CONSTITUTION PART 4 CONTRACT PROCEDURE RULES

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1 CONSTITUTION PART 4 CONTRACT PROCEDURE RULES (last revised January 2016) A Brief Guide to the Contract Procedure Rules These Contract Procedure Rules promote good purchasing practice, public accountability and deter fraud and corruption. Following the Rules is your best defence to any allegations against you that a purchase has been made incorrectly or fraudulently. All purchase and disposal procedures must: deliver value for money protect public funds support the Council s corporate and departmental aims and objectives comply with the Council s Procurement Strategy including the Statement of Local Procurement be consistent with the highest standards of integrity ensure fairness and transparency in awarding contracts comply with legal requirements ensure that appropriate documentation is kept which incorporates certain essential terms and conditions In all cases, these Rules may be superseded by the requirements of English legislation and the EU Public Procurement Regime. Compliance with English and EU law is the primary consideration in any contract. The Council has set up a Central Procurement Unit (CPU) which provides specialist advice and guidance and handles all the administration. All proposed spend over 5,000 should be referred to the Unit. There is a document which sets out the split of responsibilities between the CPU and services (Responsibilities between Services and the Central Procurement Unit.) Key points in following the Rules are: Take all necessary legal, financial and professional advice 1

2 Check whether the EU Procurement Regime apples. If it does, you must follow the EU Procedures. In summary, the EU Regime applies to those contracts whose estimated value is more than set amounts. As at 1 January 2014, these are: supplies and services 164,176, works 4,104,394 (excluding VAT). Declare any personal or financial interest in a contract. Remember, corruption is a criminal offence. Refer all contracts above 5,000 to the CPU to give specialist advice including on: Using a framework or partnership contract. This can sometimes save on the time and costs of undertaking a competitive process which can be significant. Going out to competition for one contract in the same or similar areas of spending across the Council, rather than having a number of smaller contracts. Complying with the Statement of Local Procurement. This says that where appropriate when seeking competitive bids for contracts up to 50,000, you should ensure that at least one of the organisations invited to quote is from the Leeds City Region or North Yorkshire. Allow sufficient time for all stages of the procurement process in particular for contractors to prepare submissions and for their subsequent evaluation. Keep bids confidential Ensure that contract terms are set out in writing for all contracts over 10,000 before work begins or the services/supplies are made or ordered. Make sure you contract with the correct legal entity for example that the full and correct registered company name is used. Keep records of dealings with contractors including all questions and answers that arise during the tendering process. During the life of the contract, monitor the performance of the contractor to ensure compliance with the specification and contract terms and conditions. Where appropriate, assess each contract afterwards to see how it met the purchasing need and value for money requirements. The Head of Finance has produced a set of detailed notes to give practical guidance on contract and tendering procedures. In applying these Rules, all employees must follow this guidance as it is good purchasing practice and prevents fraud and corruption taking place. 2

3 Contract Procedure Rules 1. COMPLIANCE WITH THESE RULES AND EXEMPTIONS 1.1 Employees responsible for purchasing or disposal must comply with these Contract Procedure Rules, the Council s Procurement Strategy, the Statement of Local Procurement and relevant Financial Procedure Rules. In addition, employees must comply with all relevant English statutory requirements, EU Treaties and their relevant Directives. Where the Council acts as an agent, nothing in these Contract Procedure Rules shall be taken to authorise any departure from the terms of any agency agreement or from the instructions of the principal. All proposed spending over 5,000 must be referred to the Central Procurement Unit (CPU). Employees are referred to the separate document which explains the role of the CPU and the split of responsibilities between the Unit and Services (Responsibilities between Services and the Central Procurement Unit. 1.2 Employees must also ensure that any agents, consultants or contractual partners acting on the Council s behalf also comply with these Contract Procedure Rules. 1.3 The terms of these Contract Procedure Rules are subject to other Rules of the Council set out in the Constitution - including the Access to Information Rules, the Executive Procedure Rules and the Financial Procedure Rules. 1.4 Exemption from these Rules may only be approved by Cabinet following consideration of a written report from the relevant Chief Officer setting out the special circumstances. SAVE THAT for HIC contracts not exceeding 500,000, the Director of HIC can approve exemptions following consideration by the HIC Board. The CPU should be consulted in all cases where proposed spending is above 5, A record of any exemption made in accordance with Rule 1.4 shall be made and kept in accordance with the Constitution of the Council. 1.6 Where an exemption is necessary because of an unforeseeable emergency involving immediate risks to person, property or serious disruption to Council services, Chief Officers may approve the exemption in consultation with the CPU but they must prepare a report for the next Cabinet Meeting to set out the action taken. 1.7 It shall be left to the discretion of the appropriate Cabinet Member to decide in exceptional cases whether or not these Rules should be complied with for the supply of specialist articles, specialist services or proprietary goods which are obtainable only from one contractor and for which no reasonably satisfactory alternative is available notwithstanding the amount involved. The decision of 3

