overview of the ojeu pacs procurement process · 1/1/2012 · project manager - the project...

PURPLE FISH CONSULTANCY

Prepared by Purple Fish Consultancy

Overview of the OJEU PACS Procurement

Process

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Copyright November 2012 Purple Fish Consultancy Ltd



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PACS OJEU Procurement Process

Contents

Introduction ................................................................................................................................................. 3 What is the OJEU ....................................................................................................................................... 3 EC Procurement Thresholds ....................................................................................................................... 4 Transparency in Government Procurement and Contracting ...................................................................... 4 OJEU Procurement Models ........................................................................................................................ 4 Trust Resource and Support Requirements ................................................................................................ 5 Stakeholders............................................................................................................................................... 6 Preparation / Submission of the OJEU Advertisement ............................................................................... 6 Pre-Qualification Questionnaire (PQQ) ....................................................................................................... 7 Pre-Qualification Evaluation ........................................................................................................................ 7 PQQ Results............................................................................................................................................... 8 Invitation to Tender or Competive Dialogue? .............................................................................................. 8 Invitation to Tender (ITT) ............................................................................................................................ 8 When is a Competitive Dialogue appropriate? ............................................................................................ 9 Invitation to Participate in a Competitive Dialogue (IPCD)......................................................................... 10 Competitive Dialogue Phases – IPCD – evaluation ................................................................................... 11 Outcome of IPCD ..................................................................................................................................... 11 Competitive Dialogue Phases – IPDD ...................................................................................................... 11 Competitive Dialogue Phases – IPDD – evaluation................................................................................... 11 Best and Final Offer and Scoring (BAFO .................................................................................................. 12 Preferred Bidder ....................................................................................................................................... 12



Introduction Any NHS Trust that would like to commence the OJEU process for the procurement of replacement PACS, VNA Radiology and Cardiology information system. The EC Public Procurement Directives require contracting authorities (the public sector) to provide details of procurements in a prescribed format. This document from Purple Fish Consultancy (PFCL) provides a high level overview of OJEU requirements and information on current procurement methods and processes. We are able to assist in this process as we have recent experience of working with Trusts working through to contact in a timely manner.

What is the OJEU OJEC stands for the Official Journal of the European Community (OJEC is now recognised as OJEU - the Official Journal of the European Union). This is the publication in which all tenders from the public sector which are valued above a certain financial threshold according to EU legislation must be published.

The legislation covers organisations and projects that receive public money. Organisations such as Local Authorities, NHS Trusts, MOD, Central Government Departments and Educational Establishments are all covered by the legislation.

The OJEU superseded the earlier Official Journal of the European Community (OJEC) with the establishment of the European Union.

Around 2500 new notices are advertised every week - these include invitations to tender, prior information notices, qualification systems and contract award notices. Purchasing Authorities can use the eProcurement portal, myTenders to publish OJEU and lower value tenders.

The Official Journal comprises three series:

The L Series contains EU legislation including regulations, directives, decisions, recommendations and opinions.

The C Series contains EU information and notices including the judgments of the European Courts, calls for expressions of interest for EU programmes and projects; public contracts for food aid; etc.

The supplementary S series contain invitations to tender which can be found at Tenders Direct

Supplement S contains invitations to tender for Contracts for works, supplies and services from public sector organizations in all EU Member States;.

All three series of the OJEU are published every working day (5 days a week). Approximately 160,000 invitations to tender are published each year, of which more than 14,000 are from the UK or Ireland.

http://www.mytenders.org/?source=OJEC

http://eur-lex.europa.eu/JOIndex.do

http://eur-lex.europa.eu/JOIndex.do

http://www.tendersdirect.co.uk/?source=OJEC&lgid=OJEC



EC Procurement Thresholds

The European public contracts directive (2004/18/EC) applies to public authorities including, amongst others, government departments, local authorities and NHS Authorities and Trusts.

The directive sets out detailed procedures for the award of contracts whose value equals or exceeds specific thresholds. Details of the thresholds, applying from 1st January 2012 are given below. Thresholds are net of VAT.

