Public procurement: selection (SQ) stage

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

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.

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. 

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. 

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.

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.

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.

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. 

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.

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”.