4 the appropriate Cabinet Member must be recorded in writing in accordance with the Constitution of the Council. 1.8 These Contract Procedure Rules do not apply to contracts of employment for the Council s employees; the engagement of Counsel or the acquisition, disposal or transfer of land. 1.9 No exemptions can be granted where the EU Public Procurement regime applies The use of eprocurement technology does not negate the requirement to comply with these Contract Procedure Rules In order to secure value for money, the Council may enter into collaborative procurement arrangements. Where appropriate before the invitation of tenders or quotations and in particular for contracts of 50,000 or above, in giving advice to services, the CPU should first consider whether it is possible to use a partnership contract or framework agreement for purchasing (see 2.5). The time and costs of undertaking a competitive process can be significant. Where the estimated value of the proposed contract is above the relevant EU financial threshold, the CPU must ensure that the requirements of the EU Procurement Regime have been met by the lead authority. Where the estimated value of a proposed contract is equal to or exceeds 500,000, the Cabinet shall determine whether a partnership contract or framework agreement can be used. Services must consult the CPU in all areas where they are wishing to use a framework agreement or partnership contract Purchases made via a local authority purchasing and distribution consortium are deemed to comply with these Contract Procedure Rules and no exemption is required. However, purchases above the relevant EU financial threshold must be let under the EU Procurement regime, unless the consortium has satisfied this requirement by already letting their contract in accordance with the EU Regime on behalf of the Council and other consortium Members Any contract entered into through collaboration with other local authorities or other public bodies, where a competitive process has been followed that complies with the contract procedure rules of the leading organisation, will be deemed to comply with these Contract Procedure Rules and no exemption is required. However, advice must be sought from the CPU Where competitive quotations or tenders are sought, Officers must comply with the Statement of Local Procurement. This says that for Contracts up to 50,000, where possible at least one of the organisations invited to bid must be located in the Leeds City Region or North Yorkshire. The Statement does not prejudice the duty to obtain value for money in procurement and is not in conflict with the Public Contracts Regulations. 4

5 2. INVITATION OF TENDERS AND QUOTATIONS AND FRAMEWORK AGREEMENTS Where a framework agreement or partnership contract is not to be used, tenders or quotations shall be invited as follows: In determining the value of a particular contract, if appropriate, officers should first check with relevant colleagues from their own and other Departments and through consulting the CPU whether the Council would achieve better value for money if spending on the same or similar areas from across the Council is brought together to form one contract instead of having a number of smaller ones. Where the total value exceeds the amounts specified under the European Procurement Regime, it is likely that the EU Aggregation Rules will apply. If they do, spending MUST be brought together and let as one contract. Officers must consult the CPU where proposed spending is 5,000 or greater. 2.1 Where the estimated value (exclusive of Value Added Tax) of a proposed contract is equal to or exceeds 50,000 tenders shall be invited The appropriate Chief Officer, in consultation with the CPU, must first consider whether a Prior Indicative Notice (PIN) should be placed in the Official Journal of the European Union (OJEU) or the Tender Electronic Daily (TED) The appropriate Chief Officer shall then determine the method of tendering except that in the cases of Single (Rule 5) and Serial (Rule 6) tendering where the contract to be let does not exceed 500,000 in value the appropriate Cabinet Member so decides. In equivalent contracts to be let by the HIC the Director of the HIC can authorise single or serial tendering up to 500,000 subject to prior consultation with the HIC Board of Management. Chief Officers must ensure compliance with the EU Public Procurement Regime and must consult the CPU in all cases where proposed spend is 5,000 or above In all contracts where the estimated value of a proposed contract is equal to or exceeds 500,000 the Cabinet shall determine the method of tendering (including Rule 5 and 6) subject to compliance with the EU Public Procurement Regime. 2.2 Where the estimated value of a proposed contract is less than 50,000 but is equal to, or exceeds, 10,000, the appropriate Chief Officer, in consultation with the CPU, shall determine whether tenders should be invited and, if so, which method of tendering (if any) should be used If Rule 5 or Rule 6 is selected then the appropriate Cabinet Member must approve the use of these methods of tendering except in relation to contracts of this value proposed to be let by the HIC where the Director of the HIC may approve the use of Rule 5 or Rule 6 in prior consultation with the HIC Board of Management. 5

