Each issue of Public Procurement Newsbites looks at one of the tricky procurement issues we have addressed with clients recently.

Question: Can you use scored selection criteria in an open process to identify the bids that then go forward to full evaluation of the award criteria? If not, how do you take references and experience into account in an open process?

Answer: Regulations 23 to 25 of The Public Contracts Regulations 2006 cover selection criteria, which may be mandatory exclusion criteria (Reg 23), or relate to economic and financial standing (Reg 24) or technical/professional ability (Reg 25).

Selection criteria can be taken into account in the open process, just as in the other processes (see the cross references to Reg 15(11) in Regs 24(1)b and 25(1)(b). Regulations 15(11) and (12) concern the open procedure and state:

(11) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude a tender from the evaluation of offers made in accordance with regulation 30 only if the economic operator -

(a) may be treated as ineligible to tender on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of -

(i) economic and financial standing; or

(ii) technical or professional ability.

(12) The contracting authority may require an economic operator to satisfy minimum levels of

(a) economic and financial standing; or

(b) technical or professional ability;

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

Therefore, it is legitimate to score economic and financial standing and technical and professional ability in the open procedure, provided there has been transparency in the contract documents about the minimum levels required and the way the scoring will be carried out (and provided that these are sensible in the light of the contract generally). A contracting authority may evaluate experience and references to establish technical and professional ability in the open procedure, provided that it was upfront about the mechanism it would use to make this assessment and specified a minimum score and that it evaluated all the bids that exceeded the minimum score for selection as a whole.