PUBLIC CONTRACTS REGULATIONS 2006 - FROM 1 JANUARY 2012

SUPPLIES SERVICES WORKS

Entities listed in Schedule 11 £113,057

(€130,000) £113,057

2

(€130,000) £4,348,350

3

(€5,000,000)

Other public sector contracting authorities £173,934 (€200,000)

£173,934 (€200,000)

£4,348,3503

(€5,000,000)

Indicative Notices £652,253 (€750,000)

£652,253 (€750,000)

£4,348,350 (€5,000,000)

Small lots £69,574 (€80,000)

£69,574 (€80,000)

£869,670 (€1,000,000)

1 Schedule 1 of the Public Contracts Regulations 2006 lists central government bodies subject to the World Trade

Organisation's (WTO) Government Procurement Agreement (GPA). These thresholds will also apply to any successor bodies.

Transparency in Government Procurement and Contracting The government has set out the need to be more transparent across its operations. Further information can be obtained on the Business Link Website.

OJEU Procurement Models

Open Procurement is where all interested may respond to the advertisement in the OJEU by tendering for the contract. Any interested party is permitted to tender and those that respond to the notice will receive full information in relation to the proposed contract.

Restricted Procurement is where a selection is made of respondents to the OJEU advert and only they are invited to submit a tender for the contract. This allows purchasers to avoid having to deal with an overwhelming large number of tenders. Tenders are selected from those who respond to the OJEU Notice. Only those that are selected are invited to submit a tender and negotiation is not allowed.

http://www.businesslink.gov.uk/bdotg/action/layer?r.l1=1073861169&r.l2=1086363748&r.s=tl&topicId=1086319968



Competitive dialogue procedure, following an OJEU Contract Notice and a selection process, the authority then enters into dialogue with potential bidders, to develop one or more suitable solutions for its requirements and on which chosen bidders will be invited to tender Negotiated procedure, under which a purchaser may select one or more potential bidders with whom to negotiate the terms of the contract. However, the European Commission expects and is encouraging the use of competitive dialogue rather than the negotiated procedure. An advertisement in the OJEU is usually required but, in certain circumstances, described in the Regulations, the contract does not have to be advertised in the OJEU. An example is when, for technical or artistic reasons or because of the protection of exclusive rights, the contract can only be carried out by a particular bidder. NB: A contract will have to be advertised in the OJEU for the PACS procurement process

The high level process flow for the Restricted Procedure is as follows;

Trust Resource and Support Requirements The Procurement process will require:

Support of the Trust procurement team

Access to a portal to publish and manage the tender documents

Sufficient suitably skilled resources (Suggest use of external consultancy)

Resource for setting up of a Project Board and Team

Setting up of an Evaluation Team may include

Commercial Team Possible Site Visits Team Clinical Team

Drafting OJEU advertisement

Final Tenders

Tender Stage

Qualification & Selection

Contract Award



Technical team

Stakeholders

A stakeholder is generally identified as someone who has an interest in whether or not the project has a successful outcome. The process of identifying stakeholders is both necessary and enlightening, and will throw up some obvious and some not so obvious candidates. The following list, though not exhaustive, includes most of the usual suspects.

Project owner - the person or group within the Trust who has commissioned the project and will take ownership of the deliverables.

End users - the individuals who will operate or use the product and services that will result from the

completion of the project.

Senior management - those members of the senior management team within the Trust that will directly

or indirectly be involved in overseeing project execution and evaluation the project's outcome.

Project champion - a prominent figure within the organisation who actively supports the project.

Project manager - the project manager will lead the project team through the process of carrying out

the work required to achieve the project's objectives.

Project team - the individuals tasked with carrying out the work activities required to achieve the

project's objectives.

Functional managers - the managers of the various functions within the organisation that will be

required to provide resources, or that will have an input to or take output from the project.

Regulatory bodies - government organisations or standards bodies whose function is to ensure that

deliverables are produced in compliance with legal requirements or industry standards.