6 2.2.2 In relation to contracts of this value where none of the formal tendering procedures are deemed appropriate, written quotations must be obtained from at least three organisations To comply with the Statement of Local Procurement, where Rules 5 or 6 do not apply, Officers must ensure that where possible, at least one of the organisations invited to bid is located in the Leeds City Region or North Yorkshire. 2.3 Where the estimated value of a proposed contract is less than 10,000 then Financial Procedure Rule 10 applies and must be complied with. This means that written quotations can be obtained from at least 3 organisations but this is not compulsory. Where quotations are invited, Officers must comply with the Statement of Local Procurement. 2.4 Providing clarification of an invitation to tender to potential bidders, whether in writing or by way of a meeting, is permitted. Make sure that the clarification is provided to all potential bidders so that they are treated equally. 2.5 Framework Agreements The term of a Framework Agreement must not exceed four years. An agreement may be entered into with one provider. Where an agreement is concluded with several organisations, there must be at least three in number. Officers must consult the CPU if the intention is to use a Framework Agreement Contracts based on Framework Agreements may be awarded by either: Applying the terms laid down in the Framework Agreement (where such terms are sufficiently precise to cover the particular call-off) without reopening competition, or Where the terms laid down in the Framework Agreement are not precise enough or complete for the particular call-off, by holding a mini competition in accordance with the following procedure: - inviting the organisations within the Framework Agreement that are capable of executing the subject of the contract to submit written tenders in accordance with these Contract Procedures Rules. - fixing a time limit, which is sufficiently long to allow tenders, for each specific contract, to be submitted, taking into account factors such as the complexity of the subject of the contract. 6

7 - awarding each contract to the tenderer who has submitted the best tender on the basis of the Award Criteria set out in the Framework Agreement The CPU must ensure that the Council is entitled to use the Framework Agreement under consideration. The Council must either be specifically mentioned by name or belong to a named grouping (eg district councils in North Yorkshire) in the Framework Agreement documents and in the EU advertisement for the setting up of the Framework Agreement. 3. SELECTIVE TENDERING 3.1 Ad hoc List : Public Notices And Invitations To Tender This Rule shall apply where the appropriate Chief Officer in consultation with the CPU has decided that invitations to tender for a contract are to be made to some or all of those persons who have replied to a public notice For the purpose of this Rule, public notice should be placed in:- (iii) (iv) (v) in at least one local newspaper circulating throughout the District; and where the estimated value of the contract is equal to or exceeds 50,000 in at least one newspaper or journal circulating among persons who undertake such contracts. public notices can be placed on an electronic contract management system if used by the Council in addition to or instead of in newspapers or trade journals. If a notice is placed in the Official Journal of the European Union ( OJEU ) then, at the discretion of the appropriate Chief Officer and subject to compliance with any specific regulations, the notices in and above need not be published. A notice must not be published at national or local level before the OJEU notice is published and it must not at any time contain information additional to that published in the OJEU. the CPU should also place relevant information in the Contracts Register on the Council s website in order to meet the Government s Code of Practice on Data Transparency for Local Authorities. 7

8 3.1.3 The public notice for the purposes of Rule 3.1.2,, (iii) and (iv) above, shall:- (iii) specify in reasonable detail the contract into which the Council wishes to enter; and invite persons interested to apply for permission to tender; and specify a time limit, being not less than 10 working days, within which such applications are to be submitted to the Council. If an OJEU notice is required under 3.1.2(iv) the relevant regulations and timescales must be met After the expiry of the period specified in the public notice invitations to tender for the contract shall be sent to:- (iii) (iv) not less than three of the organisations who applied for permission to tender, selected by the Chief Officer responsible. where fewer than three persons have applied or are considered suitable, those persons which the Chief Officer responsible considers suitable. where the estimated value of the contract is less than 50,000 Officers must comply with the Council s Statement of Local Procurement by inviting an organisation located in the Leeds City Region or North Yorkshire to tender if possible. Where a notice has been required to be published in the OJEU specific regulations apply as to the time limits to allow expressions of interest to be made and as to the selection of organisations invited to tender. The relevant EU Directive and Regulations must then be applied. (Refer to the EU Guidance for Employees) The Chief Officer responsible for a particular contract must ensure that potential tenderers are suitably assessed. The assessment process should establish that the potential tenderers have sound: economic and financial standing technical ability and capacity 8

