Procurement and Tendering - L3

Question 1

What is procurement?

Answer 1

• The overall act of obtaining goods and services for a construction project.
• There are several routes by which the design and construction of a building can be procured. The selected procurement route should follow a strategy which fits the project criteria and objectives.

Question 2

What are the main factors which typically govern procurement route selection?

Answer 2

• The key is to identify the client’s objectives and key drivers in terms of time, cost and quality. Other factors such as risk allocation should also be considered.
• It’s unusual to satisfy all these elements with on procurement route. Consideration must be given to the clients list of priorities to identify the most appropriate procurement route.

Question 3

Which procurement options are you familiar with?

Answer 3

• Traditional procurement.
• Design and Build.
• Management Contracting.
• Construction Management.

Question 4

What is traditional procurement?

Answer 4

The traditional procurement route involves separating design from construction. The employer first appoints consultants to design the project in detail, contractors are then invited to submit tenders based on a fully developed scheme.

Question 5

What are the key points of traditional procurement?

Answer 5

• The design is completed by the employer’s design team before competitive tenders are invited. The contractor is then appointed to build what the designers have specified.
• The contractors tender is based on a complete design produced by the employer’s consultants (with exception to Contractor’s Design Portions or CDP).
• Assuming no significant design changes arise, construction costs can be determined with reasonable certainty before works begin.
• The emnployer retains the design consultants during construction. The consultants prepare any additional design information and review CDP designs prepared by the contractor.

Question 6

What are the key advantages of traditional procurement?

Answer 6

• The employer retains control of the design.
• The design is largely finalised before the contractors tender for the build; this means the employer knows exactly what they are getting.
• All tenderers produce a submission based on the same information (tender returns are much easier to compare).
• Assuming the design is robust, reasonable price certainty is achieved at contract award.
• Minimal built-in contractor risk premium (unlike design and build).

Question 7

What are the key disadvantages of traditional procurement?

Answer 7

• The overall project duration may be longer than a design and build procurement (limited opportunity to overlap design and construction phases).
• Zero or limited contractor buildability input.
• Design risk is retained by the employer, any changes post-contract will be a variation or compensation event.
• Dual point of responsibility (employer for design and contractor for construction).

Question 8

When might traditional procurement be appropriate?

Answer 8

– The employer may have specific or detailed design requirements.
– Cost certainty is important (traditional has significant advantages over construction management or management contracting procurement routes).
– The shortest overall program is not the employer’s main priority.

Question 9

What is design and build?

Answer 9

The contractor is responsible for completing the design and executing the construction phase of the project. This is a completely different approach to delivering a project via traditional procurement, where the client appoints consultants to undertake the design and then a contractor is appointed to construct the works.

Question 10

What are the key points of design and build procurement?

Answer 10

• Under the JCT contract, the employer’s team produce a set of employer’s requirements (ERs), the contractor and then responds to the ERs with their contractor’s proposals (CPs).
• The original employer’s design team may be novated to the contractor for continuity, or the contractor may appoint their own design team.
• The contractor is responsible for the design, planning, organisation, control and construction of the works.
• Design risk is transferred to the contractor.

Question 11

What are the key advantages to design and build procurement?

Answer 11

• Single point of responsibility for design and construction (Contractor).
• Earlier commencement on site is possible (if design and construction can be overlapped).
• Benefit of contractor’s experience harnessed during design (buildability input).
• Design and construction risk rests with the contractor.
• Provides more cost certainty than traditional procurement.

Question 12

What are the key disadvantages to design and build procurement?

Answer 12

• The design is only as good as the employer’s requirements (the employer may find it difficult to prepare a sufficiently comprehensive brief).
• More complex to compare tender returns.
• Employer changes can be difficult to value and expensive.
• The employer may have less control over aesthetics and quality.
• The contractor will build in risk premiums into their tender return.

Question 13

When might design and build procurment be appropriate?

Answer 13

• When there is a need to make an early start on site (D&B has potential to overlap design and construction).
• Where the employer wishes to minimise the risk profile (design risk is passed on to the contractor).
• For technically complex projects, the design will benefit from the contractor’s buildability input.
• Where retaining control of the design is not a priority.

Question 14

What additional insurance might be required under a D&B contract?

Answer 14

The contractor and the design team will have design responsibility; therefore, it is likely additional professional indemnity insurance (PI Insurance) will be required.

Question 15

What are the employer’s requirements (ERs)?

Answer 15

The expression employer’s requirements are used to describe the document(s) produced by the employer to set out its requirements in relation to the project (including performance specifications, drawings, initial designs etc.) and this is what the design and construction of the works will be based on.

