NB This post has been updated with a PS at the end of the article.
On 9th March 2023 the Crown Commercial Service (CCS) published its latest Procurement Policy Note, PPN 03/23. This provides the details of a new standard Selection Questionnaire (SQ) that is to be used for procurements in the public sector from 1st April 2023. This is the first change to the SQ since it was first published in PPN 08/16 in 2016, following the publication of the Public Sector Procurement Regulations 2015 which prevented the old 'free style' Pre-Qualification Questionnaire being used for most public sector procurements. This update adds some clarity to the requirements but appears to be largely driven by the need to amend references to EU documentation, in particular the European Single Procurement Document (ESPD),which is replaced by the Single Procurement Document (SPD). The SPD is the new SQ, as defined in PPN 03/23.
PPN 03/23 provides an updated questionnaire but also brings in some new requirements. As previously the SQ is arranged in three parts, part 1 is general information about the tenderer; part 2 covers the statutory and discretionary exclusion grounds, and this retains the ability for organisations to 'self-clean' for most categories; and part 3 contains the economic and financial standing, and technical and professional ability criteria.
The new PPN makes it clearer where other members of the bidding group must also supply responses to parts 1 and 2, and this includes sub-contractors who will be relied upon to meet the selection criteria. The definition of those 'relied upon' is made clearer in the new PPN.
Readers will be aware that public sector procurements fall into one of three categories: services, supplies, or works. Where a procurement includes two or more of these categories there are rules about how the predominant category must be determined.
Regarding works contracts, under PPN 03/23 the guidance retains the statement that for a works contract the PAS91 'should' be used in place of the standard SQ, but adds that the Common Assessment Standard (CAS) may also be used. PAS91 has 34 pages of questions broken down into numerous categories and sub-categories of questions, and CAS's full list of questions number 234, over 68 pages. Admittedly not all questions will be relevant to all procurements but you will need to consider every one for each procurement to determine whether to include or exclude it.
PAS 91:2013+A1:2017 can be obtained from the British Standards Institution website and an editable text version is available, both at no cost, although you will have to register with the site. The template is not to be shared but may be used for procurement purposes. |
The new PPN goes on to say that it will be for contracting authorities to ensure that questions used are relevant and proportionate to the contract being procured. This introduces two areas for debate. Firstly, what does 'should' mean; is it the same as 'shall'? The British Standards Institute doesn't think so, when it uses the word 'should', the BSI says, in PAS91, that 'should' ought to be considered as recommendations and 'shall' is to be considered a requirement. Secondly, who considers what is relevant and proportionate - presumably the Contracting Authority. That puts quite a responsibility for the CA and opens a can of worms when it comes to disgruntled tenderers looking for areas to challenge.
There remains the statement that pre-qualification stages are not permitted in any procurement valued below the threshold for supplier or services, and this same threshold (ie that for supplies and services) applies to works contracts in this context. For works contracts valued above the supplies and services threshold, but under the works threshold, a pre-qualification stage may be used, using the questions from the CAS (but no mention of PAS91 for some reason).
As previously, technical and professional experience taken into account and contracts for supplies or services must have been performed in the previous three years and for works in the past five years. Note the work 'must'.
PPN 03/23 provides an updated questionnaire but also brings in some new requirements. As previously the SQ is arranged in three parts, part 1 is general information about the tenderer; part 2 is where the statutory and discretionary exclusions are to be found, and this retains the ability for organisations to 'self-clean' for most categories; and part 3 considers the economic and financial standing, and technical and professional ability criteria.
As previously, there are a number of questions that apply only to central government organisations.
There appear to be a number of ambiguities in the PPN and we have raised questions with the CCS, and we understand that others have done so too. We will update this news item when we hear back from the CCS.
PS The CCS has now reissued PPN 03/23 with amendments. This comes into effect immediately but compliance is required from 1st June 2023. Separately they have advised us that "you can use the SQ instead of PAS91 if that's more proportionate."
Information in this article is provided without warranty and readers should not depend upon it for business decisions. Legal opinion from a practising lawyer should be sought for specialist advice.