9 to fulfil the Council s requirement. In respect of the economic and financial assessment of potential tenderers, the relevant Chief Officer must liaise with and seek the approval of the Director of Corporate Affairs. N.B The assessment of a bidder s financial and technical standing takes place at the first stage in order to determine those suitable to be invited to tender. The capacity and capability of contractors should not therefore form part of the later stage at tender evaluation which is about assessing the service, product and/or solution proposed by the tenderer. 3.2 Standing Approved List : Limited Invitations to Tender This Rule shall apply where the appropriate Chief Officer in consultation with the CPU has decided that invitations to bid for a contract are to be limited to those persons whose names are included in a list compiled and maintained for that purpose. Standing Approval Lists cannot be used where the EU Procurement Regime applies The said list shall: (iii) (iii) be compiled and maintained by the appropriate Chief Officer(s); contain the names of all persons who wish to be included and who are approved by the appropriate Chief Officer(s); indicate in respect of a person whose name is so included, the categories and value of contracts in respect of which approval has been given. No person may be entered on a Standing Approved List until there has been adequate investigation into both their financial and their technical ability to perform the contract. Standing Lists can be compiled using the Constructionline register of local and national prequalified construction and construction related contractors and consultants. Before they can be registered, firms have to satisfy Constructionline s own pre-qualification commercial, financial and technical criteria. Registered firms are then reassessed each year on financial standing and on a rolling basis for technical competence. Where the estimated value of a contract is equal to or exceeds 500,000, potential tenderers must also be the subject of specific approval by the Head of Finance from 9

10 a financial vetting viewpoint, after consideration of a report from a specialist finance organisation approved by the Head of Finance, on the potential tenderer s economic and financial standing The lists shall be reviewed at least annually taking into account updated information from Constructionline, internal and external feedback on performance, overall workload, litigation or financial matters. The appropriate Chief Officer may approve the addition of persons to the Lists provided they have been subject to technical and financial vetting in accordance with Contract Procedure Rule Invitations to tender for a contract shall be sent to:- (iii) not less than three of those persons selected by the appropriate Chief Officer from the list of those approved for a contract of the relevant category and value; or where fewer than three persons are approved for a contract of the relevant category and value, all those persons on the list. for contracts up to 50,000 Officers must comply with the Statement of Local Procurement which says that where possible, at least one of the organisations invited to bid must be located in the Leeds City Region or North Yorkshire In exceptional cases and in consultation with the Head of Finance the appropriate Chief Officer may invite tenders in accordance with Rule from persons on the Standing Approved Lists maintained by other organisations approved by the Head of Finance In inviting applications for inclusion on a list of tenderers or in selecting persons from whom tenders are to be invited the appropriate Chief Officer shall take all appropriate steps to ensure fair competition by using an appropriate and equitable method of rotation for selecting tenderers All Standing Approved Lists shall be maintained in an open, fair and transparent manner and be open to public inspection The maximum duration of a Standing Approval List is three years. Lists must then be renewed by placing advertisements seeking expressions of interest to join the new List. Applicants must then be vetted according to their financial and technical capacity according to Rules and/or above. 10

