Collaborative procurement

With the increased focus on joint procurement, Katie Bray looks at some of the key issues public sector bodies need to bear in mind.

The new age of austerity in the public sector and the anticipated further reduction in the next spending review has led many public sector organisations to rethink their approach to procurement and in particular, to consider smarter ways to conduct procurement processes. More and more organisations are procuring jointly with other bodies or are taking advantage of established framework agreements to facilitate swifter and less costly procurements.

When contracting jointly with another public body, it is the most obvious point which is the one that is very often overlooked – namely who is the contracting authority? The OJEU notice and the eventual contract will need to identify the organisation that the winning bidder will directly contract with. If it is more than one organisation then all bodies will need to be identified on the OJEU notice as contracting authorities.

There is no such thing as a sleeping partner either. If an organisation is a contracting authority then it must actively participate in the procurement activity (and be able to evidence it) in order to demonstrate that it has followed a valid procedure. This requires the organisation to be part of the fabric of the decision-making process from defining evaluation criteria and weighting through to scoring and moderation and includes presentations and reference visits.

The parties need to speak with one voice in order to give clarity and confidence to bidders – there may even be a “lead commissioner”. This means the procurement must be underpinned by proportionate and robust governance which balances the roles of each of the procuring parties.

Our advice is to spend time getting this right before beginning any joint procurement. Think about what the parties want from the process, how you want them to engage with it and what you will do if disagreements arise.

Also consider the logistical questions - whether there will be a single contract with joint and several liability or will there be separate contracts? Will there be a single specification or will there be party specific specifications and sub-specifications?

The multiplicity of documents that bidders will need to digest, price against and execute will affect the duration and complexity of your procurement process. It may even deter some bidders from bidding. 

In our experience pre-procurement engagement is a useful means of ironing out these issues before commencing a competition. For example, in IT procurements, understanding what functionality the market can provide as standard and what needs to be customised or bespoked enables procuring authorities to agree an approach to their respective legal and technical requirements and to produce specifications and contractual arrangements which encourage competition, not defeat it.

Using a framework should mean that most of the hard work is done for you and so should be cheaper and easier to use assuming of course that your contracting authority is within the category of named authorities who are listed in the OJEU notice as permitted to use the framework. However it is worth double checking that the framework is really fit for your requirements, both in terms of contract and of specification because you can’t change material terms of either. It is also worth asking yourself whether you really can run a relatively speedy mini completion because if your mini competition is complex then arguably you haven’t really saved much time/cost.

Katie Bray is Section Leader - Projects at Essex Legal Services. She can be contacted on 03330 139643 or This email address is being protected from spambots. You need JavaScript enabled to view it..