Byte Size Procurement Updates – The Selection Questionnaire ("SQ") Byte 1 - Overview

This is the first in a series of short "SQ Bytes" looking at the Selection Questionnaire (SQ) issued by the Crown Commercial Service (CCS).

This SQ Byte 1 provides an overview of the structure and content of the SQ and statutory guidance.

SQ Byte 2 looks at the scope and coverage of the SQ, including commentary on works contracts and the light touch regime.

SQ Byte 3 moves on to issues arising when using the SQ. It provides more detail of the content of the SQ, and a short explanation of the concept of reliance on capacities of third parties to satisfy selection criteria.

SQ Byte 4 covers when and how you can amend the SQ.

SQ Byte 5 looks in more detail at the standard questions in Parts 1, 2 and 3 of the SQ.

SQ Byte 6 considers the interaction between the SQ and the ESPD.

SQ Byte 7 on self-cleaning, concludes the series.

Overview

On 26 September 2016 the CCS published PPN/Action Note 8/16 (PPN 8/16) launching the new standard Selection Questionnaire for use in supplier[1] selection in procurements above the relevant EU thresholds. PPN 8/16 includes both the SQ and statutory guidance.

The statutory guidance is issued under powers set out in Regulation 107 of the Public Contracts Regulations 2015 (as amended) (PCRs).

You can download the PPN/Action Note from the CCS website:

https://www.gov.uk/government/publications/procurement-policy-note-816-standard-selection-questionnaire-sq-template

The SQ replaced the standard Pre-Qualification Questionnaire and the statutory guidance published in 2015.

All contracting authorities in England (and some in Wales and Northern Ireland) were required, with immediate effect, to:

• Stop using the standard Pre-Qualification Questionnaire for the supplier selection stage
• Start using the SQ and comply with the new statutory guidance and process.

The CCS explains that the new SQ and modified process is aimed at ensuring a simpler and more consistent approach to supplier selection across the whole of the public sector.

The CCS also confirms that the SQ is compliant with the European Single Procurement Document (ESPD) and the amended rules on selection of suppliers.

Self-certification and supporting documents

At an EU level the most significant change introduced by the ESPD, which is reflected in the SQ, is the concept of self-certification by suppliers in relation to grounds for exclusion and selection criteria.

The concept of self-certification of grounds for exclusion is not new to UK authorities. It has been common practice to accept, as part of the PQQ, a form of declaration from suppliers in which they confirm that the grounds for exclusion do not apply.

Self certification of compliance with selection criteria – economic & financial standing and technical and professional ability and experience – has been less common in practice in the UK. Self certification of compliance with selection criteria was, however, an option in the standard PQQ issued in 2015.

The general presumption under the PCRs and in the SQ is that supporting documents (1) confirming that grounds for exclusion do not apply and (2) demonstrating compliance with selection criteria will only be required from the supplier who submits the most economically advantageous tender to whom the contracting authority wishes to award the contract. Contracting authorities therefore carry out the necessary checks of supporting documents close to the end of the procurement procedure and in respect of the successful supplier only.

The PCRs permit contracting authorities to ask for supporting documents from suppliers at an earlier stage in the process where "this is necessary to ensure the proper conduct of the procedure" (Regulation 59(8)). Paragraph 40 of the statutory guidance suggests that it might be necessary in two stage procedures to ask for supporting documents before the award stage. An FAQ expands on this - CCS says "For multi-stage procurement, we recommend that you verify the evidence before taking suppliers on to the next stage".

Recital 84 of the Directive[2] explains that asking for supporting documents earlier may be necessary where there is a shortlisting process. This is presumably to allow a contracting authority to properly determine the best qualified candidates in order to draw up a shortlist. Recital 84 also suggests in this context that early submission of supporting documents may be justified to avoid the situation where suppliers who are invited to tender later prove unable to submit the supporting documents, thus depriving another supplier of the chance to participate.

When supporting documents are required at an earlier stage in the process than final award this must be clearly explained in the procurement documents. Ideally the explanation will cover both when and why the supporting document is required at an earlier stage in the process.

Content of PPN 8/1

The main content of the PPN is contained in Annexes A to D

 

Statutory Guidance - Annex A

The statutory guidance is set out in Annex A.

Note on compliance with Statutory Guidance Regulation 107 of the PCRs provides that contracting authorities "shall have regard to any guidance issued by the Minister for the Cabinet Office in relation to qualitative selection of economic operators". In this context, qualitative selection covers both exclusion and selection. Regulation 107 specifically refers to guidance which may refer to the use of questionnaires and the assessment of information relevant to qualitative assessment. It is very important to read the Statutory Guidance in Annex A carefully, to ensure compliance. Contracting authorities must have regard to the statutory guidance. If a contracting authority decides not to follow the statutory guidance then it must have a clearly documented and appropriate reason for doing so. Failure to have regard to statutory guidance could open up the possibility of legal challenge.

The statutory guidance includes an introductory background section and a summary of key points including when to start using the SQ (immediately), requirements to inform suppliers about how they can access the SQ, self-cleaning, self-certification and acceptance of the EU ESPD.

There are general rules covering use of the standard SQ and then guidance on each of the 3 parts of the SQ (see below).

Selection Questionnaire - Annex B

The SQ, with an introductory explanation and notes for completion, is set out in Annex B.  It can be downloaded from the CCS website in both Word format and Open Document (ODT) format.

The SQ is divided into 3 parts.

Exclusion Grounds – Annex C

Annex C lists the mandatory and discretionary grounds for exclusion. The list is a paraphrased version of the grounds for exclusion listed in Regulation 57.

CCS Frequently Asked Questions (FAQs) – Annex D

Stop press: Selection Questionnaire: Frequently Asked Questions 8 February 2017 ("FAQs 8 February 2017") Stop press: 8 February 2017 – the CCS has published a new "Selection Questionnaire: Frequently Asked Questions" document on the PPN website. There is no explanation accompanying the FAQ document, in particular whether it is intended as a replacement for Annex D FAQs in PPN 08/16. It appears that it is a replacement as it repeats, with some amendments, the Annex D FAQs and adds new questions. This SQ Byte 1 has been updated after its initial publication on 6 February 2017. BB SQ Bytes 2 to 7 will refer to the FAQs issued on 8 February 2017.

Annex D: There are also 10 FAQs, with CCS's answers, in Annex D. It is not clear whether these have the status of statutory guidance.

The 10 FAQs relate to: the ESPD, the difference between the SQ and the ESPD, whether a contracting authority can add its own questions to the SQ, how to shortlist in a restricted procedure, when a contracting authority can ask for proof of self-declarations, the standard PQQ, sub-contractors and completion of the SQ, self-cleaning and the light touch regime.

FAQs 8 February 2017: This document amends 7 of the original FAQs in Annex D of the PPN and adds 9 new questions covering: rewording of questions so they fit with e-procurement systems, what a "group of economic operators" means, completion of the SQ by a consortium, PAS 91, the PQQ questions on equality, health and safety and environment, list of topics covering technical and professional ability, what "sole trader" means, insurance requirements and where you can find a Word version of the SQ.

We have included references to and commentary on some of the FAQs in other SQ Bytes. The references are to the FAQs 8 February 2017.

In SQ Byte 2 we will look at the scope and coverage of the SQ, including commentary on its relevance to low value contracts, works contracts and the light touch regime.

 

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[1]              In these SQ Bytes we have adopted the terminology used by CCS and refer to "suppliers" rather than "economic operators". The term "suppliers" when used in these Bytes is intended to cover contractors, providers and suppliers.

[2]              Directive 2014/24/EU