The distinction between selection and award criteria is important.

Selection criteria are focused on "the bidder" and award criteria are focused on "the bid”. You should maintain a clear distinction between both throughout the procurement process.

This means that selection criteria should be addressed at the selection stage and should not form part of the award stage.  This is the case even if the selection criteria were omitted from the selection stage in error.

However, you can apply different aspects at selection and award if relevant.  For example you can look at the bidder's general staffing in selection and the qualifications and experience of those to be assigned to the contract at award, if that is relevant.

Although the selection and award criteria must  be developed and managed separately, it is possible for you to conduct these stages simultaneously or in any order where the process you are undertaking allows for this. For instance you may wish to conduct the Award Stage prior to checking minimum selection criteria are met.

You can include special contract performance conditions as long as they are linked to the contract's subject matter.

Such conditions may cover economic, innovation-related, environmental, social or employment-related conditions.  If specific performance conditions are to be used they must be included in the Prior Information Notice or the Contract Notice and in the Procurement Documents.

At Award Stage bidders may be requested to supply the names and professional qualifications of the staff involved in the performance of the contract.

A clearly documented process must be followed.  This will ensure there are satisfactory responses from bidders and no procurement process inconsistencies. Any failure in this respect will leave the procurement open to audit scrutiny and legal challenge.

Please note: the content of this page is currently undergoing a review. For further information on the real Living Wage please see the What is the real Living Wage information sheet, the Scottish Government's Fair Work and Procurement webpage or alternatively please email scottishprocurement@gov.scot

Please note that information on Fair Work First, which includes payment of the real Living Wage, can be found in SPPN 06/2021. 

You must consider the relevance and proportionality of Fair Work practices for its inclusion in the award criteria. 

Fair Work practices will be particularly relevant to consider where the quality of the services or goods delivered are affected by the quality of the workforce engaged. 

When deciding whether or not Fair Work practices are relevant  you should consider all relevant factors and be able to justify their inclusion.  You should consider whether:

• There is any previous experience of poor quality practices, including pay and conditions, impacting on the quality of service to be delivered. 
• There is any history of low pay or unequal pay in that sector;
• There is a risk that staff working on the contract might be subject to exploitative practices e.g. through the inappropriate use of zero hours contracts, through unnecessary distancing of the employer-worker relationship: by use of any “umbrella company” and through pay and hours arrangements that deny workers stability of employment or hours of work, by failing to pay wages for travel time within the working day,
• There is evidence that working conditions are making recruitment and retention problematic;
• Contractors are seeking to cut their costs through driving down staff terms and conditions, including pay;
• Workers will be required to interact directly with the organisation’s employees and/or members of the public.  Also whether they will spend any time on the organisation’s premises

In any of these circumstances, Fair Work practices are likely to be a relevant consideration. However this is not an exhaustive list and other factors may be relevant, depending on the specifics of an individual contract.

An example of a Fair Work practices Invitation to Tender question can be found in Annex A of the Addressing Fair Work Practices including the Living Wage, in Procurement Statutory Guidance.  Further information to consider can be found in Fair Work Practices Considerations.

At the contract award stage you, should ensure that the contract complies with the conditions, requirements and criteria set out in the Procurement Documents.

In addition, you may decide not to award a contract to the bidder submitting the most economically advantageous tender, if its bid does not comply with the social, environmental and labour law.

Fair and Ethically Traded Goods

Award criteria can also relate to the supply or use of ethically or fairly traded products.

In all cases award criteria must be proportionate and should relate to the work, supply or service being procured, and not to the general capacities or qualities of the bidder. A general corporate social responsibility policy is unlikely to demonstrate suitability to deliver a contract. For further guidance please refer to the Sustainable Procurement Tools. 

Equality Legislation

Equality legislation places duties on all public bodies. In exercising their functions they must have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct 
• advance equality of opportunity - between people who share a relevant protected characteristic and those who do not-
• foster good relations between people who share a protected characteristic and those who do not

You should ask bidders to self-certify that they comply with all relevant equality legislation.

Where evidence is provided of equality legislation breaches, you must consider any remedial action the bidder has taken to address these.

For organisations working outside the UK, equality questions relate to the equivalent legislation in the country where the bidder is located / breach occurred.

Effective contract management and monitoring should be undertaken to ensure that the equality assessment continues to be applied throughout the contract duration.

Where you have determined that minimum standards are applicable (either within selection or award criteria) they must relate to and be proportionate to the subject matter of the requirement.  This must be clearly detailed in the appropriate documentation.

When you wish to apply minimum standards to limit the number of potential suppliers to be invited to tender, minimum standards or objective criteria must be specified or referred to in the Contract Notice. This must be detailed in the procurement documentation to allow the rejection of potential suppliers.

Similarly if a pass mark can only be obtained by a response that meets the minimum requirement, this must be clearly stated within the scoring guidance provided to suppliers. 

You may consider variants as long as:

• it has been specified in the Contract Notice and the Procurement Documents. 
• All variants meet the specified minimum requirements
• You specify how variants  will be evaluated. All variant bids should be evaluated using the same criteria as the standard bids and compared on a like-for-like basis.

Variants cannot be considered unless the above are met. You should consider whether to allow bidders to propose different TUPE scenarios within their bids. If so, it should provide clear directions to tenderers to ensure that bids can be compared on a like-for-like basis.

• select the suppliers to be invited to bid for the contract or
• to identify the supplier to whom the contract will be awarded.  

• the selection or award criteria (depending upon the stage of the competition)
• sub-criteria, weightings
• minimum standards
• pass marks (if any) etc.

If there is any doubt as to the level of detail that must be disclosed/published, you should seek specialist professional procurement or legal advice and guidance.

Additional Care and Support Services guidance on award criteria can be found in Care and Support Services.

For Care and Support Services, it is best practice for an organisation to also take account of some other issues when procuring these services including:

• the quality of the service;

• the continuity of the service;

• the affordability of the service;

• the availability and comprehensiveness of the service;

• the accessibility of the service;

• the needs of different types of service users;

• the involvement of service users; and

• innovation.

This is not an exhaustive list and there may be other considerations that an organisation may also take account of and which are relevant on a case-by-case basis.