Question 16

What are contractors proposals (CPs)?

Answer 16

• CPs are prepared by the contractor which responds to the employer’s requirements.
• In this document(s), the contractor will produce detailed design information (based on the employer’s requirements), which will require further development throughout the course of the project.

Question 17

Which procurement route poses the least risk to the employer?

Answer 17

Design and build, this is because the design risk is transferred to the contractor.

Question 18

Why does the employer usually pay a premium for design and build procurement at tender stage?

Answer 18

The contractor will usually factor in an allowance within the tender return in exchange for taking on the design risk.

Question 19

On the design and build, who executes the design for the contractor?

Answer 19

The contractor may use their own in-house design or they can appoint external consultants. The employer’s original design team can also be novated to the contractor.

Question 20

What is construction management procurement?

Answer 20

The employer directly appoints multiple subcontractors (referred to as trade contractors) instead of employing a single main contractor. The single feature that makes construction management unique, particularly from management contracting, is that the employer places individual contracts with separate specialist trade contractors themselves.

Question 21

What are the key points of construction management procurement?

Answer 21

• The employer places a direct contact with each trade contractor and utilises the expertise of a construction manager to coordinate the works.
• The construction manager programs and coordinates the works.
• The construction manager has no contractual link with the trade contractors.
• The construction manager has no vested interest in the financial outcome of the project and, barring professional negligence carries no risk.

Question 22

What are the key advantages of construction management procurement?

Answer 22

• Speed (early start on site).
• Overall project duration reduced by overlapping design and construction.
• The construction manager can contribute to the design and project planning processes.
• Changes in design can be accommodated without paying a premium.
• Prices may be lower due to direct contracts with trade contractors.
• The employer has means of redress with trade contractors through direct contractual links.

Question 23

What are the key disadvantages of construction management procurement?

Answer 23

• Price certainty is not achieved until the last trade packages let.
• The procurement route requires an informed, experienced to and proactive employer to work.
• The employer has a lot of consultants and contractors to manage.

Question 24

When might construction management procurement be appropriate?

Answer 24

• The employer is experienced in construction and has the suitable resources to manage the project.
• The employer wants to achieve an early start on site.
• The employer wants the flexibility to make minor changes to the design / specification throughout the process with minimal impact on time or finances.
• The project is technically complex and requires detailed engagement of specialist consultants and trade contractors.

Question 25

Which is the riskiest procurement route for the employer?

Answer 25

Construction management. This is because the employer places individual contracts direct with each trade contractor and the construction manager carries no risk (barring professional negligence).

Question 26

What is management contracting?

Answer 26

- The employer appoints and management contractor to manage the entire building process who in turn appoints trade contractors to carry out the construction works. - The management contractor is usually paid a fee percentage based on construction costs. - The management contractor has a direct contractual link with the trade contractors and is responsible for the overall construction works.

Question 27

What are the key advantages to management contracting?

Answer 27

- Overall project duration can be reduced by overlapping design construction. - The management contractor will provide buildability input. - Single point of responsibility (management contractor). - Trade packages are let competitively and transparently. - There can be considerable flexibility in the design, with changes being made throughout the construction process.

Question 28

What are the key disadvantages to management contracting?

Answer 28

- Price certainty is not achieved until the last trade package is let. - Requires an informed and proactive employer to be successful. - Depending on how the construction manager is remunerated, there may be a built-in disincentive for the construction manager to minimise costs.

Question 29

When might management contracting be appropriate?

Answer 29

- When an early start on site is a priority. - Flexibility in design is required. - Buildability input from the management contractor is required. - Where cost certainty is not a priority for the employer.

Question 30

What is a framework agreement?

Answer 30

- A framework agreement is an umbrella agreement that a party enters with one or more suppliers (who may be contractors, subcontractors, suppliers, or consultants) to establish governing terms. - A framework usually sets a strategic partnering relationship for the procurement of goods, works or services.

Question 31

How long can a framework be?

Answer 31

Typically, a framework agreement lasts for 4 years. However, this is determined by the buyer. They can range between 2-10 years.

Question 32

What are the key advantages to a framework agreement?

Answer 32

- Framework agreements can help to develop stronger relationships between the parties involved and encourage long-term collaboration and cooperation. - Time-saving (can speed up the procurement of goods and services). - Repeat work and continuity of delivery. - Rates and prices are usually agreed upfront.

Question 33

What are the key disadvantages to a framework agreement?

