References, Interviews & Site Visits

References, interviews and site visits as award criteria

It is not uncommon for contracting authorities to list references, interviews and/or site visits as award criteria. Based on the case law and general principles stated above, references, interviews and site visits may all easily be linked to the subject matter of the contract and may well assist in identifying the offer that is most economically advantageous. However, in and of themselves, each of them, as award criteria, could be said to confer an unrestricted freedom of choice on the contracting authority.

Take, for example, an interview. If the award criterion is simply stated as “interview”, and there are no sub-criteria or no disclosed marking scheme, then how may a tenderer know how its interview is to be assessed?

Put another way, if a contracting authority wishes, unlawfully, to favour a particular tenderer, then the award criterion “interview” (or “performance at interview”) could enable it to do so as there are no qualitative or quantitative aspects of the criterion that can be judged.

Bear in mind also that the award criteria must be formulated to allow all “reasonably well informed and normally diligent tenderers” to interpret them in the same way. “Interview” as an award criterion could have a very wide range of interpretations – from simply turning up at an interview, through presenting the written bid at the interview, to amplifying, building on or otherwise improving the written bid at an interview, and much more besides.

Interviews should probably be limited to cases in which they are necessary to be assessed as separate qualitative criteria or where criteria can only be assessed by means of the interview.

Here, the content of the interview could be tailored to the evaluation of a particular criterion in the tender, but in this case the interview is an aid to evaluation, rather than a criterion itself (see further below).

In order to assure transparency and non-discrimination, both a timely disclosure of the interview questions and keeping a record of the interviews (e.g. on tape) are recommended.

In particular, the former may help to ensure equal treatment by assisting all bidders to identify the precise requirement(s) to which the interview is designed a response. Where the interview forms part of the assessment of criteria, separate marks should be identified with a scoring mechanism.

References, in particular, are likely to seek to determine the experience of the tenderers, rather than casting light on which offer is the most economically advantageous bid for the contracting authority.

Site visits too may include at least some consideration of how the site has been used in the past or how the tenderer has performed a similar project at another contracting authority’s site (i.e. experience) rather than illustrating the tenderer’s proposals for the contract for which it is bidding.

In light of this, in principle, references should generally be assessed at the selection/qualification stage, namely as confirmation of the bidders’ experience related to the particular contract. It may occasionally be the case that references can be used as evidence of something put forward in a bid, such as a manner of delivering a particular service. If a bidder is delivering that service elsewhere a reference will back up the bidder’s assertion that it can do the same in the context of the present contract. Thus, whenever they are used, references should be required solely for the verification of the technical merits of the bid. For example, they may assist the contracting authority to understand how in practice what a bidder is proposing is being delivered under a similar contract elsewhere, in which case marking could be facilitated by asking referees to fill in pro-formas. In this case, references act as evidence to support the written declarations of the bidders. So, references should not be regarded as criteria themselves, but as data provided by bidders at the request of the contracting authority to evaluate their technical ability in the light of a particular selection/qualification criterion.

Before a contracting authority considers the use of site visits in procurement the authority must consider why it wants them. This seems an obvious point but one that can be easily overlooked. It may be to verify what is said in bid documents or it may be to evaluate a criterion that cannot be easily demonstrated in a document. Again all bidders must be treated equally and so if any site visits are to be used then all bidders’ sites must be visited.

One possible exception may be the verification of a winning bid. In that case, it may be possible to set out in the ITT that only the winning bid will be verified by a site visit. If, as a result, the bid is excluded or the bids marks reduced so that the second placed bidder is now in first place, then that bid will then be verified and so on.

References, interviews and site visits may well not meet the requirements of the case law to be considered as valid and discrete award criteria.  In most situations, they may be more usefully employed as aids to evaluation provided that their use is transparent and equal treatment is facilitated.