The distinction between selection and award criteria is crucially important:

• Selection criteria are focused on "the bidder";
• Award criteria are focused on "the bid”.

You must maintain a clear distinction between both throughout the procurement process.

This means that issues/questions which are appropriate to the selection criteria must be addressed at that stage and cannot form part of the award stage.  This is the case even if they were omitted from the selection stage in error.

The selection and award criteria must be developed and managed separately.  It is possible to conduct these stages simultaneously or in any order where the procedure allows. For instance, when using an Open Procedure if you have a small number of bids you may want  to assess these bids prior to checking minimum exclusion and selection criteria are met. Where this is done you must still ensure you verify there are no grounds for exclusion and the selection criteria are met. This must be carried out in an impartial and transparent manner so that no contract is awarded to a bidder that should have been excluded or does not meet the selection criteria.

By applying exclusion grounds and developing relevant and proportionate selection and award criteria you can ensure the successful bidders are well placed to deliver best value for the Scottish public sector.

For Care and Support Services, consider the involvement of people who use the services and their carers (taking into account the nature and level of support they will require), in developing any criteria and preparing questions for use in interviews with potential service providers. An organisation must determine at the planning stage what criteria it will use to select potential suppliers, and what criteria it will use to evaluate tenderers. The mandatory exclusion grounds must be applied and an organisation may also choose to apply discretionary exclusion grounds, selection criteria and award criteria.

Additional guidance on award criteria can be found in C&SS Award Criteria Guidance document and please read the Guidance on Contract Renewal and Direct Award without Competition which can be found at the bottom of the page in the documents section.

Exclusion grounds, selection and award criteria must be clearly defined in:

• The Contract Notice;
• The call for competition, when used as a Contract Notice.

This is to ensure a common understanding of the requirements by all bidders.

These criteria must not be changed or waived during the procurement process e.g. the Contract Notice and the call for competition must contain a list and brief description of criteria.  This must include the  situations where bidders may be excluded and detail the, minimum and specific requirements.

The Evaluation matrix may assist you in your evaluation if you are not using PCS-T. More information on evaluation criteria can be found on the Award Criteria station.

A supported business:

• has a main aim of the social and professional integration of disabled or disadvantaged persons,
• Has at least 30% of their employees who are disabled or disadvantaged workers  

You can “reserve” your competition to supported businesses where it is assessed as appropriate.  This is referred to as a Reserved Contract.

It is also possible for your Organisation to provide for a contract to be performed in the context of an employment programme operated by a supported business.   This is a way buyers can encourage involvement of disabled and disadvantaged persons.

The Procurement Reform (Scotland) Act 2014 requires an organisation to consider:

• How it may involve supported businesses. This can be facilitated by how the procurement process is conducted;
• Acting in a way to best bring about the involvement of supported businesses where it occurs

SPPN 4/2017 provides further information and guidance on reserving contracts for supported businesses, including:

• Determining whether an organisation meets the definition of a supported business (for the purposes of public procurement legislation);
• Identifying supported businesses;
• Monitoring and reporting.

Groups of suppliers can bid together and must not be required to take a specific legal form to do so. 

You can set contract conditions which are specific to a group bid.

You can explicitly state requirements regarding group economic and financial standing or the criteria relating to technical and professional ability.   Such conditions must be justified by objective reasons and be proportionate to the contract.

Depending on the extent to which suppliers will be relied on to perform the contract, you may require particular members of the supplier group to meet all or some of the selection criteria.

Your Organisation may require the group to take a legal form but only if they are awarded the contract. For example, to appoint a lead contractor and accept joint and several liability if required for the performance of the contract

If your contract will require sub-contractors (and sub-sub contractors) you should evaluate at award stage how bidders will ensure payment of sub-contractors throughout your supply chain.  Payment should be made within the standard 30 day payment terms and bidders should communicate how this will be managed.

All public bodies advertising requirements which may require the use of sub-contractors should adopt the statement:

Standard Prompt Payment Statement

Confirmation that you will include the standard clause in all contracts used in the delivery of the requirements, ensuring payment of sub-contractors at all stages of the supply chain within 30 days, include a point of contact for sub-contractors to refer to in the case of payment difficulties and provide evidence and reports to the contracting authority on a regular basis.

If a bidder is unable to confirm acceptance of the award statement, then they should be removed from the tendering process.

All exclusion, selection and award criteria must be relevant and proportionate to the subject matter of the contract. You must set out your specific requirements, the relevant exclusion grounds and the minimum standards that are relevant for your procurement exercise in the Contract Notice.

Statutory Guidance has been published on Selection of Tenderers and Award of Contracts.

Technical Specifications and Standards

Within a technical specification you must avoid a reference which has the effect of favouring or eliminating particular suppliers.  For example, by asking for a specific make or source, or referring to a particular process, or trademark, patent, type, origin or means of production e.g. do not specify "Hoover" when we mean a vacuum cleaner or "Intel" when we mean a Central Processing Unit of a PC.

