Nov 7
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Joanne Toon
New Zealand Government Procurement Rules changes - Sufficient Time
The New Zealand Government Procurement Rules are changing. The fifth edition goes live on the 1st December. While a lot of the changes are cosmetic – making the language less bureaucratic, merging rules where they were repetitious, or moving information that was in the rules into guidance, there are a few points which suppliers need to be aware of.
In this series of articles, I want to highlight some of the more significant changes for suppliers, and outline any actions which you should be doing to get ready.
Today’s article is around a minor but significant shift in the amount of time an agency has to give you to respond to a process. The Rule itself is quite long, and I've included some of the guidance for agencies as well, as it is valuable to understand in its entirety.
Rule 16: Sufficient time
Primary requirement
Application
2. Agencies must:
a. act in good faith and use sound judgement when calculating sufficient time
b. provide the same amount of time for all interested suppliers
c. provide a minimum of 20 clear business days for suppliers to respond to a Notice of Procurement.
3. Agencies must take the following factors into account when calculating sufficient time:
a. the nature and complexity of the procurement
b. the type of information and level of detail suppliers need to provide in their responses
c. the nature of the goods, services or works
d. how simple or difficult it is to describe the deliverables
e. the level of risk
f. the extent of any anticipated subcontracting or the likelihood of joint bids
g. how critical the procurement is to the agency’s success
h. the time it takes for domestic and foreign suppliers to submit tenders, particularly if you have asked suppliers to deliver hard copies
i. the impact of public holidays on suppliers.
1. Agencies must allow sufficient time for suppliers to respond to a Notice of Procurement (Rule 17).
Application
2. Agencies must:
a. act in good faith and use sound judgement when calculating sufficient time
b. provide the same amount of time for all interested suppliers
c. provide a minimum of 20 clear business days for suppliers to respond to a Notice of Procurement.
3. Agencies must take the following factors into account when calculating sufficient time:
a. the nature and complexity of the procurement
b. the type of information and level of detail suppliers need to provide in their responses
c. the nature of the goods, services or works
d. how simple or difficult it is to describe the deliverables
e. the level of risk
f. the extent of any anticipated subcontracting or the likelihood of joint bids
g. how critical the procurement is to the agency’s success
h. the time it takes for domestic and foreign suppliers to submit tenders, particularly if you have asked suppliers to deliver hard copies
i. the impact of public holidays on suppliers.
Definitions of clear business day, minimum time, and sufficient time
‘Clear business day’ means one full business day from 9am to
5pm.
‘Minimum time’ means the least amount of time, set by the Rules, that an agency must allow suppliers to respond to a particular contract opportunity.
‘Sufficient time’ means the time a government agency must give suppliers or providers to respond to a Notice of Procurement, to support:
‘Minimum time’ means the least amount of time, set by the Rules, that an agency must allow suppliers to respond to a particular contract opportunity.
‘Sufficient time’ means the time a government agency must give suppliers or providers to respond to a Notice of Procurement, to support:
- quality responses
- the integrity of the process
- the agency’s reputation as a credible buyer.
Excerpt from “Providing sufficient time” guidance
- Allow extra time if you have not included the opportunity in your Future Procurement Opportunities, are not using GETS to advertise the opportunity and not accepting responses electronically. The minimum time set out in this Rule assumes you have done all three.
Minimum
time periods for two stage procurements
When conducting a two-stage procurement process, agencies
must give suppliers a minimum of 20 clear business days to prepare and submit a
response to the Request for Tender or Request for Proposal (second stage of the
procurement).
For the Registration of Interest/Expression of Interest part
of a two stage procurement, agencies will need to ensure they allow suppliers
sufficient time to respond meaningfully given the information requested, when
determining the minimum number of clear business days they give suppliers to
prepare and submit a response.
Why this change?
The majority of this Rule matches the wording from Edition 4
of the Rules – there has always been a requirement to consider the complexity
of responding to the process when setting the deadlines for the response.
What is new here is the minimum time frame. Previously, there were different timeframes for different types of processes, with “time off for good behaviour” with different amount of days reduced depending on whether the agency had let suppliers know the opportunity was coming through an Annual Procurement Plan or Future Procurement Opportunity, whether they were making all documents available electronically (i.e. not requiring you to email them to get the documents or putting other barriers in your way), and whether all responses could be submitted electronically (through a portal or via email).
This created a huge amount of complexity for procurement teams – there was even a table in the old version of the Rules to help them work out the minimum days. And, unfortunately, I have seen many examples where agencies took the shortest minimum timeframe even without the appropriate behaviour.
Now – this has all been done away with. Each ‘main’ process (Request for Proposal / Request for Tender / Request for Quote) needs to be a minimum of twenty business days, with time added on if the best practice approaches are not followed.
For the first stages of a two stage process, the agencies are expected to use good judgement based on the complexity to determine how long the first stage will be.
