The scoring methodology, weightings and contract award criteria must be clearly defined in the procurement documents to ensure transparency of the process and a common understanding by all bidders of how tender responses will be evaluated and scored. They must be proportionate to the requirement. There should be scope to evaluate responses from bidders of different sizes and maturity.
The allocation of weighting of a Fair Work First question should be determined on a case-by-case basis to ensure it is relevant and proportionate to the contract in question and to maximise the impact of Fair Work First in the contract.
Weightings must balance the quality, cost and outcomes required. When weighting the Fair Work First criteria, it is important to be relevant and proportionate by taking into account the relative impact that the delivery of Fair Work First can have on the quality of the service delivery, works performed, or goods supplied.
Recognising that the bidder’s approach will address the risks identified in the tender documentation, the weighting given to the Fair Work First question or to individual Fair Work First criterion should be sufficient to affect the overall score of a supplier’s bid.
For example, where it has been identified that there is a high proportion of women working in the sector, but they are not equally represented at all grades, a greater emphasis and weighting on flexible and family friendly working practices, no inappropriate use of zero hours contracts, action to tackle the gender pay gap and create a more diverse and inclusive workplace and workforce development may help to address gender balance.
When developing the scoring methodology, it is important to take into account any specific aspects of the Fair Work First criteria and any wider fair work practices that have been drawn out in the specification to demonstrate their importance to the contract, along with a more holistic view of the comprehensiveness and quality of the complete package of Fair Work First requirements.
The scoring methodology should enable the evaluation panel to score tender responses based on how a bidder’s outlined approach will have a positive impact on the way that the contract is delivered.
Each of the Fair Work First criteria, included in the Invitation to Tender, should be addressed in the bids received and may include bidders explaining why particular criteria are not relevant to them. See proportionate responses, below.
The Fair Work First Guidance and best practice examples at Annex B can be used to help frame Fair Work First requirements and to evaluate bids.
The Procurement Journey also includes sample scoring methodologies that can be tailored to suit the specific requirements of a buyer’s procurement exercise.
As well as being involved in developing Fair Work First requirements for a procurement, subject matter experts can provide valuable input when evaluating tender responses for Fair Work First criteria, for example, human resources colleagues, Equality and Diversity specialists.
It is important to consider those aspects of fair work practices which are likely to have a positive impact on the service delivery, the works performed, or goods supplied in that sector. It is also important to take into account the comprehensiveness and quality of the complete package of measures in general.
Fair Work First will exist in different forms in different organisations. A public body needs to consider the nature and size of bidders to ensure that Fair Work First requirements do not result in discrimination against smaller bidders due to disproportionate requirements that could be seen to favour larger organisations.
While the principle of equal treatment of suppliers applies, that does not mean that all tender responses need to describe the same approach to meeting Fair Work First criteria. Responses may describe different approaches to fair work practices depending on the size and nature of the bidder and it is important to recognise what represents a good response relative to the nature of individual bidders.
For example, a large business may be able to demonstrate compliance with the criteria ‘of action to tackle the gender pay gap and create a more diverse and inclusive work force’ by referring to its gender pay gap report, as part of its response to this criterion. Whereas a gender pay gap report from a smaller business or sole trader with fewer employees might not provide a representative view of their response to equality in the work force because pay gaps are calculated from averages and an average can be changed a lot by a single figure if staffing changes in a smaller business. Instead, a statement confirming their equal pay policy may be sufficient for a smaller business. Where a sole trader has no employees, an explanation as to why this criterion does not apply will be sufficient, though they should reassure the evaluator that such criterion would be adopted should they take on employees during the duration of the contract.
Similarly, different forms of effective voice are appropriate for different organisations, and exceptions will apply for some organisations and workers, such as micro organisations, sole traders and possibly family businesses. Such businesses may have different but proportionate approaches to achieving effective voice than larger organisations.
For example, carrying out regular surveys to understand workers’ views, including how well they feel effective voice is facilitated in the organisation in the absence of a trade union or employee representatives you would expect to see in larger organisations. Evaluation should focus on a credible and proportionate response that demonstrates an understanding and commitment to relevant Fair Work First criteria.
It will be important for bidders to know in advance what they need to do to comply with individual fair work criteria, similarly, the evaluation panel should be provided with appropriate guidance in advance on how to evaluate and score tender responses.
See Annex B and Annex G for examples of what good looks like with regards to a bidder’s response.
Where payment of at least the real Living Wage has been required and asked as a standalone question, tenders should be rejected if they do not commit to paying workers delivering the contract at least the real Living Wage.
Good tender responses should provide reassurance that bidders are committed to paying the real Living Wage to UK based workers and fair pay for workers based outside the UK.
Bidders from outside the UK can and should still be expected to describe and demonstrate how they are committed to providing fair pay for workers as part of their approach to Fair Work First.
See Annex F for model wording where it has been determined that the real Living Wage can be required and Annex C for sources of help and support in determining fair pay internationally.
Regulation 19(4) of PC(S)R 2015 places a legal obligation on a public body to include relevant clauses in their contracts to ensure those they contract with comply with environmental, social and employment law obligations.
Regulation 57(2) of PC(S)R 2015 allows a public body to reject bids that do not comply with applicable obligations in the fields of environmental, social and labour law established by national law, collective agreements or by the international environmental, social and labour laws.
Regulation 69(5) of PC(S)R 2015 places a legal obligation on a public body to reject bids that have been found to be abnormally low because they do not comply with applicable obligations in environmental, social or labour law.
Where a bid appears to be abnormally low, a public body must require the bidder to explain its pricing. This can include an explanation of how the bid will maintain compliance with relevant environmental, social and employment laws such as employment, equality or health and safety legislation. The bid must be rejected if it is established that it is abnormally low because it does not comply with relevant environmental, social and employment law including collective agreements (regulation 69(5) of the PC(S)R 2015).
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