Will the new Bill/Act make the PCR 2015 redundant?

Yes, the PCR 2015 will be replaced by the new Act (expected to be later in 2023).

How do you (or indeed can you) account for the benefits an incumbent has? I am making reference specifically to large IT procurements whereby the incumbent has an advantage in that there are no implementation costs? Also, what's a good way to deal with evaluation of the mobilisation stage costs when the transition period is likely to be very long due to the nature/complexity of the contract? The incumbent's costs will clearly be near to nil for that whereas the other bidders will need to charge something.

The management of an incumbent advantage must be looked at on a case-by-case basis. In some cases, it may be possible to review the evaluation methodology so as to not over-emphasise the advantage that an incumbent supplier has. Any changes to the required service will also mean that the incumbent will inevitably have some implementation costs.

Are there any GDPR implications of requesting who a person is that may be delivering a service at the Award Criteria stage?

It would be problematic for the authority to request a particular named individual to supply the service as part of the award criteria, as this would foreclose any competitive process at all. However, it could require the individual to have e.g., X years’ experience or provide evidence of a track record, in a procurement where it could be shown that this would be linked to the quality of the tender (e.g., a consultancy contract). In terms of the supplier’s response, if the supplier gives names and details of its personnel to the contracting authority, it should ensure that it has the authority and necessary consents (where consent is required, there may be other justifications) to provide such personal data to the contracting authority. Ideally, the procurement conditions of participation should include conditions that: The bidder agrees to personal data submitted by the bidder being collected, held and used by the contracting authority for the purpose of administering the procurement and for contract management of any contract awarded. The bidder confirms that it has complied with its obligations under data protection legislation to enable it to disclose the personal data to the contracting authority.

Do the requirements around separating selection and award criteria apply to below-threshold procurements in the same way as above-threshold procurements?

No, in the sense that below-threshold procurements are not regulated. However, it would nonetheless be a helpful distinction to maintain if you are running a below-threshold procurement.

Question please regarding the earlier suggestion of amending the non-collusion declaration for incumbents. Do you see this happening much in practice? I can see the rationale, but on the other hand excluding the current operational team from involvement with the bid team may result in a worse bid.

The incumbent may still benefit from the experience gained as part of delivery of the contract. In practice, it is often the case that the incumbent bidder chooses to have key members of the operational team move over to the bid team for the purposes of the procurement. This allows separation and allows the operational team to get on with delivery of the contract, but also allows the incumbent to benefit from the experience gained by the organisation.

Do we need to be clear and state that a set number of bidders can be taken through to the tender stage. Or can we say "min of x and max of y"?

You can do this provided that the mechanism for determining how many in the range are selected is clearly transparent in the procurement documents. The minimum number (“X”) would need to be a minimum of 5 bidders in a restricted process and a minimum of 3 in a competitive dialogue/competitive procedure with negotiation. You would need to be clear and transparent about how you would exercise that discretion within the stated range. There must be some clear rationale beyond the authority deciding to take through “Y” number of bidders on a whim.

How about where there is a tie break at the award stage? Can we, for example, say we will go with the least expensive bid?

You can include any tie break mechanism that is objective and transparent, and that does not allow the authority the freedom to decide “on a whim” which bidder should win. Whatever mechanism you use needs to be clearly set out in the procurement documents so that bidders may understand how it works.

Do we need to ensure question weightings are proportionate, I assume so. For example, if we had 100% and had a question weighted at 40%, would this be seen as too high a weighting for a single question?

We assume the question is around award criteria at the tender evaluation stage (rather than in the evaluation of the SQ at the selection stage, where it is unusual to see % weightings). Whether the 40% the question imagines would be a problem would depend on the nature of the requirement; it could well be appropriate if the question concerned a key requirement. There is a duty at Regulation 18 to conduct the procurement in a proportionate manner, which extends to the setting of criteria and related weightings.

I have multiple suppliers (say, 9) that complete the SQ. In my criteria, I have a mandated criterion which says: "The Supplier (Offeror) has completed the Standard Selection Questionnaire (SQ) fully with satisfactory answers" and this is assessed PASS / FAIL – is this OK?

We would need to see this drafting within the context of the relevant documents to give you a full response. However, we do see a potential difficulty here since the criterion is silent as to how the “satisfactory answers” will be assessed and what will amount to “satisfactory”. There is a danger that bidders may be failed and then challenge on the basis that the SQ evaluation was not clearly understandable to the Reasonably Well Informed and Normally Diligent Tenderer (the RWIND tenderer) – see the slides/recording for our comments on that.

Meant to say my specific point above is around Assessment of Standard Selection Questionnaire (SQ) - Parts 1, 2 and 3 of the SQ must be completed fully with satisfactory answers. If any part of this Stage 3 Assessment of SQ is not satisfactory the Suppliers will be removed from the tender and not be awarded onto the framework. Completion of the SQ will be completed in the tendering portal.

We think this question is a follow up to the previous question above. As mentioned above, the potential issue is that it is not clear what constitutes “satisfactory answers”.

Public procurement: selection (SQ) stage

The selection (SQ) stage of public procurement always throws up many queries from our clients, not least as selection stage difficulties do regularly form the basis of a legal challenge.

Below you can watch a video recording and read some questions and answers from the webinar.

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Our collection of webinars where our procurement experts address public procurement in the UK, focussing on topics that those working with public procurement need to consider.

Key questions and answers

A number of questions were raised during the session, which we have anonymised and answered below.

