As we pass the one-year anniversary of the Public Contract Regulations 2015 (PCR 2015), any student of the legislation may still be overwhelmed with the changes and their implications upon the bidding and tendering community. However, for some companies who have been excluded from competing in parts of this lucrative marketplace, one significant change could have been overlooked.
If your company has any previous conviction in relation to environmental, social and labour legislation or has been shown to be guilty of some type of professional misconduct, a Contracting Authority has always been able to exclude you for up to three years from the date of the conviction.
However, a prior civil or criminal conviction for a company is now no longer calamitous for Public Sector tendering opportunities. Pre-Qualification Questionnaires (PQQs) usually demand that the bid team discloses a company’s conviction record. This is normally a mandatory “pass / fail” question which can mean that your company decides not to bid on the basis of some, perhaps trivial, incident long past.
However, now PCR 2015 allows such companies to answer positively to such “pass / fail” previous conviction questions by providing information about the company’s actions for rehabilitation and the steps taken since the conviction, through a “self-cleaning” process. This means that companies with prior convictions can bid for public tenders, safe in the knowledge that Contracting Authorities must weigh the company’s response in a fair and transparent manner. Then they must allow them access to the remainder of the competition unless they have demonstrably strong reasons not to do so.
How does self-cleaning for public contract regulations work?
If you have had a problem in the past and you can show you have been properly rehabilitated, the Contracting Authority must consider your bid further. So, our approach is that you should still bid, but you must also include the evidence showing that you have:
- Paid compensation in respect of any damage caused by an incident or otherwise put matters right.
- Actively collaborated with all the investigating agencies (such as the police, Health and Safety Executive, or the Environment Agency), fully clarified the facts behind an incident and what led to the problem.
- Taken clear, significant and relevant technical, personnel and organisational measures to prevent such an incident from ever happening again.
Give lots of information and show the actual actions taken, with their results. Make it clear that you are contrite and the circumstances will not and cannot ever reoccur. Then, get on with the rest of your bid.
Of course, the Contracting Authority can still use its discretion when assessing whether or not to give further consideration to your bid. However, if they believe that your response is unsatisfactory and does not demonstrate sufficient reliability, it must give you a full statement of the reasons explaining why. At a minimum, this will allow you to improve your tender qualification analysis for future opportunities. In addition, it will allow you to put the steps in place so that future exclusion cannot happen!
Author: Andy Haigh PPM APMP Director and Public Sector Bid Consultant, Sixfold International Ltd
Of course, the exclusion may not be just. If you encounter any of these situations or wish to talk through your options before your next bid please do get in touch on 020 8158 3952 or firstname.lastname@example.org
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