11 4. OPEN TENDERING 4.1 This Rule shall apply where the appropriate Chief Officer in consultation with the CPU has decided that tenders for a contract are to be obtained by open competition. 4.2 At least 10 days public notice shall be given in one or more local newspapers and also, where the value of the contract is equal to or exceeds 50,000, in one or more national newspapers or journals circulating among such persons as undertake such contracts. The notice shall express the nature and purpose of the contract, state where further details may be obtained, invite tenders for its execution and state the place, last date and time when tenders will be received. 4.3 Public notices can be placed on an electronic contract management system if used by the Council, instead of placing advertisement in newspapers and/or trade journals. 4.4 If a notice is required to be placed in the OJEU then the provisos in Rule and will apply. 5. SINGLE TENDERING 5.1 This Rule shall apply in exceptional circumstances to contracts to be let not exceeding 500,000 in estimated value where the appropriate Cabinet Member has decided in the best interests of the Council that a tender be invited from a single Contractor selected by the appropriate Chief Officer or negotiated with a Contractor already engaged by the Council. The Director of HIC shall in equivalent circumstances in relation to contracts not exceeding 500,000 in estimated value may decide that the single tendering process shall be used in the best interests of the Council, subject to prior consultation with the HIC Management Board. 5.2 In all contracts equal to or exceeding 500,000 in estimated value the Cabinet shall decide whether the single tendering process shall be used in the best interests of the Council. 5.3 Services must consult the CPU if Single Tendering is proposed. 5.4 Single Tendering is not available if the EU Procurement Regime applies. 6. SERIAL TENDERING 6.1 This Rule shall apply in exceptional circumstances to contracts to be let not exceeding 500,000 in estimated value where the appropriate Cabinet Member has decided that tenders for a contract, where that contract forms part of a serial programme, are to be obtained by negotiation with a particular Contractor in the best interests of the 11

12 Council. The Director of HIC in relation to contracts not exceeding 500,000 in estimated value may decide that the serial tendering process shall be used in the best interests of the Council, subject to prior consultation with the HIC Board of Management. 6.2 In all contracts equal to or exceeding 500,000 in estimated value the Cabinet shall decide that the serial tendering process shall apply. 6.3 The basis of the said negotiation shall be the rates and prices contained in the initial contract awarded competitively following an invitation to tender in accordance with Rules 3 or 4 and the negotiations must be recorded in writing by the appropriate Chief Officer. 6.4 Services must consult the CPU if Serial Tendering is proposed. 6.5 Serial Tendering is not available if the EU Procurement Regime applies. 7. SUBMISSION OF TENDERS AND QUOTATIONS 7.1 Where in pursuance of these Rules an invitation to tender or quote is to be received in paper format, other than under Rule 2.3, every such invitation shall state that no tender or quotation will be considered unless it is enclosed in a sealed envelope provided by the Council which shall bear the word Tender or Quotation as appropriate - followed by a brief description of the subject to which it relates but having no other name, address, postal franking or other mark indicating the identity of the sender. 7.2 All tenders and quotations should be returned to the Council s Procurement Manager who is then responsible for their safe-keeping until the appointed time of opening. 7.3 No tender or quotation received after the time and date specified in the invitation shall be considered unless there is clear evidence that it was posted by first class post at least the day before tenders or quotations were due to be received. 7.4 The Council s Procurement Manager shall make arrangements to: suitably record the date and precise time of the receipt of tenders and quotations. adequately protect tenders and quotations immediately on receipt to guard against amendment of their contents. 12

13 7.5 (iii) Tenders or quotations can be received electronically by an electronic contract management system, should one be used by the Council. The system must provide for tenders and quotations to be received by the Council s Procurement Manager and to be stored securely, confidentially and unopened until the prescribed date and time of opening. Tenders and quotations can be received by but need to be received by a generic address where they will be retained securely and confidentially until the set date and time for receipt has passed. Tenders or quotations received by fax are not acceptable and must be rejected. 7.6 If money is to be spent by the Council, every invitation to tender or quote should state that this Council does not bind itself to accept the lowest tender or quotation or indeed any bid received. 8. OPENING OF TENDERS AND QUOTATIONS Tenders and Quotations Received in Paper Format 8.1 The Council s Procurement Manager shall make arrangements for the time and place for opening tenders and quotations received. 8.2 The appropriate Cabinet Member shall be notified in advance of the time and place of opening of tenders received in accordance with Rules 3 or 4 and may be present on that occasion. 8.3 Tenders received under Rules 3, 4, 5 or 6 or quotations received under Rule shall be opened on the same occasion when the period for their submission has ended in the presence of:- the Council s Procurement Manager or other designated Officer the appropriate service Chief Officer or an officer of the Council designated by that Chief Officer 8.4 All tenders or quotations so received shall be recorded in detail, in writing, and that record shall be certified by the signature of all the persons present at the opening. A copy of this record shall be sent to the Internal Audit Manager. 8.5 No persons other than the designated Cabinet Member and officers shall be present at the opening of tenders and/or quotations unless, in exceptional circumstances, approval is given by the Head of Legal and Governance. The Head of Legal and Governance may require such 13

