Public procurement: preparing a public contract

We have assumed that this is a request for links to the standard form contracts which were discussed in Question 1 of the webinar. If helpful, a copy of the CCS Model Services Contract can be found here and a copy of the CCS Public Sector Contract can be found here.

Assuming the authority conducted a procurement process, that the supplier you refer to is the successful bidder and as part of that procurement process a form of contract was issued by the authority, we would suggest that you check the procurement documents to determine whether the supplier proposing an alternative form of contract could result in exclusion. If this is the case (and assuming it was not explicitly stated that this would lead to exclusion), we would suggest responding to the successful bidder to ask for express confirmation that it accepts the form of contract issued by the authority as part of the procurement process (providing a deadline for this) or the authority will withdraw the award decision. If a procurement process was not undertaken (eg, the contract value is below threshold or an exemption applied) and your preference is to use the authority’s terms for the purchase, we would suggest that you ask the supplier to sign the authority’s form of contract which should include an express provision that this represents the entire agreement between the parties to the exclusion of any other terms.

We have assumed that your query relates to a scenario where the authority is calling off from a framework agreement which is managed by another public body. You would not necessarily need to see a full signed copy of the framework agreement in question in this scenario, albeit you may need to review parts of this (eg, the pricing schedules to check that the supplier’s prices align with its framework pricing). The authority should, however, obtain a copy of the form of framework agreement (not necessarily a signed copy) and any associated published guidance to consider its terms and any rules concerning the call-off procedure and form of contract. For example, some framework agreements contain specific rules on the duration of call-off contracts and limitations on price increases. These provisions would need to be checked to ensure that the call-off contract is compliant with the terms of the relevant framework agreement.

We have addressed this issue in Question 5 of the webinar – a recording of which is available above.

It can be challenging to design a transparent scoring methodology for contract amendments. However, the most common mechanism we see is to assess contract mark-ups on the basis of the extent of the risk that is transferred to the authority via the bidder’s markup. For example, the more risk that is transferred to the authority, the lower the score. Similarly, the highest score is typically given where bidders do not propose any amendments. It may also be prudent to include a right for an authority to reject a tender that includes unduly onerous contract amendments.

Assuming bidders have asked for certain changes to the contract via the clarifications process, the authority could, in principle, issue an updated version of the contract document based on the changes requested. Note that this would generally need to be the same form of contract for all bidders in the process (to ensure equal treatment) and the authority should consider carefully whether making those changes could be viewed as bias towards a particular bidder. Depending on the nature of the changes, it may also be necessary to allow all bidders an extension of time to consider the impact of the changes on their bids.

Yes, but in order for this to work as intended we would also recommend that there is a provision within the contract itself which states that the supplier shall deliver the goods/services in accordance with the specification and the supplier’s tender submission (you may then wish to consider which order of precedence applies between these two documents if there is a conflict).

There is no standard format for this. Usually this is a plan developed by bidders that explains how they will implement their social value commitments during the lifetime of the contract. The Social Value Model does, however, contain a list of suggested KPIs that could be used to monitor the supplier’s performance in terms of social value. 

We would need to have further information about the scenario in question to advise here, as this will likely require a modification to the contract. Contract modifications are only permitted where they meet one or more of the grounds set out in Regulation 72 of the Public Contracts Regulations 2015. Do contact us if it would be helpful to provide further advice here.