What will drive success for urban mobility suppliers in public infrastructure procurements?

With the upcoming launch of the Crown Commercial Service's (CCS) Transport, Technology and Associated Services Framework Agreement tender (TTAS) – a crucial route to market for suppliers of urban mobility technology and services – potential bidders will be considering how to address new requirements in the procurement process and maximise their chances of success.

How can suppliers anticipate issues that they often come up against during a bidding process? How should a bidder prepare for the new mandatory social value criteria? And what are the time limits for pursuing procurement remedies? These were some of the questions addressed by Craig McCarthy and Kate Davies of Osborne Clarke at a recent 'Building the future of Urban Mobility' webinar, in which they shared tips on how successfully to submit public contract bids.

What you can do now

There are two key stages in a procurement process in which a bidder can maximise its chances of being awarded to a place on a framework:

• Selection: the fitness and capability of the bidder will be assessed in the selection stage to ensure the supplier is competent to perform the contract.
• Evaluation: all potential bidders will undergo an evaluation process which will identify the most economically advantageous tender.

The CCS is due shortly to publish the TTAS tender; at which point, bidders will need to respond within the minimum timeframe stipulated that can be as short as 30 days. Due to this relatively quick turnaround, bidders may wish to take preparatory steps now in advance of tender publication.

By reviewing existing CCS questionnaires, bidders can begin to prepare for the selection questions likely to be posed in the TTAS tender. This can help alert the bidder to any potential issues that might be encountered, for example, locating certificates of past performance, previous convictions (including health and safety, environmental, and tax) and past breaches of public contracts. Suppliers can then consider suitable mitigation strategies to demonstrate how previous issues have been rectified.

The primary focus of the evaluation is the balance of quality and price of a bid. Fully understanding questions, specifications and scoring criteria is crucial, and asking the right clarification questions is especially important in this regard. Understanding the priorities of the purchasing body and the weightings it is applying to its evaluation criteria is crucial for developing a successful bid strategy.

The social value criteria

Since 1 January 2021, all central government bodies must include award criteria on social value at a minimum weighting of 10%. In order to score well on these criteria, bidders will be expected to demonstrate additional value in the form of a wider community or public benefit beyond the value of the contract itself.

The Cabinet Office has developed a Social Value Delivery Model that contracting authorities are expected to use in their procurements as the social value award criteria. The model sets out a list of priority areas, policy themes and outcomes, model questions and scoring methodologies. When designing their procurements, contracting authorities are expected to select priority areas that are relevant and proportionate to the contract being procured, choosing between: Covid-19 recovery, tackling economic inequality, fighting climate change, equal opportunity and wellbeing. Contracting authorities should then invite bidders to answer the relevant model question that corresponds to their chosen priority area.

CCS will need to select priority areas that are relevant and proportionate to the TTAS. In order to start preparing, bidders can consider:

• whether they have current social value initiatives in each of the priority areas;
• whether those initiatives can be tailored and bespoked to the TTAS;
• how those initiatives can be presented in a tender response, how bidders can show board level responsibility for those initiatives; and
• how those initiatives can be monitored throughout the lifetime of the TTAS.

Remedies for unsuccessful bidders?

Bidders have legal rights under the Public Contract Regulations 2015 (PCR). If a bidder has grounds to believe the contracting authority has breached a duty under the PCR, for instance by failing to abide by the principles of transparency and fairness, a bidder may be entitled to bring a challenge.

The timing of a challenge is essential as claims must be brought within 30 days from the date on which the aggrieved bidder knew or ought to have known of a breach of the regulations. It is also important to note that if the claim is brought before the framework agreement is signed, the court can order that the procurement is repeated or allow the bidder another opportunity to be added to the framework. In contrast, if a claim is brought after the framework agreement has been signed, the aggrieved bidder will in most cases be left only with the remedy of damages.

OC comment

Opportunities in the mobility sector are increasing alongside advances in technology and a push to meet the government's decarbonisation commitments. The public sector is set to become one of the biggest purchasers in the market and, therefore, we are likely to see increasing use of public frameworks across the mobility space.

If you would like to attend future events discussing public procurement or are seeking procurement advice, please email one of our experts below and we would be delighted to help. You can also sign up here to future events