Unconscious Bias in Tender Assessment
“Unconscious bias is when we make judgments or decisions on the basis of our prior experience, our own personal deep-seated thought patterns, assumptions or interpretations, and we are not aware that we are doing it.”
Professor Uta Frith
I’ve been spending the last few days getting to grips with the new Procurement Act 2023, ahead of it coming into force later in the year. Lots of YouTube videos from those helpful people at the Government Commercial Function (you should check out the Procurement Knowledge Drops at https://www.gov.uk/guidance/the-official-transforming-public-procurement-knowledge-drops which really are very good) and a good old fashioned trawl through the Act itself.
So where do we start? Well, how about Clause 12 of the Act which sets out the objectives. I have highlighted the relevant text.
Clause 12: Covered procurement: objectives
(1) In carrying out a covered procurement, a contracting authority must have regard to the importance of—
a) delivering value for money;
b) maximising public benefit;
c) sharing information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions;
d) acting, and being seen to act, with integrity.
(2) In carrying out a covered procurement, a contracting authority must treat suppliers the same unless a difference between the suppliers justifies different treatment.
(3) If a contracting authority considers that different treatment is justified in a particular case, the authority must take all reasonable steps to ensure it does not put a supplier at an unfair advantage or disadvantage.
(4) In carrying out a covered procurement, a contracting authority must—
a) have regard to the fact that small and medium-sized enterprises may face particular barriers to participation, and
b) consider whether such barriers can be removed or reduced.
Clause 23 (Award Criteria) sets out the need to have in place an “assessment methodology” that sets out how tenders will be assessed against the award criteria. Some of use already do this, working within the existing regulations but this is an explicit welcome addition. There is much greater emphasis on the assessment under the new Act, because of the need to publish an “Assessment Summary” (clause 50) to each tenderer, prior to award. This will be quite a task to do and places much more responsibility on the ”Assessor”.
It is probably worth at this point, explaining that the terminology has changed. Hence “Evaluation” becomes “Assessment” and “Evaluator” becomes “Assessor” and so on. Anyway, back to role of the Assessor (Evaluator!) and the impact of unconscious bias.
Having recently qualified as an Adjudicator, I am all too aware of the danger of bias. In my role as an Adjudicator, if there is any hint that I have applied bias in my decision making, then a party may challenge my decision on the basis that I may have breached the rules of natural justice. The decision is therefore null and void. Turning now to the role of the Assessor in a public procurement. It is often too easy to apply bias in making an assessment. Typically, we might expect to hear comments in the “Assessment Theatre” such as:-
“I know they don’t do that.”
“I had them on a job recently, and they were awful.”
“Well, we know they do that because they currently work for us.”
“These guys are really good. They won’t let you down.”
See? Observations based on prior experience. It is very easy to have thoughts in your head about a supplier, even before you turn and read the first page of their 221 page response! And I challenge anyone to not have had those thoughts when they evaluate. Or how about that time at an industry conference when the supplier blanked you at the hotel bar and didn’t buy you a drink. That memory is deeply lodged in the sub-conscious.
Managing unconscious bias is really hard. Thankfully, help is at hand and by adopting some good, sound principles, assessments can be undertaken fairly, transparently and objectively. Whilst the Act provides what the expectation is, it won’t tell you how to deliver against that expectation. That’s the job of practitioners like me. So, here goes. Some key tips and recommendations to ensure that unconscious bias doesn’t impact on your tender assessment.
Assembling the Assessment Team – First and foremost, it is important to assemble the right team. And when I say “right”, I mean, those with the relevant competencies to undertake the assessment. They should have good subject knowledge of what they are evaluating. Ideally, I personally believe that the assessor should belong to a professional body, to which they will already have a duty to act with integrity, one of the key objectives under the new Act;
Training the Assessment Team – Following on from point (1), it is also worth providing training to the Assessment Team. This is particularly helpful to those who haven’t been involved in assessments before, or who lack experience. Some assessors may have great subject knowledge experience, but they might not be so adept at articulating the supporting narrative to an assessed score. In addition, the training can specifically address the issue of unconscious bias and provide guidance on how to mitigate the risk of it impacting the assessment;
Mix the Team Up – Consistency is key in the assessment process. In most cases, the same assessor is evaluating each tender. Any variance from this is risky, due to each assessor interpreting things in a different way. This is why we typically see an assessment team, who all assess the tender and then come together at the end to share scores and then agree, by consensus, an overall score. To mitigate the risk further, it is not uncommon for additional subject matter experts to focus on one or two questions only, but in each response. They too form part of the overall assessment team and would participate in the final consensus scoring;
Clear and concise Award Criteria – Before a tender response is even assessed, the risk of unconscious bias can be addressed at the design stage. By keeping the award criteria simple and objective, will mitigate the risk of a subjective mindset coming into play. For example, use signposting in the question to help the tenderer frame the response, so that they follow the same format. Limit the word/page count and keep things as concise as possible. It may not eliminate unconscious bias, but it will reduce the likelihood of it;
Conflicts of Interest – One of the key features in the new Act is the requirement to prepare a “Conflicts Assessment” (Clause 83) which notes any potential conflicts of interest. This must be maintained and updated throughout the procurement. This measure will of course eliminate the direct risk of an Assessor who may have an interest in the procurement outcome. It won’t deal with unconscious bias because any individual who is conflicted, is unlikely to participate in the assessment. That said, this requirement will mitigate many risks;
Independent Moderation – I have undertaken the role of “Moderator” on many procurements. My role as the Moderator is to facilitate discussion amongst the individual assessors and by challenging their score, help the team to agree, by consensus, a final score. The process often involves opening up the tender responses and reviewing again with the team and asking questions around why an assessor may have awarded a particular score. By being independent and holding a professional qualification, provides assurance that the assessment is being conducted fairly and with integrity;
Blind Assessment – The only real way to mitigate almost entirely, the risk of unconscious bias is to ask for “blind bids”. This way, there is no mark or indication of who the response is from and the procurement administrator will simply distribute the tenders on the basis of Tenderer A, Tenderer B and so on. There are huge advantages in this approach as it is probably, the only way in which unconscious bias can be virtually eliminated. As you can see, I have used the word “virtually”, because, despite a bid being blind, it is not uncommon for an assessor to take an educated guess as to who the bid is from. For example, the tenderer may cite a particular system or process in their response that the assessor is familiar with. At this point, unconscious bias could well come into play.
Just remember, a poor tender assessment is far more likely to lead to a challenge. Adopting best practice, as set out above, is one way to mitigate the risk of challenge. Unconscious bias is there in all of us. However, by adopting the recommendations set out above, will help to mitigate it and lead to fairer outcomes for suppliers who invest huge amounts of resource into responding to tenders.
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Neil Thody is a Fellow of the RICS, leading procurement specialist (MCIPS), CEDR/RICS Mediator, RICS Adjudicator and Independent Adviser, working with clients across multiple sectors.