Competitive Flexible Procedure

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The proposed change from five current procurement procedures to one all-encompassing Competitive Flexible Procedure raises many questions for suppliers.

Indeed, the whole concept behind this new procedure appears to be flexibility, giving buyers endless variables in how to apply it, which will potentially confuse suppliers.

The current Regulations offer a range of options, depending on the buyer’s need, from Open and Restricted, where the buyer knows, to a point, exactly what they require; to Competitive Procedure with Negotiation and Competitive Dialogue, if the buyer wants the ability to have a degree of negotiation and dialogue around the potential solution; to Innovation Partnership, where a genuinely innovative solution is required.

The new procedure. however, is designed to address all and any of those options, but without any rigid structure. While this allows buyers to design a process to suit their need, it may cause confusion for bidders because of lack of clarity about what the actual structure of the procurement is.

And, therein lies the problem – just what structure could buyers choose when tendering?

In the early days, I would expect many buyers to continue to follow the current procurement structures when selecting the Competitive Flexible Procedure.

Doing what they already know provides a safety net, particularly in a market where challenge is commonplace.

However, should the requirement be complex, then just what options might the buyer choose?

The procedure allows for negotiation, that much is clear, and the use of negotiation isn’t uncommon in the current procedures.

In the Competitive Flexible Procedure, however, negotiation could be used pre-tender, during the tender stage or post-tender, or even in a combination of those options.

Whilst pre-tender negotiation may seem confusing, in reality it’s a process that many buyers and suppliers already undertake, to a degree, through pre-market engagement or at the Invitation to Participate in Dialogue stage of a Competitive Dialogue.

Pre-tender negotiation allows the buyer to condition the market to their expected outcomes and to identify critical success factors and minimum requirements that the bidders must comply with.

Again, negotiation during the tender may seem odd to some, but it mirrors the dialogue stage in Competitive Dialogue and the negotiation stage in Competitive Procedure with Negotiation.

The ability to discuss issues and clarify aspects of the bids at this stage can prove extremely useful both to buyers and suppliers and is a proven route to achieving innovative outcomes.

Post-tender negotiation isn’t new, indeed many contracting authorities have practised it in procurements even when they shouldn’t have!

The ability to have final clarifications around the proposed solution can be exceptionally useful in ensuring that the successful bidder fully understands their role and responsibility prior to contract commencement and the buyer achieves their goal of value for money.

So what’s the issue then?

Whilst the use of negotiation already exists in the current procedures, many buyers and suppliers are unskilled in its use and undertaking any form of negotiation without the appropriate skills could end up being costly to both parties, whether through a failed procurement, through challenge by a supplier or simply in terms of the time spent on the tender exercise when the negotiation stage was an unnecessary element that delivered no benefit.

When encountering the new Competitive Flexible Procedure, suppliers will need to be wary of buyers who overcomplicate procurements because they have a new procedure to play with.


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