This scenario can be problematic as there are only limited grounds upon which an authority is able to exclude a candidate on the basis of prior poor performance (see our response to question 3 above). However, that is not to say that an authority cannot take previous experience into account as part of identifying the most economically advantageous tender, albeit this would need to be considered carefully.
We have seen scenarios where an authority has required candidates to list relevant contract examples during the selection stage, in tandem with reserving the right to verify the information provided as part of the written response with customer staff. While this could enable the authority to take the outcome of such ‘verification’ into account as part of determining the final score, this would of course be based on a subjective opinion of the supplier’s performance and therefore could be open to challenge by the incumbent. This approach also assumes that the incumbent would list the current contract as a contract example within its selection questionnaire response.
There may be other practical measures which the authority could consider, such as following any mechanisms contained within the current contract to monitor/challenge performance issues. Again, this may assist in reducing any perceived subjectivity if the authority did wish to consider exclusion under Regulation 57(8)(g) of the Public Contracts Regulations 2015.