In May 2019, the NSW government published the draft Interactive Tendering Guidelines. They were prepared for the Construction Leadership Group (CLG) to inform both government and industry professionals of the best practices for interactive tendering.

The interactive tendering guidelines aim to optimise the procurement process within NSW.

The essentials of the proposed Guidelines are outlined below.

What is an Interactive?

An Interactive is a process within the tendering process, typically in the Request for Proposal (RFP) or Expression of Interest (EOI) stage.

They provide a forum for interaction between Proponents and the Project Team.

Through site inspections, Q&A processes, and other interactive mediums, the Proponent and the Project Team can develop the best approach to the procurement and meet the requirements more closely.

With the increased communication, transparency and better coordination, Proponents are able to improve the time and cost efficiency of the projects. Furthermore, by improving private sector proposals and promoting collaborative exchange, the State can achieve the best value outcome, minimising the financial burden on taxpayers.

Interactives Structure

There is no uniform approach to Interactives, each one should be bespoke to the procurement and identify the particular obstacles that need to be overcome.

The only exception is that all Incentives must provide each Proponent with equal opportunity and information.

Typically Interactives address the:

  1. design and technical issues;
  2. legal framework and risk profile; and
  3. commercial issues.

The majority of Interactives should be led by Proponents, allowing them to test their solutions against the particular obstacles identified by the Project Team.

When are Interactives used?

Interactives are typically used on large scale construction projects and public-private partnerships.

That’s not to say a number of government jobs couldn’t benefit from them!

As noted, there is no universal approach to the structure or components of an Interactive so they can be moulded to the specific elements of each procurement.

They do, however, require significant resources and can pose significant costs for both the State and Proponents. Therefore, a few focused Interactives can be effective for small-scale, lower-capital projects whereas an extensive schedule of Interactives would be suitable to large-scale procurements.

Interactive Tendering Process Plan (ITP Plan)

The Project Team must provide an ITP Plan for all Interactives.

The ITP Plan outlines the processes and procedures for the Proponents for all interactive elements, and provides transparency and fairness between Proponents.

Check-ins

Check-ins are supplementary forums for representatives from the Project Team and Proponents to discuss the status of a proposal. It promotes open discussion between the parties, particularly allowing the Proponent to identify risks and issues the Project Team should be aware of. A check-in operates within the probity requirements.

Confidentiality

The Project Team will treat any information provided during the Interactive as commercial in confidence if:

  1. throughout the Interactive the Proponent identifies that the information provided is proprietary; or
  2. the Project Team agrees that any of the information provided should be treated as containing proprietary information.

In the event the Project Team does not agree to treat the information as proprietary the Proponent can opt to withdraw the information.

Take Away

Interactives are a practical tool that allow the Project Team and Proponents alike to achieve the desired outcomes and meet the objectives of the project in a timely and efficient matter. They rely on transparency and communication to optimise a Proponent’s proposal and benefit both the State and Project Team.

 

If you have any questions regarding Interactive Tendering,

please contact Morrissey Law + Advisory 


 

Disclaimer: This publication by Morrissey Law & Advisory is for general information and commentary only and should not be considered or relied upon as legal advice. Formal legal advice should be sought in relation to any matters or transactions that may arise in relation with communication.