The legislation lays down rules for the 'qualification' and selection of candidates for inclusion in a tender exercise. These fall into three general areas:
- There are grounds for the exclusion of a tenderer from the taking part in a public contract. These can be thought of as 'qualification' criteria. The grounds are stated in the legislation and any tenderer in an open procedure, or applicant to one of the other procedures, must 'pass' these if it is to be considered further in the procurement process. A contracting authority can require supplies to be registered on Companies House and for services can require suppliers possess authorisation required by their country of origin to perform a service.
- The candidate's economic and financial standing. This is to ensure that candidates have the necessary economic and financial capacity to perform the contract. A contracting authority may require candidates to have a certain minimum yearly turnover (although this cannot be set at more than twice the estimated contract value except in duly justified cases); provide information on their annual accounts (maximum of last 3 years) showing the ratios, for example between assets and liabilities. If 3 years of data is not available the candidate can provide other information to prove financial standing; and have an appropriate level of professional risk indemnity insurance (or at willingness to purchase such insurance should they be successful in winning the contract. When undertaking an assessment of a candidates economic and financial standing, contracting authorities may take into consideration financial ratios although the methods and criteria for such consideration needs to be specified in the procurement documents and be transparent, objective and non-discriminatory. For this reason it is not recommended to use credit checking agencies as a way of evaluating candidates financial standing. Case law has ruled that the use of credit checking agencies does not meet the transparency principle.
- The candidate's technical and professional ability to fulfil the requirements of the contract. Regulation 60 of The Public Contracts Regulations 2015 provides an exhaustive list of means by which a contracting authority can assess a suppliers technical or professional capacity. This can include consideration of quality assurance processes, a list of previous similar contracts to establish their experience, references, educational and professional qualifications of managerial staff, environmental measures etc. For more detail on the means by which a contracting authority can assess a suppliers technical capacity, see A Guide to Managing Above EU Threshold Tenders and A Guide to Supplier Appraisal.
The minimum criteria must be stated in the contract notice published in the OJEU and/or in the contract documentation.
It is important that selection and award criteria are not confused and used at the wrong stage of the tendering process. A contracting authority generally cannot take account of a tenderer's experience, manpower, equipment or ability to perform the contract by an anticipated deadline (which are selection criteria relating to capability) as part of the award criteria. Such criteria should only be taken into account at selection stage. For procurements commenced after 26 February 2015, it is possible to include in the award criteria “organisation, qualification and experience of staff assigned to performing the contract” where the quality of the staff assigned can have a significant impact on the level of performance of the contract. Care must be taken not to duplicate any ‘staff’ related assessment undertaken at selection stage.
A Selection Questionnaire (SQ) is used to gather the information described above in order to help decide which suppliers should be selected to participate in a tender exercise. From 26 February 2015 for procurements above EU thresholds, contracting authorities should have regard to the statutory guidance concerning changes to how procurers should select suitable suppliers and administer the Selection Questionnaire. This guidance contains a standardised set of questions for use in procurements where the EU rules apply.
A copy of the Standardised Section Questionnaire
A FAQ on the Standard Selection Questionnaire.
However if a candidate provides the European Single Procurement Document instead of the evidence asked for in the SQ, then a contracting authority must accept this.
Contracting authorities can ask candidates to supply certificates but if the certificate is available for the contracting authority to access via a database or register then the candidate doesn’t have to provide but can just reference the database or register where the contracting authority can obtain it. If the contracting authority already possesses the certificate then the candidate doesn’t have to supply it again.
Number of candidates to invite to tender
The minimum number of tenderers and the objective and non-discriminatory criteria to be applied must be stated in the contract notice in the two-stage procedures, minimum numbers are as follows:
- 5 for the Restricted procedure
- 3 for the Competitive procedure with negotiation and Competitive dialogue procedure
There should be sufficient candidates invited to submit tenders to ensure genuine competition.
Where the number of candidates meeting the selection criteria and the minimum levels of ability is below the minimum number detailed above, the contracting authority may continue the procedure by inviting the candidates with the required capabilities.