Such reference may only be justified if either:

• the subject of the contract makes using this kind of reference unavoidable; or
• in exceptional circumstances where the subject of the contract cannot be described in a way which is precise and understood by all bidders.

In either of the above circumstances, such must be accompanied by the words "or equivalent".

The Public Contracts (Scotland) Regulations 2015 set extensive rules on how organisations may define and incorporate technical specifications and standards.

Output/Performance Specification

The specification should be written in "performance" terms, which focuses on the product function or service output required. This means building the specification around a description of what is to be achieved rather than a fixed description of exactly how it should be done.  This encourages marketplace innovation, allowing and encouraging suppliers to propose modern (including environmentally preferable) solutions.

Design Specification

In very exceptional circumstances and for a very limited number of products or services, a "design" specification may be unavoidable because of the nature of the requirement.

This kind of specification starts with exact details of the physical dimensions, the materials used, power input and output, the manufacturing processes required, and so on.

However, this should always be tested and guidance sought, as a design specification can greatly restrict competition.

The User Intelligence Group (UIG) is responsible for developing the specification.

Given that the structure and membership of any UIG varies significantly from exercise to exercise, you should ensure that other end users, stakeholders and technical specialists are consulted where appropriate. Part of the role of the UIG is to challenge accepted thinking. At the specification stage, the UIG should explore opportunities to include economic development and sustainability considerations.

A good specification is created through the planning and research undertaken before writing begins and it is essential that you allow sufficient time to create the specification.

It is useful to discuss the specification with a range of potential tenderers during its development. This must be done in a fair and transparent manner to avoid distorting competition and/or giving any potential tenderer an advantage. Care must be taken to avoid unfairness, but also the impression of unfairness, to some tenderers. Under no circumstances should any commitments be made during this process.

Following marketplace discussions, be careful that a supplier’s innovative ideas and approaches are not disclosed during the specification development.  Such innovations may provide a supplier with a competitive edge e.g. proprietary methods or Intellectual Property Rights (IPR).

You should consider how you can encourage the production of innovative goods and services, which will assist the Organisation to deliver evolving policies and strategies e.g. sustainable low carbon products.

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. 

Suppliers should not experience unnecessary costs through casual bid enquiries. You are responsible for ensuring that best Value for Money is achieved through the procurement process.

The key criteria that the User Intelligence Group (UIG) needs to ensure are met when completing the specification are that:

• the requirements are complete and accurate;
• stakeholders needs are taken into account;
• future developments have been taken into account;
• there is consistency with the Organisations' requirements and objectives.  This includes: business case; the Procurement Reform (Scotland) Act 2014, the Public Contracts (Scotland) Regulations 2015, the Procurement (Scotland) Regulations 2016 and other relevant legislation; procurement and contracts strategies; sustainability objectives; and evaluation strategy; and
• a suitable risk assessment is completed to ensure that related risks are closed or managed.

Once a contract is awarded, the scope to make changes to the specification is very limited.  For example asking the contractor to deliver more or less than was specified at the time of tendering.

Any such changes may be challenged in the Courts. If the supplier cannot deliver in line with the requirements in the original contract (perhaps due to specification omissions or errors), the contract may have to be terminated and a new procurement undertaken.

You may authorise or require variants on the contract requirements, as long as it has been specified in the Contract Notice. 

The Procurement Documents must set out the minimum requirements and how any variant will be evaluated. Variants cannot be considered unless this has been done, they are linked to the subject matter and they meet the minimum requirements.

Where it is relevant, you should also consider whether to allow bidders to set out different TUPE scenarios within their bids. If you elect to include this in your tender, you should provide clear directions to tenderers to ensure that bids can be compared on a like-for-like basis.

All variant bids must be evaluated using the same criteria as the standard bids and compared on a like-for-like basis.

You can conduct market consultation. This will help you prepare both the procurement itself and the market for the coming process. 

To undertake market consultation you can speak with independent experts, regulatory authorities or suppliers to the market. You can then use any advice received in the planning and execution of your procurement process.

You must make sure there is no distortion of competition and no negative effect on the principles of non-discrimination and transparency. 

All suppliers / bidders who join the process at a later date must be provided with the same information as those who engaged prior to the tender.  This will  ensure a fair process.

The Public Sector Equality Duty requires organisations to assess new or revised policies and practices to evaluate how they will impact people with different protected characteristics. 

You must take into account the three needs of the Public Sector Equality Duty, to:

• eliminate discrimination;
• advance equality of opportunity; and
• foster good relations between people with different protected characteristics.

The protected characteristics are:

You should also integrate human rights into your impact assessments to help suppliers meet their obligations under the Human Rights Act 1998. Further information  on how to conduct equality impact assessments is available on the Equality and Human Rights Commission (EHRC) website.

The technical specification can specify whether the transfer of Intellectual Property Rights (IPR) will be required.

