Poor attendance, bleak outlook

You ask if recent changes to OJEU will make the process easier (New OJEU will make public sector ‘think harder’, QS News, 11 November). From my perspective the question is: will they make the process fairer?

Our main beef with the existing directives still remains under the new. Although under the restricted procedure there is no requirement for tenderers to be selected on the basis of the most economically advantageous application to tender, this is what UK authorities seek to do, even though this discriminates against smaller firms. These smaller firms, although meeting an authority’s minimum standards, do not have anywhere near the numbers of offices, staff or track record of the big guns.

The directives’ stated aim to open up public sector procurement in Europe (which even the EC openly admits it fails miserably at) actually has the opposite effect of distorting competition and closing down national markets in favour of big national firms.

The new directive has its roots in a 1996 green paper which we all had an opportunity to respond to, but only 250 responses were received – Europe wide. I attended conferences at the CBI in 1997 with representatives from the European Commission, the Treasury and others to discuss the issues raised in the green paper and was surprised to be the only QS there. Our practice responded to the green paper with seven proposals that we would have liked to see made to the existing directives. None were taken on board. Indeed, some of the changes made are at 180 degrees to our proposals.

One of our seven proposals for the overhaul of the directives addressed this inequity with breathtaking simplicity. Our proposal was that the directives should be amended to require that the nature and mix of firms invited to tender reflect the nature and mix of firms who apply to tender and who meet an authority’s minimum standard of economic and financial standing, ability and technical capacity. This would have required authorities to adopt some form of banding or classification of applicants, but surely this would have been within the wit of man?

I sat bolt upright a few years ago when I learnt that it has been held on a case in Denmark in 1996 that it is not obligatory to use selection criteria based on finding ‘the best’, and that it is legitimate to seek to optimise competition through the selection of different types and sizes of firms all of whom meet the required minimum standard. However, this decision appears to have had no impact in the UK and I can’t see anything in the new directive that reinforces it. Unless UK authorities can be made to wake up and grasp the basic principle that pre-qualification is a selection procedure, not a tender procedure, and that those applying to pre-qualify are applying to be selected to tender, not tendering for the right tender, the outlook for smaller firms looks bleak.

Graham Stow, DRA Bristol