Answer 33

- The contractors, suppliers, or consultants can become complacent. - Bidders will invest time and money to be awarded onto a framework and then potentially not receive any work for them. - Maybe restrictive to new suppliers who offer innovative, new solutions with the changing and evolving nature of technologies for example.

Question 34

Why might the employer choose a framework agreement to procure goods and services?

Answer 34

- Employers that are continuously commissioning construction work might want to reduce procurement timescales, learning curves and other risks by using framework agreements. - A framework allows the employer to invite tenders from suppliers of goods and services on a call-off basis as and when required

Question 35

What's the difference between a framework agreement and a contract?

Answer 35

- A framework agreement rarely provides any specific commitment in terms of a project and value of works. It is more focused on being an approved supplier. - A contract is usually a specific fee, with project scope and timelines allowing you to quote and tailor your product/service for the specific job at hand.

Question 36

What is project partnering?

Answer 36

- Partnering is a broad term used to describe a collaborative management approach that encourages openness and trust between the contracting parties. - There is more opportunity for building working relationships, finding improvements and planning investment. - Ownership of risk is spread between the parties and a collaborative approach is encouraged to delivering the solution and overcoming problems.

Question 37

What are the key advantages of partnering?

Answer 37

- The overall construction design program can be shortened. - The likelihood of conflict is reduced. - Improved communication and mutual objective. - Improved customer satisfaction. - Improved value for the employer. - Improved buildability (early involvement of contractors for example). - Better predictability of time and cost.

Question 38

What are the key disadvantages of partnering?

Answer 38

- Less opportunity to understand what the other contractors/potential partners have to offer. - Difficult to find a strong partner which have the same objectives, ethics, attitude etc.

Question 39

What is tendering?

Answer 39

Tendering is the process by which the employer invites contractors to place a bid for work on a construction project. The overall objective is to obtain a price for the works.

Question 40

What is the difference between procurement and tendering?

Answer 40

- Procurement is the overall act of obtaining goods and services from external sources and deciding the strategy on how these goods are to be acquired. - Tendering is a phase in the procurement strategy and deals with obtaining a price through a bidding process and deciding how a contractor is appointed.

Question 41

What are the three main tendering options for construction projects?

Answer 41

- Single-stage tender. - Two-stage tender. - Negotiated tender.

Question 42

What documents do you include within the tender pack?

Answer 42

- Invitation to tender (ITT), including cover letter with tender return information. - Form of tender. - Contract conditions and employer's amendments. - Instructions to bidders including how errors will be dealt with. - Tender scoring matrix. Project information, drawings, specifications, surveys, planning conditions, etc. - Pricing document. - Pre-construction information (PCI). - Quality questions (such as experience a methodology). - Receipt of tender.

Question 43

What is a bona fide tender?

Answer 43

- A bid submitted in good faith, complete and in the prescribed form which meets the conditions of the bidding requirements. - Confirmation that the supplier has not colluded with another party when compiling the tender.

Question 44

What is OJEU?

Answer 44

- The official Journal of the European Union (OJEU). - An online portal that houses public sector contracts that are over the stated procurment threshold.

Question 45

What happens to OJEU now that the UK has left the EU?

Answer 45

- From the 1st of January 2021, the UK is not subject to EU procurement regulations and therefore no longer follow rules outlined for OJEU tenders. - Tenders will now be published on the new e-tendering portal, called Find A Tender Service (FTS).

Question 46

Are you aware of any guidance issued by RICS associated with tendering strategies?

Answer 46

Yes. Tendering strategies, 1st edition.

Question 47

What is a prequalification questionnaire (PQQ)?

Answer 47

A prequalification questionnaire sets out a series of questions for potential tenderers to answer regarding their level of experience, capacity, financial standing etc. prior to being invited to tender.

Question 48

What is the purpose of a PQQ?

Answer 48

The prequalification questionnaire has the effect of reducing the number of potential tenderers to those that are genuinely appropriate for the project. This saves a great deal of time for potential tenderers who would not have any realistic chance of winning the contract.

Question 49

What might the PQQ ask for?

Answer 49

- Company details (including legal status). - Details of insurance cover. - Financial information (such as company accounts). - Relevant experience. - Information about technical and professional ability. - Information about capability and capacity. - Health and safety policy and records. - Quality assurance policy. - Environmental management policy. - Equal opportunities policy. - References.

Question 50

A credit check is usually part of the PQQ process, where could you get a credit check from?

Answer 50

- Dun & Bradstreet report. - Credit agencies such as Experian.

Question 51

What is single-stage tendering?

Answer 51

Tender documents are issued to several competing contractors who were all given the chance to bid for the project based on identical tender documentation.