14 persons to sign a confidentiality agreement. 8.6 Tenders or Quotations Received Electronically Tenders or quotations received electronically through an electronic contract management system if used by the Council shall be opened on the system by the Procurement Manager, once the time and date for receipt has passed. All such tenders or quotations received shall be recorded in detail in accordance with Contract Procedure Rule 8.4. The Procurement Manager will then make arrangements for the relevant service Chief Officer or Officer designated by that Chief Officer, to have access to the tenders or quotations received according to the functionality of the system used. Tenders or quotations received by to the generic address shall be opened once the due date and time for receipt has passed. All such tenders or quotations received shall be recorded in detail in accordance with Contract Procedure Rule 8.4. Arrangements will then be made for the relevant service Chief Officer or Officer designated by that Chief Officer, to have access to the tenders or quotations received. 9. ACCEPTANCE OF TENDERS AND QUOTATIONS 9.1 The appropriate Chief Officer shall have the authority to accept the verified lowest tender or quotation, if payment is to be made by the Council, or the verified highest tender or quotation if payment is to be received by the Council. 9.2 In respect of accepting the most economically advantageous tender or quotation (ie where the evaluation criteria includes quality factors in addition to price) the following Rules apply Where the estimated value of the contract does not exceed 10,000, the appropriate Chief Officer shall have the authority to accept such a tender or quotation Where the estimated value of a contract exceeds 10,000 but does not exceed 50,000 the appropriate Chief Officer shall have the authority to accept the most economically advantageous tender or quotation provided that: i) the selection of the successful tender is made in accordance with pre-determined evaluation criteria recorded in writing and such criteria are the same as those which were advertised and made known to tenderers prior to tendering; and ii) the reasons for accepting other than the verified lowest 14

15 tender or quotation are recorded in writing Where the estimated value of a contract exceeds 50,000 but does not exceed 150,000, the appropriate Chief Officer shall have the authority to accept the most economically advantageous tender provided that, in addition to the conditions set out at and 9.2.2, he/she consults the Head of Finance Where the estimated value of a contract exceeds 150,000, but does not exceed 500,000, acceptance of the most economically advantageous tender must be subject to the approval of the appropriate Cabinet Member, in addition to the conditions set out at 9.2.2, and The Director of the HIC, after consultation with the HIC Management Board shall have authority to accept the most economically advantageous tender or quotation in all contracts not exceeding 500,000 in value relating to the HIC, subject to satisfying the conditions set out in and In all cases, the approval of Cabinet is required for the acceptance of the most economically advantageous tender where the estimated value exceeds 500, Acceptance must be subject to:- (iii) (iv) (v) (vi) (vi) satisfactory financial and technical capability and capacity checks, being made at the earlier tenderer assessment stage; checking of the tender or quotation and related documents; provision and execution of a bond, parent company guarantee and/or other security where required; appropriate and sufficient insurance cover being obtained where required which must be verified before works commence; completion of a formal contract document where required; fulfilment of any other requirements of the Council s Financial Procedure Rules. the observance of any prescribed standstill period under the EU regulations. 9.4 Immediately following the opening procedures laid down by these Rules, tender(s) or quotation(s) as appropriate and all related documents should be checked by the appropriate Chief Officer or other person appointed to act on the Council s behalf in relation to contracts 15

16 (see Rule 1.2). Apart from the de-briefing required or permitted under these Contract Procedure Rules, the confidentiality of quotations and tenders, together with the identity of bidders, must be preserved at all times during the procurement process. Discussion with tenderers after the submission of a tender and before the award of a contract with a view to obtaining adjustments in price, delivery or content is not permitted EXCEPT in the exceptional circumstances of post tender negotiations (see 9.7 to 9.11 below). 9.5 If any arithmetical error or other discrepancy is found which would affect the tender in an otherwise successful tender, the tenderer should be given details of the error or discrepancy and afforded an opportunity of confirming, correcting or withdrawing his offer (subject to the conditions of tender and/or contract in each instance) but no additional information about the other tenderers or the tendering process should be given. 9.6 Where the verified lowest tender is to be accepted, if the error or discrepancy is of such consequence that the tender or quotation cannot be confirmed as the lowest or if the tenderer withdraws, then the next lowest tender will be checked, examined and dealt with in the same way. Post Tender Negotiations 9.7 Where the acceptance of a tender is likely to result in the approved budget being exceeded, or where a tenderer indicates strictly in accordance with the Conditions of Tender an alternative to an item specified and as a result there is potential cost saving to the Council the appropriate Chief Officer may decide in these exceptional circumstances and in consultation with the Head of Finance that posttender negotiations are to be conducted with the preferred tenderer. 9.8 The basis of the negotiation shall be the rates and prices included in the preferred tender received following an invitation to tender in accordance with Rules 3 or 4. Two or more officers including an internal auditor if deemed appropriate by the Head of Finance should be present when post tender negotiations are carried out and a written report must be submitted to the Head of Finance. 9.9 Officers appointed to carry-out post tender negotiations should ensure that there are recorded minutes of all negotiation meetings and that both parties agree actions in writing. Post-tender negotiations must not be conducted by telephone Post tender negotiations are not allowable where the EU Procurement Regime applies. 16