Please note that the responses provided represent the general views of the public procurement team at Mills & Reeve, however they should not be relied on or treated as a substitute for specific advice relevant to a particular scenario/matter. If you require specific legal advice, our procurement lawyers would be happy to discuss this further with you.

In this note, “PCR 2015” refers to the Public Contracts Regulations 2015, as amended and references to numbered regulations are to the PCR 2015.

Will the new Bill/Act make the PCR 2015 redundant?

Yes, the PCR 2015 will be replaced by the new Act (expected to be later in 2023).
How do you (or indeed can you) account for the benefits an incumbent has? I am making reference specifically to large IT procurements whereby the incumbent has an advantage in that there are no implementation costs? Also, what's a good way to deal with evaluation of the mobilisation stage costs when the transition period is likely to be very long due to the nature/complexity of the contract? The incumbent's costs will clearly be near to nil for that whereas the other bidders will need to charge something.

The management of an incumbent advantage must be looked at on a case-by-case basis. In some cases, it may be possible to review the evaluation methodology so as to not over-emphasise the advantage that an incumbent supplier has. Any changes to the required service will also mean that the incumbent will inevitably have some implementation costs.
Are there any GDPR implications of requesting who a person is that may be delivering a service at the Award Criteria stage?
It would be problematic for the authority to request a particular named individual to supply the service as part of the award criteria, as this would foreclose any competitive process at all. However, it could require the individual to have e.g., X years’ experience or provide evidence of a track record, in a procurement where it could be shown that this would be linked to the quality of the tender (e.g., a consultancy contract).

In terms of the supplier’s response, if the supplier gives names and details of its personnel to the contracting authority, it should ensure that it has the authority and necessary consents (where consent is required, there may be other justifications) to provide such personal data to the contracting authority. Ideally, the procurement conditions of participation should include conditions that:
- The bidder agrees to personal data submitted by the bidder being collected, held and used by the contracting authority for the purpose of administering the procurement and for contract management of any contract awarded.
- The bidder confirms that it has complied with its obligations under data protection legislation to enable it to disclose the personal data to the contracting authority.
Do the requirements around separating selection and award criteria apply to below-threshold procurements in the same way as above-threshold procurements?

No, in the sense that below-threshold procurements are not regulated. However, it would nonetheless be a helpful distinction to maintain if you are running a below-threshold procurement.
Question please regarding the earlier suggestion of amending the non-collusion declaration for incumbents. Do you see this happening much in practice? I can see the rationale, but on the other hand excluding the current operational team from involvement with the bid team may result in a worse bid.

The incumbent may still benefit from the experience gained as part of delivery of the contract. In practice, it is often the case that the incumbent bidder chooses to have key members of the operational team move over to the bid team for the purposes of the procurement. This allows separation and allows the operational team to get on with delivery of the contract, but also allows the incumbent to benefit from the experience gained by the organisation.
Do we need to be clear and state that a set number of bidders can be taken through to the tender stage. Or can we say "min of x and max of y"?

You can do this provided that the mechanism for determining how many in the range are selected is clearly transparent in the procurement documents. The minimum number (“X”) would need to be a minimum of 5 bidders in a restricted process and a minimum of 3 in a competitive dialogue/competitive procedure with negotiation. You would need to be clear and transparent about how you would exercise that discretion within the stated range. There must be some clear rationale beyond the authority deciding to take through “Y” number of bidders on a whim.
How about where there is a tie break at the award stage? Can we, for example, say we will go with the least expensive bid?

You can include any tie break mechanism that is objective and transparent, and that does not allow the authority the freedom to decide “on a whim” which bidder should win. Whatever mechanism you use needs to be clearly set out in the procurement documents so that bidders may understand how it works.
Do we need to ensure question weightings are proportionate, I assume so. For example, if we had 100% and had a question weighted at 40%, would this be seen as too high a weighting for a single question?

We assume the question is around award criteria at the tender evaluation stage (rather than in the evaluation of the SQ at the selection stage, where it is unusual to see % weightings). Whether the 40% the question imagines would be a problem would depend on the nature of the requirement; it could well be appropriate if the question concerned a key requirement. There is a duty at Regulation 18 to conduct the procurement in a proportionate manner, which extends to the setting of criteria and related weightings.
I have multiple suppliers (say, 9) that complete the SQ. In my criteria, I have a mandated criterion which says: "The Supplier (Offeror) has completed the Standard Selection Questionnaire (SQ) fully with satisfactory answers" and this is assessed PASS / FAIL – is this OK?

We would need to see this drafting within the context of the relevant documents to give you a full response. However, we do see a potential difficulty here since the criterion is silent as to how the “satisfactory answers” will be assessed and what will amount to “satisfactory”. There is a danger that bidders may be failed and then challenge on the basis that the SQ evaluation was not clearly understandable to the Reasonably Well Informed and Normally Diligent Tenderer (the RWIND tenderer) – see the slides/recording for our comments on that.
Meant to say my specific point above is around Assessment of Standard Selection Questionnaire (SQ) - Parts 1, 2 and 3 of the SQ must be completed fully with satisfactory answers. If any part of this Stage 3 Assessment of SQ is not satisfactory the Suppliers will be removed from the tender and not be awarded onto the framework. Completion of the SQ will be completed in the tendering portal.

We think this question is a follow up to the previous question above. As mentioned above, the potential issue is that it is not clear what constitutes “satisfactory answers”.

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