What is new here is the minimum time frame. Previously, there were different timeframes for different types of processes, with “time off for good behaviour” with different amount of days reduced depending on whether the agency had let suppliers know the opportunity was coming through an Annual Procurement Plan or Future Procurement Opportunity, whether they were making all documents available electronically (i.e. not requiring you to email them to get the documents or putting other barriers in your way), and whether all responses could be submitted electronically (through a portal or via email).
This created a huge amount of complexity for procurement teams – there was even a table in the old version of the Rules to help them work out the minimum days. And, unfortunately, I have seen many examples where agencies took the shortest minimum timeframe even without the appropriate behaviour.
Now – this has all been done away with. Each ‘main’ process (Request for Proposal / Request for Tender / Request for Quote) needs to be a minimum of twenty business days, with time added on if the best practice approaches are not followed.
For the first stages of a two stage process, the agencies are expected to use good judgement based on the complexity to determine how long the first stage will be.
What does this mean for me?
You should be able to have confidence that, at the very least, you will have 20 business days to respond to a process. This allows you to approach your timeframes with more certainty.
What do I need to do now?
As with my standard advice, use the time available to you.
20 business days; four weeks – it sounds like a lot of time, but will quickly disappear when you run through your planning, writing and finalisation stages. If you don’t open the documents for two weeks, those are days you don’t get back.
The sufficient time elements of the rule have not changed – if a process is released for the minimum timeframe, but is overly complex, has a lot of documents to read or questions to answer, or falls over a public holiday period, then you are justified in asking the agency to consider extending the close date for everyone. Be clear about your reasons, and put the request in early, not two days before the deadline! The agency doesn’t have to accommodate your request, but it never hurts to ask.
20 business days; four weeks – it sounds like a lot of time, but will quickly disappear when you run through your planning, writing and finalisation stages. If you don’t open the documents for two weeks, those are days you don’t get back.
The sufficient time elements of the rule have not changed – if a process is released for the minimum timeframe, but is overly complex, has a lot of documents to read or questions to answer, or falls over a public holiday period, then you are justified in asking the agency to consider extending the close date for everyone. Be clear about your reasons, and put the request in early, not two days before the deadline! The agency doesn’t have to accommodate your request, but it never hurts to ask.
Additional Commentary
The net effect of the change is an extra five business days for
a Request for Proposal / Request for Tender (if all the best practice points
were followed), and an extra twelve business days for a one step Request for
Quote.
I am interested to see how this gets applied, particularly whether agencies start using the minimum timeframes as the new standard (which is what seemed to happen with the previous minimum timeframes). As always, sufficient time should trump minimum time!
I will be interested in feedback from bidders as to how this extra time impacts their response process - as the Rule gets implemented, please do feel free to drop me a line to discuss.
I’ll also be curious to see how agencies interpret the “additional time for not meeting best practice” requirement, as NZGP has not set any expectations on the amount of additional time. This means that, as an extreme example, an agency could release the RFP/T on GETS with no advance notice, require suppliers to email them to get the documents (with the delays involved in going through a gatekeeper), and then require all document to be sent by post, have the process open for 21 business days, and still be compliant with the letter (not the spirit!) of the Rule.
Similarly, I'll be keeping an eye on the timeframes used for the first stage of a two stage process. Agencies are allowed to use their own judgement, in line with Principle 2 of Being Proportionate and Right Sizing Procurement, which in principle I agree with - it allows for the agency to make decisions around timeframes based on the size and context of the first stage of the process, without being too constrained by specific dates. But the process still has to be fair to everyone involved!
As a side note, because GETS doesn’t sent out electronic notifications until overnight on the day a notice is published, I don’t believe the first day should ever be included in the twenty business days, even if the notice gets published before 9am. Normal text.
I am interested to see how this gets applied, particularly whether agencies start using the minimum timeframes as the new standard (which is what seemed to happen with the previous minimum timeframes). As always, sufficient time should trump minimum time!
I will be interested in feedback from bidders as to how this extra time impacts their response process - as the Rule gets implemented, please do feel free to drop me a line to discuss.
I’ll also be curious to see how agencies interpret the “additional time for not meeting best practice” requirement, as NZGP has not set any expectations on the amount of additional time. This means that, as an extreme example, an agency could release the RFP/T on GETS with no advance notice, require suppliers to email them to get the documents (with the delays involved in going through a gatekeeper), and then require all document to be sent by post, have the process open for 21 business days, and still be compliant with the letter (not the spirit!) of the Rule.
Similarly, I'll be keeping an eye on the timeframes used for the first stage of a two stage process. Agencies are allowed to use their own judgement, in line with Principle 2 of Being Proportionate and Right Sizing Procurement, which in principle I agree with - it allows for the agency to make decisions around timeframes based on the size and context of the first stage of the process, without being too constrained by specific dates. But the process still has to be fair to everyone involved!
As a side note, because GETS doesn’t sent out electronic notifications until overnight on the day a notice is published, I don’t believe the first day should ever be included in the twenty business days, even if the notice gets published before 9am. Normal text.
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