Get some tips from the experts!
When your marketing team finds a suitable procurement notice on the Finnish Hilma noticeboard (www.hankintailmutust.fi/fi/) or TED (Tenders Electronic Daily), your business should launch a process of assessing its ability and willingness to take part in the competitive tendering. This process has several stages, with many factors affecting your decision to participate in the competition. These factors at least include the purpose and scope of the procurement, the requirements for bidders, the current order book status of your business, and the resources that you can devote to the tender. It pays to spend enough time evaluating your participation where possible. Here are some practical tips for participating in competitive tendering.
1. Clarifying the timetable
The first step is to determine the following important dates and details from the procurement notice:
the deadline for submitting supplementary questions
the precise time for submitting tenders
where the tender will be submitted, and
how to submit a tender (see point 4).
Determining these dates is particularly important for submitting tenders:
The deadline for submitting supplementary questions gives you an opportunity to ask questions about the competitive tendering process and the subject of the procurement. The Finnish Act on Public Procurement and Concession Contracts allows a review of the tender dossier within the procedure itself in certain procedures (e.g. negotiated and competitive negotiated procedures). The opportunity to ask supplementary questions is worth taking, especially in an open procedure. The comparison of tenders will then be made on the basis of tenders received that satisfy the eligibility criteria and comply with the call for tenders. Supplementary questions are an effective way of clarifying any points that may remain open in the tender dossier received from the contracting entity. Such points may include determining the price or the roles of the parties in the event of any ambiguity in the contract. Tenderers often only notice the need for additional questions just before the deadline for submitting tenders, so it is worthwhile thoroughly examining the tender dossier well before the deadline for submitting supplementary questions.
The deadline for submitting tenders (i.e. the date and precise time) is the most important detail for tenderers to note. You are ultimately responsible for ensuring that your tender arrives at the contracting entity within the prescribed time limit and in the correct form. Determining the end of the tender submission period is important in order for your business to assess whether there is enough time to collate the required documentary attachments and prepare the tender in other respects.
2. Clarifying the requirements: subject of the procurement and tenderers
After ascertaining the foregoing dates as part of your assessment of whether to participate in competitive tendering, you must study the requirements relating to the subject of the contract. Whether supplying goods, services or a contract, the requirements for the subject of the procurement itself must be clarified. This is a key aspect of reviewing your resources and capacity as a tenderer. You will need to assess the feasibility of the procurement subject, meaning whether you are in a position to deliver this particular procurement.
Another key factor is to determine the requirements for tenderers, meaning whether your business or its staff satisfy the requirements in respect of suitability or experience. Section 85 of the Act on Public Procurement and Concession Contracts provides that a turnover requirement may generally not exceed twice the size of the subject of the procurement, meaning that the minimum turnover requirement in a procurement worth EUR 5 million, for example, may not exceed EUR 10 million. The Act nevertheless allows a higher turnover requirement in relation to the value of the procurement for a legitimate reason, for example when performing a contract involves substantial risk.
These requirements governing tenderers may require you to look into whether you should submit your tender jointly with a partner business. A joint tender may be submitted on behalf of all of the enterprises in a group, for example. It is also possible to submit a tender on behalf of one enterprise and have other businesses serve as its subcontractors, but without restricting competition. The term resource subcontractor denotes a subcontractor whose resources are invoked by the tendering enterprise in order to satisfy the eligibility requirements for tenderers. To avoid ambiguities and possible disputes, it is worthwhile spending some time investigating potential joint tendering partners, the tendering template and the division of responsibilities.
3. Reviewing the tender dossier
Once you have verified your capacity to deliver the product, service or contract concerned, and also confirmed that you satisfy the eligibility requirements for tenderers, it is time for a thorough study of the tender dossier. The tender dossier refers to the call for tenders together with all of the attached supporting documents, such as the contract and any technical specifications. To avoid surprises, it is worthwhile reading all of these documents carefully and studying all of the details, particularly those that affect pricing.
Your study of the various reports and documents must focus in particular on the features that satisfy the minimum requirements and are subject to scoring. For example, there is no point in stressing environmental values in particular if the quality comparison will only evaluate the finished outcome on the basis of the tender dossier. This is because environmental values will not earn extra points in the competitive tendering, even though they are generally desirable quality factors. A contracting entity may only apply the criteria that it set out in the tender dossier when evaluating the tenders that it subsequently receives. These criteria may not be changed retrospectively, even if some tenderer has offered good additional features.
You should also study the terms and conditions of the contract with care. Established case law basically prohibits any proposal of special contract terms that differ from the tender dossier. The Act on Public Procurement and Concession Contracts also allows a contracting entity only limited leeway for amending a procurement contract during the contract period. This is particularly the case for procurements that exceed the EU threshold values. Only certain amendments prescribed by law are permitted during the contract period.
4. Submitting the tender
After you have completed the foregoing stages and established your willingness and capacity to take part in the competitive tendering, it is time to submit the tender.
You must carefully identify the documents that are required for this purpose, ensuring that you have enough resources to do so.
Use of electronic systems for submitting a tender became mandatory in October 2018 when a procurement exceeds the EU thresholds. Several electronic systems are on the market and used by contracting entities. You should make a particular study of the electronic system when submitting your tender, to make sure that it has been correctly submitted complete with all attachments and dates. This avoids the bitter disappointment of discovering that the hours (or even days or weeks) that you spent in preparing the tender were wasted, simply because you failed to submit the tender correctly.
With all of these stages duly completed and your tender submitted in good order, you may eagerly await the outcome of the competitive tendering process!
Lotta Hiukka and Riitta Voipio
The writers of the blog are legal advisors specialising in public procurement at Finnish Procurement Lawyers Attorneys Ltd.