July 01, 2019 Public Contract Law Journal

Feedback and Supplier Debriefing: The Unloved Child of SME-Friendly Procurement Pratice

by Ceri Evans & Dermot Cahill

Ceri Evans is Lecturer in Procurement & Innovation and Senior Procurement Specialist at the Institute for Competition & Procurement Studies at Bangor University.

Professor Dermot Cahill is Chairman of the Institute for Competition &  Procurement Studies and Head of Bangor University Law School.

I.  Introduction1

Initiatives to embrace small and medium-sized enterprises (SMEs)2 in public sector procurement have been widespread in recent years across the globe, and yet SMEs still remain significantly under-represented in public sector procurement in comparison to their economic contribution and their number.3

One area of SME-friendly procurement that arguably has not been given the attention it deserves by major institutions, such as the European Com- mission, is the provision of public procurer feedback to SMEs, or rather the provision of meaningful feedback to SMEs following their submission of an unsuccessful public sector tender. Academic research into this topic has also been limited by the fact that, up until now, there have been no empirical studies into public sector bodies’ feedback practices to SMEs.4 Feedback is, however, of critical importance to SMEs in helping them understand why they have failed to win in a public sector competition and what is required for future success.5

In drawing on evidence gathered from feedback letters analyzed as part of a European Union (EU)-funded procurement research project,6 this article examines actual feedback practice for the first time. It does so in the form of a content-based analysis of feedback issued to disappointed bidders by eighteen separate United Kingdom (UK) public sector bodies (including central government and local government organisations, the police force, and universities) across thirty-nine different procurement exercises.7 It provides empirical evidence regarding the extent of feedback provision and the qualitative nature of the feedback provided, that bridges the knowledge gap between SME claims regarding the feedback they have received and procurer assertions about their feedback practice.8

The analysis enhances our understanding of whether feedback practices meet the needs of SMEs, and in so doing, will explore whether there is a disconnect between policy and practice in relation to improving SME access to the public sector marketplace, specifically in the context of non-transparent public procurer feedback provision to SMEs following unsuccessful bid submissions. The findings from this study have ramifications not just for public procurement practice in the UK and EU, but also for other jurisdictions throughout the world that have adopted a proactive stance towards embracing SMEs in public sector procurement and removing barriers to their participation.

This article also proposes the first-ever system for categorizing different components of feedback, as well as a unique Universal Feedback Methodology that public sector bodies can use to provide “good” feedback to SMEs in a standardized fashion regardless of contract size, complexity, or jurisdiction. Public procurers who adopt this methodology will be confident they are operating in an SME-friendly fashion, satisfying transparency and integrity requirements, while at the same time being legally compliant with national and EU procurement case law and legislation and enabling SMEs to defend their position if procedural unfairness has occurred. This should prove useful to academics and practitioners alike. It will also give assurance to disappointed SMEs that the feedback they receive will allow them to be sufficiently informed so that they can submit a stronger bid next time around, while also giving them confidence that this feedback has met a standard of fairness that complies with their legal entitlements in enabling them to understand why they were not selected as the winner.

The rest of this article will proceed as follows: Part II provides contextual background related to SMEs and public procurement, discussing the significance of feedback from both sides of the supplier-purchaser interface. Part III provides a review of existing literature, addressing the anecdotal nature of literature on the subject and the issue of feedback and public procurement policy. In Part IV, the article provides the legal analysis underpinning the study, with Part V detailing the research methodology. Part VI presents and discusses the research findings, with Part VII discussing the implications for policy and practice, including the proposed Universal Feedback Methodology. The final Part provides concluding remarks.

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