Preparation / Submission of the OJEU Advertisement The Contract Notice (OJEU advert) should be drafted with help from the Trust procurement team together with input from the project team, include the clinical/business users and should be signed off by the Senior Responsible Owner. The OJEU notice is a very important document and defines the scope of the project/programme

Try and keep options open on:

Who to include as organisations

What you are looking for

Breaking into lots / multiple suppliers

You can ask some questions at this stage to rule out suppliers (legal and financial) Common Procurement Vocabulary (CPV) should clearly link to the requirement and the period of contract should include all options and extensions required. Submission using the European standard forms and via the electronic systems will allow the timescales to be reduced. Where reduced timescales are being sought for electronic submission and receipt of tender documentation, the Pre-Qualification Questionnaire and Information on subject matter of the contract must be available to download from the website at the same time of publication of the contract notice.



The selection criteria – i.e. the basis for short listing and the basis for the awarding of the contract (for example – Most Economically Advantageous Tender), must also be included in the Contract Notice or the tender documents.

Pre-Qualification Questionnaire (PQQ) PQQs are used during a restricted procedure. This phase is aimed at selecting the most appropriate organisations that should be invited to Tender. The PQQ questionnaire forms the basis of this phase of the process. An explanation of the Supplier Selection Process (evaluation model) must be agreed before a PQQ is issued. At this stage a scoring matrix (criteria and weightings) should be created and aligned to the PQQ document as subsequent supplier scoring must be conducted against clear, objective and defensible criteria, established in advance and related to the subject matter of the contract. The Trust must also set out clearly:

The timetable

All details on what will be rejected or disqualified at this stage

Statement that costs are at the suppliers’ risk The Trust may limit the number of bidders and should indicate in the OJEU advert the criteria or rules that apply to the pre-qualification process. The number invited to participate in the PQQ submission needs to be sufficient for genuine competition. The PQQ needs therefore to be built around what The Trust are trying to achieve and are able to manage. The aim is to reduce the number of candidates to a manageable number – can suggest how many in the OJEU notice Selection Criteria for creating a short list of supplier should be made on the basis of looking at the company's capacity, not how they propose to meet the contract. It is not appropriate to consider matters relating to the expected nature of the contract at this stage or to include an assessment of the suppliers potential solutions. It is an evaluation of capability and review of potential supplier’s track record of delivery. It can also include an assessment of the provider’s professional qualifications and who would be responsible for providing the services or carrying out the work under the contract. Supplier appraisal must be conducted against clear, objective and defensible criteria, established in advance and related to the subject matter of the contract. The criteria must be stated in the Contract Notice. Purchasers must also set out clearly:

The timetable

All details on what will be rejected or disqualified at this stage

Statement that costs are at the suppliers’ risk

Pre-Qualification Evaluation The only selection criteria that can apply at Pre-Qualification Stage are economic and financial standing, technical or professional ability and failing to meet Regulation 23 of the EU Procurement Regulations The Trust evaluation team must have the necessary skills to assess the supplier responses from a technical, clinical and business perspective. Financial accounts should be assessed in order to ascertain the economic and financial standing of those who have expressed an interest. At this stage a scoring matrix (criteria and weightings) should be used for evaluating the PQQ document.



The following factors should be considered during this phase:

Solvency/previous conduct – e.g. has the supplier been insolvent or convicted of any malpractice/criminal offences. Supplier Acceptability is checked against the criteria listed in relation to Regulation 23 of the Public Contracts Regulations 2006.

Economic/financial standing – e.g. is the prospective bidder capable of handling the commercial and liability risks of the proposed contract. The Trust may wish to state what level of financial standing is acceptable and make this a pass or fail criteria.

Technical or professional ability – is the prospective bidder fully equipped and resourced to handle this contract. Are sufficient resources and core competences available to the Trust. The prospective bidder must also be able to demonstrate a successful track record (or technical capacity) of supplying these goods or services of a similar type.