Question 52

What are the key advantages of single-stage tendering?

Answer 52

- The employee benefits from a competitive tendering process which can lead to more competitive pricing. - The employer can benefit from a fixed price through this tendering process.

Question 53

What are the key disadvantages of single-stage tendering?

Answer 53

- No buildability input from the contractor (at the point of tender). - The price is only as good as the design information. - Contractors may be unwilling to tender in a good economic climate (too much competition).

Question 54

If you have a £25m new build project under design and build procurement (single-stage tender), how long would you allow for the tender period?

Answer 54

The tender period is largely dependent on the complexity of the project; however, 10-12 weeks would be reasonable as it will take some time to interpret the employer's requirements.

Question 55

What is a two-stage tendering?

Answer 55

Stage one – The employer provides an outline project design and contractors then compete for preferred contractor status. The preferred contractor is usually chosen based on the quality of their bid, the quality of the team, preliminaries, and OH&P allowances. The preferred contractor then joins the design team on a consultancy basis using a pre-construction service agreement (PCSA). Stage two – Once the design has sufficiently progressed, the contractor enters into a detailed contract negotiation with the employer to agree the final price, contract conditions, and programme.

Question 56

What are the key advantages of two-stage tendering?

Answer 56

– Early appointment of the contractor to work in parallel with the design team. – Early involvement of the contract to benefit from buildability input. – Earlier start on site is possible. – Employer involvement in subcontractor selection. – Increased opportunity to value engineer with the contractor's input. – Improved opportunity to identify project risk.

Question 57

What are the key disadvantages of two-stage tendering?

Answer 57

– The contractor has less incentive to price the second stage competitively, negotiations may therefore be difficult. – Additional cost of the contractor's pre construction fee. – Potential for the negotiation stage to fail (contracts sum not agreed).

Question 58

What is a negotiated tender?

Answer 58

A negotiated tender is effectively a single-stage tender carried out between the client employer and just one contractor. Negotiated tenders are obtained by the client, inviting one contractor of their choice to submit a tender response for the project.

Question 59

What are the key advantages of negotiated tender?

Answer 59

– Simplicity. – Speed, a negotiated process can have programme advantages if undertaken in good faith. – The employer has flexibility in terms of choosing their preferred contractor. – Time and cost savings involved in comparing and analysing multiple tender submissions. – The process can allow early contractor involvement.

Question 60

What are the key disadvantages of negotiated tender?

Answer 60

– Possibility of delay if contract negotiations are protracted. – Potential cost premium due to the lack of competition. – There is a heavy reliance on trust between the parties. – It can be seen as anti-competitive and exclusive.

Question 61

How could you justify value for money in a negotiated tender?

Answer 61

Insist on an open book approach when agreeing subcontract packages and a minimum of 3 quotes to be provided for each element of the works (this would need to be agreed upon upfront with the contractor).

Question 62

What is a "Form of tender"?

Answer 62

– The contractor usually signs and returns with their proposed tender submission. – It is formal acknowledgement that the tenderer understands and accepts the terms of conditions of the tender documents and any other requirements that are stipulated. The document also includes the contract price and programme

Question 63

What information is typically included in the form of tender?

Answer 63

– Tender sum. – The date until which the price remains valid. – Construction period. – Confirmation of the tender being genuine and bonafide. – Tenderer details and signature. – Acceptance of terms and conditions.

Question 64

When seeking tenders for construction work, in addition to the actual price for the work, what additional information might be requested from the contractor?

Answer 64

– Track record of previous experience (For example, case studies). – Proposed team and hierarchy. – Methodology or approach. – References. – Programme. – Health and safety information. – Value engineering proposals. – Logistics plans. – Social value strategy. – Diversity and inclusion policy.

Question 65

Once tenders have been submitted, what should be examined for compliance with the invitation to tender and tender instructions?

Answer 65

– Arithmetical errors. – Pricing errors (Items not priced). – Pricing method (Frontloading). – Compare the contractor's proposals against the employer's requirements for compliance (D&B Procurement). – Check the form of tender is complete and signed. – Resolve any qualifications.

Question 66

What happens if a tender is submitted late?

Answer 66

Public sector project – the document should not be accepted. Private sector project – the matter should be discussed with the employer to understand if they would like to accept. The safest option is not to consider (Potential fraud, collusion, bid-rigging risk etc).

Question 67

Would you open a late tender submission for a school project?

Answer 67

The tender should be discarded on the basis the project is funded by the public sector.

Question 68

What is the danger of accepting a very low tender submission?