17 9.11 Where post-tender negotiation results in a fundamental change to the specification or contract conditions, the contract must not be awarded but re-tendered. Award of Contracts and Debriefing Bidders 9.12 For contracts whose estimated value exceeds 50,000, following the evaluation of bids and the acceptance of the successful tender, the CPU will notify all tenderers simultaneously by an award decision notice or equivalent about the characteristics and relative advantages of the successful bidder. The following information shall be given:- The criteria for the award of the Contract The reasons for the decision including the relative advantages of the successful tenderer The evaluation score of the winning tenderer and the score of the tenderer receiving the decision notice or equivalent Any reasons for the decision that the tenderer did not meet the technical requirement The name of the winning tenderer When any standstill period will end 9.13 If a tenderer requests in writing the reasons for an award decision, these must be given in writing within fifteen days of receiving the request. If requested, the information set out in 9.12 may also be given to persons who were de-selected on a pre-tender short-listing process Where the EU Procurement Regime applies, unsuccessful tenderers must be provided with a standstill period from when they were notified that they were not selected in which to challenge a decision to award a contract to the successful tenderer before the award can in fact be made. The minimum duration of the standstill period depends on how the award decision notices were sent minimum 10 calendar days if notices are sent electronically; minimum 15 calendar days if notices are sent by other means (eg by post). No contract can be entered into during the standstill period. If a decision is challenged by an unsuccessful tenderer, advice should be sought immediately from the CPU Contract Award Notices must also be published where the EU Procurement Regime applies (Refer to the document EU Guidance for Employees ) 17

18 10. NOMINATED SUB-CONTRACTORS AND SUPPLIERS 10.1 Where a sub-contractor or supplier is to be nominated to a main contractor and the estimated amount of the sub contract exceeds 10,000 then, unless the appropriate Chief Officer is of the opinion in respect of any particular nomination that it is not reasonably practicable to obtain competitive tenders or quotations, tenders or quotations for nominated sub-contracts shall be invited and dealt with in accordance with these Rules as if they were for a contract directly with the Council. 11. CONTRACT CONDITIONS 11.1 Every contract which exceeds 10,000 in value shall be evidenced in writing, signed in accordance with Financial Procedure Rules, and shall specify: (iii) (iv) (v) the goods, materials or services to be supplied and/or the work to be executed; and the obligations to be performed by the contractor, and the payment to be made or the way in which payment is to be calculated together with a statement of any discount or other deduction; and the period(s) within which the contract is to be performed; and the damages, if any are to be specified, payable for noncompliance with, or non-performance of, the contract the provisions for the Council to terminate the contract In addition every contract over 50,000 must also state clearly as a minimum: any warranties as to quality, taking reasonable skill and care that the contractor may not assign or sub-contract without prior written consent any insurance requirements health and safety requirements data protection requirements, if relevant any equality, diversity and anti-discrimination requirements sustainability and environmental requirements, if relevant 18