PQQ Results

This phase includes any Debriefs and formal notifications of short listed results

Invitation to Tender or Competitive Dialogue? A decision will need to be made by the Trust on whether a Competitive Dialogue phase or an Invitation to Tender stage should be used. This will need to be reviewed by the procurement team and consideration should be given to resource availability within the Trust. High level descriptions of both phases are outlined below

Invitation to Tender (ITT - Restricted Procedure)

Once a short list of suppliers from the PQQ has been drawn up the Invitation to Tender documents (ITT) can be issued. The information within the ITT must include a clearly defined statement of requirements, and should also include any key performance indicators, expected service levels, preferred payment profile and any associated schedules (e.g. Contract Management, Security, Insurance, Data and patient confidentiality etc.). It is extremely important to issue detailed and accurate information to the suppliers at the tender so that all requirements can be assessed and to provide the opportunity to carry out any due diligence in order to submit a quality bid. Terms and Conditions will be issued at this stage which will allow an assessment to define the risk allocation.

The evaluation criteria and weightings must be published in the ITT documentation or the OJEU Notice.

All information provided should be consistent for all suppliers in order to allow for a fair competition, and any clarification during the tender stage will normally be issued to all suppliers, unless this involves a supplier’s intellectual property. If the information/specification is ambiguous or suppliers have to make assumptions for example about Trust resources that will be made available, they could include addition risk costs for any uncertainty into their bid.



For the Restricted Procedure post tender negotiations are not permitted. Any engagement with the bidders after receipt of tenders is limited to clarifications. Tenders are assessed against the pre-agreed evaluation criteria and scoring matrix. Following completion of all scoring the most economically advantageous tender should be recommended to the Project Board with a caveat that all other scoring and quality criteria are met.

When is a Competitive Dialogue appropriate? This procedure is designed for particularly complex procurements. In legal terms contracts can only be considered to be particularly complex where a Contracting Authority; - is not objectively able to define the technical means capable of satisfying their needs or objectives and/or; - not objectively able to specify the legal and/or financial make-up of the project. In addition, the Contracting Authority must consider that use of the Open or Restricted procedure will not allow the award of the contract. To summarise this decision process:

An example of when such a procedure may be appropriate would be a complex IT project where a variety of technical solutions might be possible. Or, where the legal or financial complexities of the requirement cannot be defined in advance and such issues need to be discussed with potential bidders.

It should be noted that for both Institutions and Bidders this procedure requires a greater investment of inputs in terms of resources, planning and time than other standard procedures and cannot be viewed as a short-cut in any way.

The process always involves competitive tendering and award can only be made on the basis of the Most Economically Advantageous Tender (MEAT) award criterion.

Note: In truly exceptional circumstances a Negotiated Tender can be used. See separate guidance for further information.



Invitation to Participate in a Competitive Dialogue (IPCD)

With acknowledgements to OGC/HMT Guidance on Competitive Dialogue for content within this section of the document. Available at the following web address; http://www.ogc.gov.uk/documents/OGC_HMT_2008_Guidance_on_Competitive_Dialogue.pdf

Competitive Dialogue is a procedure whereby an Institution is able to conduct dialogue with bidders directly with the aim of developing one or more suitable alternative solutions to meet its requirements. Individual bidders may develop more than one solution. The dialogue may be conducted in successive stages, with the option of reducing the number of solutions (and therefore bidders) at each stage. Solutions must be eliminated on the basis of applying the stated award criteria. The key issues to consider are:

How do you provide appropriate visibility of your expectations to prospective partners to avoid misunderstandings later in the procurement process?

How do you objectively evaluate and select prospective partners in order to avoid legal challenge?

What types of projects should use Competitive Dialogue?

What are the key factors to consider?

What contractual issues do you need to be aware of?

