Consistent conduct

Consistent conduct is one of the indicators used to calculate the zIndex score for evaluating contracting authorities.

The consistent conduct indicator penalizes contracting authorities for wasting money on tender preparation, which usually happens when the authority improperly prepares contracts or is inconsistent in its decision-making. In particular, money is wasted when:

• contracts are announced but not awarded (neither a contract award notice nor a contract cancellation notice is to be found in the Journal);
• contracts are cancelled; or
• amendments are made to contracts that have already been announced

If a contracting authority cancels or amends its tendering procedures on a regular basis, it wastes the bidders' resources as well as its own. This behaviour undermines the authority's credibility and deters future potential bidders. Formulating a tender is usually a costly affair, and the bidder's preparation costs are reflected in the final price - thus the contracting authority bears them eventually. Best practice guidelines emphasize the need for maximum investment plan transparency and predictability, in order to give all potential bidders enough time to prepare for the planned tendering procedures. When a procedure is cancelled, however, all the bidders' preparations are wasted, and the likelihood that the same bidder will participate in future tenders is considerably reduced. According to an EC study on public procurement costs, it takes a bidder on average 15 working days to prepare a bid (this time varies heavily depending on the scope of the call and the industry sector). The study also states that contracting authorities put a similar amount of work into creating the tender specification. Supposing that a tendering procedure in which four bidders are participating is cancelled, their aggregate 75 working days spent on preparation (15 for the contracting authority and 15 for each bidder) are wasted.

Similarly, if excessive amendments (measured as the number of correction notices (Corrigendum in TED terminology) attached to the contract notice) are made to the tender specification, this is also in conflict with best practice recommendations. Amendments imply that there were errors or shortcomings in the original specification, and making them prolongs the whole tendering procedure. If a contracting authority is forced to make frequent amendments (often doing so based on comments from potential bidders) this often indicates ambiguities in the authority's original specifications, and may suggest that the authority would be well advised to follow a different procedure for the case in question: a negotiated procedure with publication, or competitive dialogue. Nevertheless, if the authority has made a serious mistake, it must correct it (and postpone the deadline for receipt of tenders accordingly). This indicator only penalizes contracting authorities that have made a high number of corrections.

It is essential to allow plenty of time for bidders to draw up their tender, in particular for small and medium enterprises (European Code of Best Practices Facilitating Access by SMEs to Public Procurement Contracts). This may become difficult if the contracting authority amends the specification without also postponing the tender deadline, and such behaviour may discourage bidders from further participation.

Consistent conduct indicator is calculated on the basis of all contract notices issued by the respective contracting authority, as obtained from the Journal. Each published contract is evaluated as follows:

• a score of 1 is given to a properly awarded contract with one correction notice attached at most
• a score of 0.75 is given to contracts with two correction notices attached
• a score of 0.5 is given to contracts with three correction notices attached or if the authority needed more than 90 days to evaluate the tender
• a score of 0 is given to contracts with four or more correction notices, to cancelled tender procedures, or if no contract was awarded (i.e. where neither a contract award notice nor a cancellation notice is present in the Journal) and also if the authority needed more than 180 days to evaluate the tender.

The indicator value is computed as the contracting authority's average score for all its published contracts.

$$z_3 = \frac{\sum contract\:score}{number\:of\:contracts}$$

This indicator may penalize errors that were made prior to the reference period - usually when the contracting authority drew up its investment plan or prepared contract specifications for contracts awarded in the reference period.

• Prepare contract specifications and investment plans carefully. Well-prepared contracts do not usually require corrections or cancellation.
• Carry out some market research. As a contracting authority, you should be aware of how the item you need to purchase is usually tendered, what information bidders need in order to submit a tender for it, and how bidders calculate their price for it. If you know this, and write your tender specification accordingly, it is unlikely you will need to make any corrections to the specification, let alone cancel the tender. These details can be obtained through market research or by holding a project open day.
• Do not use only open tenders. Think about whether the competition dialogue, design contest or a negotiation procedure with publication is not more suitable type of procedure. If the subject matter of your call for tender proves too difficult to define precisely and as such you run the risk of needing to make corrections to it, or even cancel the whole tender procedure, you might consider using a procedure in which bidders are free to suggest possible solutions for your needs.