19 Freedom of Information Act requirements Where Agents are used to let contracts, that Agents must comply with the Council s Contract Procedure Rules A right of access to relevant documentation and records of the contractor for monitoring and audit purposes if relevant. The advice of the Chief Solicitor must be sought where it is proposed to use the contractor s own terms and conditions In addition, where a contract is equal to or exceeds 50,000 in value it shall: (iii) be incorporated into a formal written document and, if considered necessary by the Chief Solicitor, be signed under seal by all parties, or; be signed (if not to be sealed) by at least two duly authorised Officers of the Council; if considered necessary by the Chief Solicitor in consultation with the appropriate Chief Officer, provide for the payment of liquidated and ascertained damages by the contractor where he fails to complete the contract within the time specified. The officer responsible for securing signatures to a contract must ensure that the person signing for the other contracting party has the authority to bind it. The requirements of sub-clauses and above apply equally to contracts for the acquisition and sale of land but only in respect of the relevant document, ie transfer or lease which affects the actual conveyance of the said land The Council shall take sufficient security by way of a performance bond, parent company guarantee or through other means for the due performance of any contract, which exceeds 100,000 unless the Solicitor to the Council in consultation with the appropriate Chief Officer considers it to be unnecessary. In no circumstances shall contracts for supplies, services or works commence unless and until any required performance bond, parent company guarantee or other security has been executed. In addition, performance bonds or parent company guarantees are not required where a measured term contract or sectional completion supplements are to be used, provided valuations of individual stages or pieces of work are less than 50, Where an appropriate British Standard implementing a European Standard (BSEN) or a European Technical Approval or a British Standard Code of Practice issued by the British Standards Institution is current at the date of the tender, every contract shall require that all 19

20 goods and materials used or supplied, and all the workmanship, shall be at least to the standard required by the appropriate British/European Standards Specification or Code of Practice or any revised or draft standards instituting an equivalent or higher specification There shall be inserted in every written contract a clause providing that if the contractor, any employee of the contractor, or anyone acting on the contractor s behalf in relation to the contract or any other contract with the Council does or has done any act: (a) (b) (c) (d) which is an offence under the Bribery Act 2010, or which is an offence under the Prevention of Corruption Acts , or which amounts to the giving of a fee or reward the receipt of which is an offence under Section 117 of the Local Government Act 1972, or which commits any fraud, whether alone or in conjunction with Council Members, contractors or employees. the Council will be entitled to terminate the contract with immediate effect and recover from the contractor any additional expense incurred by such termination In letting contracts, officers must comply with the Code of Conduct for Employees and the Code of Practice on Gifts and Hospitality. In particular, officers must not invite or accept any gift or reward in respect of the award or performance of any contract. It will be for the officer to prove that anything received was not done so corruptly. High standards of conduct are obligatory. Corrupt behaviour will lead to disciplinary proceedings, which could result in dismissal. It is also a criminal offence under the statutes listed above in 11.5, in particular the Bribery Act. 12. DECLARATION OF INTERESTS 12.1 If it comes to the knowledge of a Member or an employee of the Council that a contract in which he or she has a personal or pecuniary interest has been or is proposed to be entered into by the Council, he or she shall immediately give written notice to the Head of Legal and Governance (Members) or his/her Chief Officer (employees) A shareholding in a body not exceeding a total nominal value of 1,000 or 1% of the nominal value of the issued share capital (whichever is the less) is not a pecuniary interest for the purposes of this Contract Procedure Rule. 20

21 12.3 The Head of Legal and Governance shall maintain a record of all declarations of interests notified by Members. Each Chief Officer shall maintain a record of all declarations of interest notified by employees in their respective departments. The Head of Legal and Governance shall ensure that the attention of all Members is drawn to the Members Code of Conduct. 13. CONTRACT MANAGEMENT 13.1 Where proposed contracts exceed 50,000, the CPU should complete entries in the Council s Contracts Register in accordance with the set procedures included in the Tendering Procedures Manual Where relevant and appropriate contracts must be managed according to the Council s Project Management Code of Practice. In particular, during the life of a contract, officers responsible for particular contract must monitor in respect of: performance compliance with the specification and contract cost value for money user satisfaction risk management any breaches of the Contract conditions For all contracts whose estimated value exceeds 100,000, service officers responsible for a contract shall: maintain a risk register during the contract period undertake appropriate risk assessments and for identified risks ensure mitigating actions and/or contingency measures are in place Where considered appropriate and proportionate, the actions listed above may be followed for contracts of less than `100, Where the Total Value of the contract exceeds 150,000 the service officer responsible for a particular contract must make a written report to the relevant Portfolio holder evaluating the extent to which the purchasing need and the contract objectives were met by the contract. This should be done normally when the contract is completed. Where the contract is to be re-let, a provisional report should also be available early enough to inform the approach to re-letting of the subsequent contract. 21

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