practice through the selection process. Let’s face it, if the supplier is bidding they presumably want to win the contract, so are hardly likely to say “we want your money but we don’t believe in what you’re doing”.
So all you get in the bid in response to that sort of question is some warm words of support. When this has come up as an issue, I just say to clients “this is the sort of thing you will get” and give them my own few sentences of platitudes. That usually makes them realise that this is not a sensible way of differentiating between suppliers and choosing the best. As Albert says this does also “raise the risk of awarding the contract to the tenderer shown to be the best liar”! (We like his way with words)
He also makes the point that if this sort of issue is to be covered, it might be better as a contract compliance or even termination clause – so it would not be unreasonable perhaps to say in the contract “the provider must be committed to helping the UK the best possible outcome …” Clearly, you would want anyone doing this sort of work to desire the best result; that is not the issue here. It is the concept of translating that reasonable need into a scored evaluation criteria that is the odd aspect of this case.
Indeed, the suspicious or cynical might wonder if the Minister and the Department have a preferred provider in mind, and this subjective criterion with 15% weighting is there to “help” the right provider win. I’m far from sure that is the case, but his does seem to be a dangerous precedent. What if a left-wing government said “you must be committed to Marxist principles” in a tender for consulting services (or supplying laptops for that matter)? Anyway, it is all very fascinating and we suspect we might yet hear more about the issue.
PS We were surprised to see this sentence in the newspaper article – how did it get through the editorial process than one might assume The Guardian has in place? “Nobody who does procurement professionally would not have identified this as something that cannot be done”. A rather confusing triple negative! I think I know what it means but must be a better way of putting it – “Anyone who does procurement professionally would identify this as something that cannot be done” I guess.