Within the invitation to participate in a Competitive Dialogue process the following should be included:

Background to the project

Rules on completion and pricing (recommend you do not use costs for shortlisting), and procedure

Evaluation criteria

Timetable

Offer site visit to see the Trust

High level requirements

Example of the contract

Formal response date When specifying the requirements try to keep this at a high level by describing the key areas that need to be addressed. Remember to provide any detail that will help the suppliers including for example:

Key systems and functional needs

Clinical Activity

Equipment

Technical

Approach to implementation

Service Levels and Contract Management

Enter into dialogue and discuss with the suppliers

Their initial responses / questions

http://www.ogc.gov.uk/documents/OGC_HMT_2008_Guidance_on_Competitive_Dialogue.pdf



Consider demonstration days

Site visits

Presentations

Use a team based approach to scoring and be consistent

Be mindful that this is interactive and a dialogue at this stage and that The Trust is seeking to understand what the supplier can offer and how it can solve the needs as much as the supplier is seeking to understand the Trust needs. On the basis of this dialogue, bidders are selected by the Institution to proceed to the next phase and are then invited to tender a detailed design (IPDD phase) All bidders and all potential solutions can be considered for tender, although not if a bidder or solution has been eliminated at an earlier stage.

Competitive Dialogue Phases – IPCD – evaluation Issue the scoring criteria You can include:

Site visits to the Trust

Supplier Demonstrations

Dialogue responses

Contract comments

Presentations Use a team based approach to scoring and be consistent

Outcome of IPCD The aim is to reduce the number of candidates to a manageable number – you can suggest how many in the OJEU notice however this must be The IPCD needs therefore to be built around what you are trying to achieve and are able to manage Debrief suppliers (some may withdraw on their own if they realise that they cannot deliver you need)

Competitive Dialogue Phases – IPDD This phase allows for chosen Suppliers to Participate in Detailed Dialogue. The Key here is to build out the specification as the needs become clearer and you can see what is available on the market. This is an iterative process, but must be consistent across all suppliers. Keep a record of actions and who is delivering them by when. Start to firm up costs.

Competitive Dialogue Phases – IPDD – evaluation



Issue the scoring criteria. You can again include: Site visits, Demonstrations – scripted, Dialogue responses, Contract comments, Presentations

Use a team based approach to scoring and be consistent

Identifies that the suppliers that are left capable of meeting your detailed needs and contract terms.

Best and Final Offer and Scoring (BAFO This is a formal document which needs to be issued and received under Trust SFIs for OJEU tenders Issue contract schedules – One will be the specification, One will be the best and final offer price Issue the scoring criteria and be consistent with IPCD. You can include:

Site visits

Demonstrations - scripted

Dialogue responses

Contract comments

Presentations Use a team based approach to scoring and be consistent Then look at price and see which supplier offers the best score per £ Ensure that you are comparing apples to apples

Preferred Bidder Once decision is made and approved by Trust need to notify the preferredl bidder and all unsuccessful bidders. The Trust will then need to eenter the Alcatel period.

The Alcatel mandatory standstill period is a period of at least ten calendar days following the notification of an award decision in a contract tendered via the Official Journal of the European Union, before the contract is signed with the successful supplier(s). Its purpose is to allow unsuccessful bidders to challenge the decision before the contract is signed. It is named after a pair of linked European Court of Justice cases which are jointly known as the Alcatel case (Case C-81/98). Within the UK, it was introduced by the Office of Government Commerce in 2005 Following this period there will then be a final tidy up of contract, followed by contract signing.

http://en.wikipedia.org/wiki/Official_Journal_of_the_European_Union

http://en.wikipedia.org/wiki/European_Court_of_Justice

http://en.wikipedia.org/wiki/Alcatel

http://en.wikipedia.org/wiki/Office_of_Government_Commerce



Example: Competitive Dialogue Timeline

OJEU Publish

PQQ Publish

OBS/ITT Publish

Check Response

Check Response

Check Response

Completive Dialogue

6 weeks

2 weeks

3 weeks

3 weeks

8 weeks

4 weeks

4 weeks

BAFO2 weeks

Example

Timeline Only

overview of the ojeu pacs procurement process · 1/1/2012 · project manager - the project...

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