Understanding Public Sector T&C’s

11th May 2023
Public Sector Sales

When it comes to public sector contract negotiation, most people run for the hills. Some avoid working with public sector clients altogether because of a fear that if they mess up, its going to destroy their brand, ultimately.

Or they’ll have to dedicate a whole load of resource to that contract which means that it runs at a loss, and destroys your brand. That brand that you have spent so long developing and nurturing.

This doesn’t need to be the case.

I’m going to talk through 3 little known elements of public sector small print that you maybe didn’t know.

If you know that you don’t care about small print and you just want it to work for you, grab some time with one of our consultants HERE who will be able to advise.

1 – you write the small print.

Yes you heard me, you get to write the small print. Not all of it, but enough of it to protect you, yourself and your brand.
What you probably weren’t aware of is that there several places where that small print needs to go, why they need to go there and what is visible to your competition or other suppliers.

Before we go any further, it is worth noting that if you supply services to the public sector, then goods and services that you provide to the client are being purchased with Public money… and therefore your contract and commercials can be requested under Freedom of Information.

Details may vary depending on the nature of the question and how is has been phrased…

There are 3 different places where you can note your small print. It is good practice to put them in multiple places if it is appropriate to do so.

  • Pricing
  • Exclusions
  • Within the response

Pricing Assumptions are much more than “exclusive of VAT”. You can also make references to capex stage payments of, payment terms and inclusions of other services; such as “24 months engineering maintenance included”.

You are always asked for Exclusions so it is important to consider what isn’t immediately included within your offering. There was a drainage client that I have been doing some work with recently who had an absolute corker – They will come out and unblock your toilet, however they are not plumbers and so cannot remove the toilet to access the pipes. (this is industry standard believe it or not?!)

We drafted a pricing assumption that excludes plumbing service charges; exclusions that note plumbing services are excluded and referenced these specifics twice within the response.

Additionally, if you are responding to a tender on a compliant framework, one where only a handful of suppliers will be allowed to respond to tenders, you are also asked to complete contract forms. These are templates issued within the tender pack that also include “Contracted Exclusions and Assumptions”. These can be anything from:

  • Services will operate 24×7 with no special considerations for weekend or UK bank holidays.
  • Point to Point circuit between client data centres provided under hosting contract with third party supplier
  • And everything in between

2 – You can agree to disregard terms.

In the last paragraph above, I mention compliance frameworks. These are specialist procurement frameworks where suppliers can bid for their company to be ‘present’ in the approved suppliers list. These frameworks come with bespoke small print that all suppliers need to agree to at the outset.

That doesn’t mean to say that there will never be any wiggle room for alterations.

When new tenders are presented on the framework for the suppliers to provide costed solutions against, there is also the option for both parties to agree to changes in definitions.

This can fall as part of the discovery process, which happens before a tender announcement has been made by the client. In these situations, a definition update form is released with the standard tender information that supersede the definitions in the standard documents.

Changes can be made during the tender process by making use of the Clarification Question timeframe. Usually this is 2 weeks from when the tender is released. Updates to definitions would follow a different format to general questions and would normally follow a clarification question.

Example
CQ – Would the council include general plumbing services in their description of “blocked drain repair”?
Response – No
CQ2 – As the tender includes provision for both domestic and mains waste water repair it if difficult to assume the volumes of plumbing work needed.

To save the council money, can the council agree to the definition of “blocked drain repair” to pertain to the removal of the blockage only. Plumbing services would then be agreed on an adhoc basis as per the rate card in Appendix A of the response.

In this example, it would allow the suppliers to remove all plumbing costs from the response making them more cost effective. Although if a drainage company also had a group of plumbers on hand to do all of the general plumbing services, then they would want plumbing services to be INCLUDED… so its really important to know what you are asking for and why.

3 – Yes, as per criteria

In the world of saying yes, but only when a certain situation is met… this also applies for public sector contracts. The largest business risk to any company looking to respond to public sector contracts is over committing and under delivering. Public Sector is a small world, and word spreads quickly.

When considering what your business is and the services it provides, there are likely to be variations that simply don’t go together. Such as having a 3.5 second 0-60mph car that is also fully electric and costs £20k. It is far more likely that you will be able to find a service that meets two of the three criteria. When the client defines the order of importance, then you the supplier are able to respond.
Yes you can have superfast broadband in your area, but there is currently no capacity and your alternative options are A B and C.
Yes you can have a new path installed here but once we broke ground we found all these tree roots so now this is a hand dig job and will cost £XXX more.

When we are asked if the services that we are selling are available, we often reply with YES and forget to note that it is not available across the board in every home, premises or location. It is therefore advised to include caveat about survey or availability.
Such a caveat allows both parties the option to reconsider the service if new information is uncovered that makes the current service option, nonviable.
Just because it’s me… here’s the caveats for you to use

  • Pricing Assumption – Commercials are subject to survey and local availability
  • Exclusion – Some services may not be available in area, or services may be dependent on local infrastructure and may not be available at the time of order
  • Within response – Based on our information at present, these services are available. Surveys will be initiated if CompanyX is awarded preferred supplier to confirm availability.

When you’re growing company and you get awarded that amazing preferred supplier status, you feel like you are on cloud nine. You’ll say and do anything to keep that contract.

What if you could keep that contract without bending yourself out of shape? Without taking on to much business risk to service that contract?
Then I implore you to consider your small print. It is something that is all to often forgotten about and it can be the saver of your contract, brand and reputation within your industry.

If you are new to tendering in the public sector, why not check out my free resourcesHERE.
There are far too many industries to list out and provide examples for, and if you would like Tender Response to help you with some small print, why not grab some time with one of our consultants who can help? Click here to find a time HERE.

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