Route 3 - Develop Strategy - Procurement Route - Restricted
The Restricted Procedure should be used for procurements where market analysis has shown a large number of bidders are likely to be interested in participating. In this case it is beneficial to use this procedure where the number of bidders can be reduced at the selection stage based on their capacity, capability and experience to perform the contract. All Organisations are free to use this procedure, in any circumstances and for any type of contract.
[For Care and Support Services only: For many care and support services contract, an organisation may use the procurement procedures, tools and techniques of its choosing. You should follow a procurement procedure, as a matter of best practice, that is proportionate to the value of the contract and to take account of some fundamental considerations (for example, the TFEU fundamental principles where relevant and fair work practices).
When doing so, you may choose to adapt or streamline the Restricted Procedure described in the Public Contract (Scotland) Regulations 2015. If you do so, you are not obliged to follow the detailed procedural requirements set out in those Regulations. You should therefore not refer to the Regulations in the tender documentation issued to participants, as this may create an expectation that the detailed procedural requirements will be followed. In all cases, you should ensure that the procurement process is described accurately and clearly, and then adhered to.]
The Restricted Procedure is a two stage process. The first stage is a selection process, where the bidders’ capability, capacity and experience to perform the contract is assessed. The second stage is when the Invitation to Tender is issued and the bids are assessed to determine the most economically advantageous tender, the basis of contract award.
As with all aspects of the Procurement Journey, the activities at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement. As a minimum the processes must be carried out in a transparent way that ensures there is no distortion of the market place. The outcome cannot be a procurement that unduly favours or disadvantages a particular bidders and it is the responsibility of the Organisation to make sure that these requirements are met.
Following a call for competition, any economic bidder may submit a request to participate. The European Single Procurement document (ESPD) is used as a standard request to participate document in Scotland.
Selection is looking at the bidder's capacity and capability, not how the bidder will deliver your requirement. Therefore, this is a backward looking process, i.e. you cannot consider matters specific to performance of the contract at this stage. You must indicate, in the contract notice or in the invitation to confirm interest, the objective and non-discriminatory criteria or rules that you intend to apply, the minimum number of bidders that you intend to invite and, where applicable, the maximum number.
Invitation to Tender (ITT) Stage
The minimum number of bidders that may be indicated by an Organisation is five and in any event the number of candidates invited must be sufficient to ensure genuine competition (note if the number of bidders meeting the selection criteria is fewer than five the procurement can still proceed).
The Organisation must issue ITT documents for completion by bidders successful at the stage 1 selection stage
Timescales to Consider
In Stage 1, bidders must be given a minimum of 30 days from the day the Contract Notice is sent for publication to respond to a call for competition.
In Stage 2, Bidders must be given a minimum 30 days to respond to the ITT (or 25 days where the organisation has indicated that it will accept electronic submission).
Sub-central organisations (any Organisation which does not belong to Central Government or National Health Services) may set the time limit for the receipt of tenders by mutual agreement between the organisation and the bidders successful at selection stage (the same time limit must apply to all of them). Where sub-central organisations cannot agree on a deadline with bidders, a minimum of 10 days must elapse between despatching the ITT and the deadline for submission.
Restricted Procedure with Publication of a PIN which is not used as a Call for Competition:
Organisations can choose to use a Prior Information Notice (PIN) to shorten the time period for the receipt of tenders. If using a PIN which is not a call for competition only a minimum of 10 days needs to elapse after the dispatch of the ITT before the closing date for the receipt of tenders if-
the PIN includes certain information required for the Contract Notice in so far as it is available when the PIN is published; and
the PIN is sent for publication between 35 days and 12 months before the Contract Notice is sent.
Restricted Procedure – Use of PIN as a Call for Competition:
Sub-central Organisations may use the Prior Information Notice as a Call for Competition.
If a PIN is to be published as a call for competition it must be sent for publication between 35 days and 12 months before sending the invitation to confirm interest. It must contain certain information and indicate that the contract will be awarded by restricted procedure without further publication of a call for competition and invite bidders to express interest. If a PIN is used as a Call for Competition, bidders must be given a minimum of 30 days to confirm their interest from the date bidders are invited to confirm interest.
Restricted Procedure – Urgency:
Organisations are allowed to shorten certain deadlines in case of urgency which needs to be suitably justified. It should be clarified that this need not be an extreme urgency brought about by events unforeseeable for and not attributable to the Organisation but the OJEU notice must provide justification.
After the despatch of a Contract Notice, the Organisation needs to allow at least 15 days for the submission deadline of selection stage information.
Following the completion of selection stage assessment the Organisation may despatch the ITT A minimum of 10 days must then be allowed before the submission deadline. Sub-central Organisations may agree on the submission deadline with bidders, if there is no such agreement a minimum of 10 days must be allowed by the Organisation for submission of tenders
Note – in all cases the days mentioned above are calendar days and not working days. The final day must however be a working day in Scotland.
In a Restricted Procedure, it is not necessary to make all procurement documentation available when the Contract Notice is published. It is necessary however, that organisation provides sufficiently precise information to enable the bidders to identify the nature and scope of the requirement and decide whether to express an interest to participate e.g. it is essential that the ESPD (Scotland) is used and is available when the Contract Notice is issued.
All Procurement Documents should be made available via the internet, with free and unrestricted access. If exceptions apply, which mean that the Procurement Documents cannot be issued electronically, the Contract Notice must detail how this will be done instead.
If the documents cannot be accessed immediately by electronic means then the timescales should be extended by five days, except in a case of duly substantiated urgency.
The ITT time limits set for receipt of tender submissions from bidders should be proportionate to the contract complexity and the time required to prepare and submit a bid (bearing in mind minimum requirements)
Time limits for the receipt of tenders must be extended in the case of significant changes to the procurement documents / where additional information is requested by the bidder in good time and this is not supplied at least 6 days (or 4 days in accelerated procedures) before the time limit of the receipt of tenders, to make bidders aware of all the information needed to produce tenders. The length of extension of a tender deadline should be proportionate to the complexity of the change and /or the additional information being provided. To proceed with a tender extension the necessary approval should be obtained in accordance with your internal governance procedures. If the date is amended, the new date should be notified to all tenderers, and if any tenderer indicates that they have already submitted a tender then they should be given the opportunity of withdrawing the original tender and submitting a revised one in line with the extended tender deadline.
Clarification of Bids
Negotiation on fundamental aspects of contracts (especially price) which are likely to distort competition, is not allowed. Dialogue with bidders should generally be limited to requests for clarification.
Any discussions with bidders should be properly recorded and meetings which discuss proposals/requirements in any detail should be avoided where these discussions might have the potential to distort competition. For more information please refer to Post Tender Clarification.