State Aid? State What?!

Do you need to think
about State Aid risk on
your procurement project?

Make sure you know what
to look out for with our
handy new guide
from our state aid experts.

Looking to challenge a procurement decision?

Suppliers wishing to challenge have only a short time frame in which to act. Click here for our useful guide.

Which Regulations do you need?

To get up to speed with the various new procurement law regulations, please click below;

> Concession Contracts Regulations 2016 

> Utilities Contracts Regulations 2016

> Public Contracts Regulations 2015 

If you're not sure which regulations apply, click here.

Pre-qualification (PQQ)

In these questions and answers, we assume that the procurement is regulated by the Public Contracts Regulations 2006.
I have heard that there is now a prescribed form of PQQ for central government bodies - is this right?
Yes, in December 2010 the OGC/Cabinet Office issued a new requirement for all central government departments to include certain core questions in PQQs, which was then further updated in July 2014. You can access the guidance here.
Is there a requirement to publish our PQQ anywhere?
If your organisation is part of central government (including departments, their agents, agencies, all non-departmental public bodies, trading funds and National Health Service bodies) and the value of the contract is over £10,000, then the contract will be subject to the Government's new transparency regime. Among other things, this requires tender documents (ie, the OJEU advert, the PQQ, the ITT) to be published on a "Contracts Finder" portal at the appropriate stage of your procurement process. Please see our section on questions and answers relating to transparency for more information.
Do we need to disclose the selection criteria we intend to use at PQQ stage in the tender documentation?
There is no requirement in the Regulations to do so. However, guidance published by OGC/Cabinet Office and recent case law suggests that the best and most transparent practice is to disclose selection criteria in advance. We would advise doing so.
Do we need to disclose our PQQ scoring methodology/weighting system in the tender documentation?
There is no requirement to do so in the Regulations themselves. However guidance published by the OGC/Cabinet Office suggests that disclosure is best practice and it helps to ensure that the process is fully transparent.
What criteria can we use at PQQ stage?
Contracting authorities should consider the specific reasons for exclusion set out in Regulation 23 (eg, various criminal convictions; insolvency). Contracting authorities may then use criteria which fall into one of the following categories: (1) economic and financial standing (Regulation 24); and (2) technical or professional ability (Regulation 25). Criteria which relate to the solution the supplier will provide for this particular requirement, or the amount which the supplier will charge for this particular requirement, are not appropriate for the PQQ stage.
Can we use third party financial checks to assess suppliers?
Yes, but only as part of the assessment process, and you should ensure that suppliers are made aware of your intention to use such checks. Financial checks should not be the only basis on which financial standing is assessed.
We ask suppliers for copies of recent accounts but do not really read them. Is this okay?
No. Information should only be requested at PQQ stage if it will actually be used as part of the selection process.
Can we reject a bidder that plans to form a consortium or to sub-contract?
No, but you can ask questions about the proposed consortium/subcontractor and the proposed supply chain.
How much discretion do we have to deselect bidders at PQQ stage?
Contracting authorities should only deselect bidders if they do not comply with the published selection criteria; de-selection must not be arbitrary. Where stated in the OJEU notice, the contracting authority can limit the number of bidders invited to participate in the ITT stage.
How many bidders do we need to send the ITT to?
In the restricted procedure, at least five (assuming five or more suitable suppliers respond). You should ensure that the OJEU notice states any maximum number to which you are proposing to send the ITT, and the criteria to be used to limit the number selected. In the negotiated and competitive dialogue procedures, the invitation to negotiate and invitation to participate in dialogue respectively should be sent to at least three bidders.

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Our experienced lawyers provide training on the procurement Regulations to both national and local public sector organisations. This includes the option to undertake training at your premises for a nominal charge.

Call us on 0344 880 2963 or contact any member of our team to find out more details.