Answer 68

– The contract and maybe trying to 'buy' the project with a view to recover the cost with variations and/or claims. – It could indicate the contractor is in a poor financial or cash flow position and they are eager to win the work at any cost. – Areas of the project may not be priced accurately, potential for an adversarial relationship to develop post contract.

Question 69

How do you deal with qualifications within the tender submission?

Answer 69

– Procedures associated with qualifications should be outlined in the tender instructions. – If the qualifications are unauthorised it might invalidate the tender (lead to disqualification). – The employer team and contractor should look to resolve the qualifications prior to signing the contract. Any outstanding matters should be clearly documented in the contract to avoid future disputes.

Question 70

How would you deal with errors identified in the tender submissions?

Answer 70

JCT have produced a tendering practice note where two options are suggested to deal with errors, one of these options is usually drafted into the tender pack. Alternative one: – The tenderer should be given the details of the errors and afforded the opportunity to confirm or withdraw their tender. – If they withdraw the next lowest bid is considered. Alternative two: – The tenderer should be given the opportunity of confirming their offer or amending it to correct genuine errors.

Question 71

What would you do if you considered a contractor submitting the lowest tender to be in financial difficulty?

Answer 71

– As part of the evaluation process, the company accounts will be reviewed to assess the financial stability of the contractor (If not already completed at PQQ stage). This could lead to disqualification if the contract is having financial difficulty. – Consider a performance bond. In the event the contractor falls insolvent, the employer will be able to call on the bond and appoint another contractor to complete the project. – Consider a parent company guarantee.

Question 72

On what grounds would you advise the client to re-tender?

Answer 72

– Not enough tenderers returned tenders. – The tendering procedure is compromised for some reason. – If tenders were not at the cost level required and it was believed that re-tendering to different tenderers would provide a different result. – Design changes or VE has been carried out that has significantly changed the design that was originally tendered on.

Question 73

How do you deal with a front-loaded tender?

Answer 73

– Front loading is generally not a pricing error. – Request contractor removes frontloading, if the contractor refuses, this may be grounds for disqualification.

Question 74

How could you reduce the risk of contractors pulling out during the tender process?

Answer 74

– Ensuring the tender information is as accurate as possible. – Ensure the tender period is long enough (extend if required). – Go through the PQQ to ensure that the correct tenders are selected. – Check the contractor has time capacity to complete the tender.

Question 75

On what grounds would you advise your client to re-tender the project?

Answer 75

– Not enough tenders returned. – The tender procedure was compromised in some way (potential fraud, collusion, bid-rigging etc). – Significant design, methodology or programme changes after issuing the tender documents.

Question 76

What is a contract sum analysis document under design and build procurement?

Answer 76

A contract sum analysis (CSA) is an alternative pricing document to the schedule of works (SoW) or bill of quantities (BoQ). It is often prepared in a standard format by the employer's team to support the tender analysis. The employers team usually request that all tenders be returned on the same CSA format.

Question 77

What information is typically included within the tender analysis report?

Answer 77

– List of tenders received. – Initial tender return totals. – Any qualifications identified. – Post tender adjustments. – Revised tender sum. – Issues to be resolved. – Comparison of tender returns. – Comparison with pre-tender estimate. – Recommendation.

Question 78

If the tender was received on time, but the project is delayed for a few months, what would you need to check?

Answer 78

Check the form of tender, this would show how long the price (the offer) is valid. For example 60 or 90 days after the tender return date.

Question 79

If the contractor (in their tender return) put a cost against an item and marked it provisional, what would you do?

Answer 79

I would seek further information from the contractor and request this be removed. Subject to the tender instructions, this may invalidate the submission.

Question 80

If you think the delivery program is tight, how can you give comfort to the contractor regarding liquidated damages (To avoid them excessively pricing in the tender sum)?

Answer 80

The contract can be amended to include a liquidated damage-free period. For example, damages would not be levied for the first three weeks or levied at 50% for a defined period.

Question 81

What is the purpose of a pre-tender estimate?

Answer 81

– A pre-tender estimate (PTE) is a last cost check of the project before it is issued to tender. The design should be sufficiently developed at this stage; therefore, the PTE should be an accurate reflection of the works. – The estimate can then be used to compare against the tender submissions.

Question 82

What happens if the tender prices are higher than the pre-tender estimate?

Answer 82

– This could be down to market conditions or some external factors such as COVID-19 of Brexit. – The employer's team could reconcile the tender against the pre-tender estimate to identify where the major differences are. – The team could look to value engineer the project if the prices over budget.