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> Concession Contracts Regulations 2016 

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> Public Contracts Regulations 2015 

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Selection stage

In these questions and answers, we assume that the procurement is regulated by the 2015 Regulations.
I heard that there is now a prescribed form of PQQ - is this right?
Yes, Regulation 107 requires you to have regard to statutory guidance in relation to over-threshold procurements (except for procurements of clinical health services for the purposes of the NHS). This guidance sets out a standard form PQQ and requires the reporting of any deviation from it to the Mystery Shopper service within 30 days of the PQQ being made available.
Do we have to use the Cabinet Office PQQ?
Yes. It is possible to deviate from the core questions included in it, but this will need to be reported to the Mystery Shopper service as a "reportable deviation", in accordance with the guidance.
Separate PQQ stage for under-threshold contract - No more possible?
Yes, Regulation 111 states that, except for procurements of clinical health services for the purposes of the NHS, it is no longer possible to hold a separate selection stage for an under-threshold contract. Note that the threshold here for works and light touch regime contracts, for the purposes of Regulation 111 only, is £111,676 for central government bodies and £172,514 for other contracting authorities.
Can I do financial suitability checks in an under-threshold procurement?
Yes, you can. To quote from the guidance on this, "as part of their ITT contracting authorities may, if they wish: (1) apply the “pass/fail” mandatory and discretionary criteria as set out in Clause 23 of the Public Contracts Regulations 2006, (2) undertake a financial check. This should be conducted in line with the general principles set out in PPN 02/13 supplier financial risk issues, and (3) where the capability of an individual is essential to the delivery of the contract, for example, the provision of consultancy, CVs or references may be requested to assure the credibility of delivery as part of assessing quality at the award/ITT stage.

For consistency, if the authority wishes to assess supplier suitability as part of their advert or ITT the authority should select from the bank of questions contained in the supplier suitability check, but not deviate from the wording in these questions. Any questions selected must be relevant and proportionate. Contracting authorities may continue to use the industry standard PAS91 for works contracts that are above the EU threshold for goods and services."
Is there a requirement to publish our PQQ anywhere?
Yes - the PQQ forms part of the "procurement documents" and as such will need to be available electronically from the date of the OJEU advertisement.
Shall we disclose our PQQ scoring system in the tender documentation?
Case law suggests that this is necessary in order to create transparency, and the Cabinet Office guidance states that "The contracting authority must ensure that full details including scoring for each question, weightings and any ‘pass mark’ or minimum threshold for selection are made known to the suppliers at the same time that the PQQ/ selection questions are issued. In addition, if certain questions are sufficiently critical that an unsatisfactory answer may lead to exclusion, irrespective of the score on the rest of the PQQ, this should be made clear to suppliers."
What criteria can we use at PQQ stage?
The criteria that can be used are set out in the Cabinet Office PQQ. This consists of various mandatory/discretionary exclusion criteria, followed by criteria around economic and financial standing and technical and professional ability. As part of the latter there is the possibility of including project specific questions aimed at eliciting technical and professional ability, provided that these are relevant and proportionate to the procurement and are framed around the topic areas listed at Regulation 60(9)(b) – (k) and must also meet the “relevant and proportionate” test. Finally, the Cabinet Office PQQ also contains "additional modules" at sections 7(B-E), covering issues such as health and safety and environmental management - note that these must also pass the “relevant and proportionate” test before they can be included.
We ask suppliers for recent accounts but do not 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 the standard PQQ does allow you to 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, subject to the minimum number requirements set out at Regulation 65 (see next question for more detail) and to setting out in the procurement documentation the objective and non-discriminatory criteria that will be used to make this limitation in numbers.
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 objective and non-discriminatory criteria to be used to limit the number selected. In the competitive with negotiation, competitive dialogue and innovation partnership procedures, the invitation to negotiate/participate in dialogue should be sent to at least three bidders.

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> Procurement e-learning: Remedies Directive
Designed to help you recognise key risk areas in the procurement life-cycle.

> New Public Contracts Regulations 2015 webinar
Are you struggling to get a handle on the Public Contracts Regulations 2015? If so, procurement experts Greg Gibson and Helen Prandy will guide you through the key changes in the new Regulations and provide practical answers to some of the tricky issues raised. The webinar is priced at £49 + VAT.

* Mills & Reeve LLP receives a share of the course fees from BuiltIntelligence to reflect our contribution to the course content.