Selection criteria consider a bidder’s suitability with regards to their technical and professional ability. Selection criteria must be related and proportionate to the subject matter of the contract, and it is likely to be more appropriate to evaluate how the bidder will meet employment, skills and training requirements rather including a requirement at the supplier selection stage.
A contracting authority must exclude a bidder from tendering for a public contract where it falls within a mandatory ground for exclusion in accordance with regulation 58 of Public Contracts (Scotland) Regulations 2015. For example: any offence under Part 1 of the Human Trafficking and Exploitation (Scotland) Act 2015 or under any provision referred to in the Schedule to that Act, breach of tax and social security obligations, and an act prohibited under the Employment Relations Act 1999 (Blacklists) Regulations 2010.
A contracting authority may exclude a bidder from tendering for public contracts where it falls within one of the discretionary grounds for exclusion in accordance with regulation 58(8) of Public Contracts (Scotland) Regulations 2015. For example, breach of any obligations in the fields of social, environmental or employment law. These obligations include any relevant national law, including relevant collective agreements and specific international agreements, and for example would include obligations under the Equality Act 2010, the Modern Slavery Act 2015, and the Health and Safety at Work etc. Act 1974.
A full list of the exclusion grounds can be found in the Procurement Journey.
Where a contracting authority decides that there may be a risk of exclusion grounds applying to a sub-contractor, it can choose to verify this at any stage in the procurement process. This can be an effective way to help ensure a robust approach is taken throughout the supply chain. A contracting authority should only ask for verification of exclusion grounds from sub-contractors in circumstances where it is regarded as proportionate and necessary to do so.
It must be noted that time limits apply to exclusion grounds. These are 5 years for a mandatory exclusion ground or 3 years for a discretionary exclusion ground from the date of conviction or misconduct. Where the exclusion is based on a finding that a bidder has failed to pay tax or social security contributions, the exclusions last until such time as it has either paid or entered into a binding agreement to pay all contributions due, including any applicable fines and interest – or until the contributions are otherwise no longer due.
If a bidder is in a situation which might result in its exclusion due to breach of any of the exclusion grounds, it must be given the opportunity to provide evidence to show that it has taken remedial action to demonstrate its reliability, this is known as self-cleansing. For this purpose, the bidder must prove that it has:
The contracting authority must not exclude the bidder on those grounds if they are satisfied that the evidence provided is sufficient to demonstrate their reliability.
It is for a contracting authority to consider all relevant factors, when forming a view of whether the measures taken are sufficient to demonstrate the reliability of the tenderer. In doing so it is important to consider the gravity and particular circumstances of the criminal offence or misconduct.
A fixed set of questions are contained in the Single Procurement Document (SPD) that allows bidders to self-declare whether they meet the exclusion criteria. It is mandatory that the relevant exclusion grounds statement from the standardised statement document is included in the Contract Notice for procurements carried out under the Restricted Procedure. A contracting authority can provide more information about specific exclusion grounds in the Additional Information section of the Contract Notice.
Model clauses to allow for termination of a contract or framework in the case of breaches of social, environmental and employment law are available from SPPN 9/2016 which contracting authorities may wish to adapt for their own use.
Selection criteria applied to individual procurement processes must be relevant and proportionate to the subject matter of the contract, and there must be a clear methodology to evaluate responses. While supplier capacity and capability for in delivery of community benefits may not always be required in procurements that include community benefit requirements, it is possible that selection criteria may address social issues by applying relevant criteria in respect of the technical capabilities that will be required of suppliers. Care must be taken to make sure that when establishing relevant experience small and medium sized enterprises and new suppliers in the market are not deterred from bidding.
The SPD consists of a fixed set of questions that allows bidders to self-declare whether they meet the selection criteria and minimum standards. Contracting authorities must incorporate statements into their contract notice to help with the interpretation of any selection criteria deemed appropriate. Each standardised statement is aligned to a selection question in the SPD.
For example, where it is relevant and proportionate to ask bidders to operate to minimum training standards and where evidence of systems and processes in place to manage training is required, bidders should be asked to provide conformation of this in the Technical and Professional Ability section (Part IV, Section C).
See the Annex for examples.