This is important as suppliers are likely to find the contract much less attractive if  any intellectual property  they create would be the property of the buying organisation. This may be an unnecessary barrier to competition to some suppliers who supply similar goods or services to other customers.   The Organisation, however, may legitimately ask for access to intellectual property which they require.

You can apply a number of different costing models such as life-cycle costing or whole life costing, as part of the specification and subsequent evaluation. 

Whole Life Costing

Whole Life Costing Focuses solely on cost (£) of a product or service from cradle to grave. It takes into account purchase, operation, ownership and disposal costs.

Environmental or social costs are not included.

Life-cycle Costing 

This covers part or all of the following product or service costs :

a) costs produced by the Organisation or other users, such as:

 (i) purchase costs;

(ii) usage costs e.g. energy consumption  and other resources;

(iii) maintenance costs;

iv) end of life costs, such as collection and recycling costs; and

(b) product or service life-cycle environmental costs  To include such values you must be able to calculate and verify them This may include the cost of  greenhouse gas emissions, other pollutant emissions and other climate change avoidance costs.

Life-cycle costing takes into account all of the identifiable costs of a product or service from its purchase through use, maintenance and end of life (recycling / disposal). 

These can be direct costs like scheduled maintenance and energy used through the life of a road sweeping vehicle, and also less apparent external environmental costs such as the cost of emissions of greenhouse gas based on the energy use of the road sweeping vehicle, provided that their monetary value can be determined and verified.

 Attributable costs can only be assessed when:

• based on criteria that don’t favour or disadvantage any potential bidders and which are not established for repeated or continuous application;
• the assessment method is accessible to all interested parties;
• the data required can be provided with reasonable effort from all interested parties. An example is the World Trade Organisation Government Procurement Agreement (e.g. USA).

If using a life-cycle costing approach to award a contract, the Procurement Documents must state:

• the data bidders will provide;
• the method used to calculate the life cycle cost.

It is important to differentiate between whole life costing, life-cycle costing and life-cycle impact mapping:

Focuses on social and environmental impact rather than cost. It helps the user identify and assess impacts. For example, it may help to focus attention on the disposal phase before the procurement is carried out. This would  allow you to build end-of-life management requirements into successful contractor performance clauses and your own internal management procedures.

Please note: life-cycle impact mapping can be used alongside life-cycle costing as part of the procurement process.

If you purchase goods or services with specific environmental, social or other characteristics, labels can be used as a means of proof.  The label can show that the supplied goods or services correspond to the required characteristics. For example, Fair Trade addresses workforce issues and is provided by the Fair Trade Foundation.

To use this approach it is necessary to meet the following criteria:

• the labels can only concern criteria that are linked to the subject matter of the contract.  These must be appropriate to define characteristics of the supplies or services;
• they have to be based on objective and non-discriminatory criteria;
• the label itself is established in an open and transparent procedure. It can be accessible to all interested parties; and
• the label requirements are set by a third party over which no potential bidder has decisive influence

It is more proportionate for you to specify which label requirements bidders need to meet for you, rather than using a broad “all applies” basis.  This approach will reduce the burden on bidders and could also expand the number of capable bidders for your process.

Equivalent labels must be accepted if the bidder can show it has not been possible to obtain either the label or other equivalents, through no fault of its own.  You must accept other appropriate means of proof.

Samples or patterns may be issued or requested from bidders when you cannot produce a detailed description of the requirement.  It is important not to request anything that is not going to be core to the evaluation and not to put bidders under financial or operational pressure to provide samples.

If you request samples and you rely on these for quality assessment as part of the tender a "sealed sample" must be kept for later comparison with the products supplied.

Samples, patterns and drawings may also form part of a design specification.

Any samples provided by bidders that are no longer required should be returned to the bidder.

Care should be taken that copyright is not breached when using samples, patterns etc. for specification purposes. Consideration needs to be given to the Intellectual Property Rights of the bidders.

It is very important that you state clearly as part of the tender documents how the samples and any other provisions from the bidders will be used as part of the tender evaluation and indeed any subsequent contract management.

Simplification and variety reduction techniques can help in reducing costs and in obtaining better Value for Money (VFM).

Specification simplification and variety reduction involves removing design complexities. For example, by removing different design types, sizes, grades etc. of products.

At its simplest this might be seen as the reduction in the:

• number of item colours purchased; or
• sizes of envelopes purchased and kept in stock

 This can be a valuable tool when creating a specification for large collaborative procurements.

You must consider how the contract quality, sustainability and performance of goods and services will be measured as you develop your specification, especially an output specification.

These factors should be reflected in the Management Information (MI) and Key Performance Indicators (KPIs) that you require from your supplier(s).  MI and KPI requirements should be included in your ITT and Terms and Conditions.

It is also best practice  that suppliers are contractually required to provide line item spend detail as part of their contract support, and this should be communicated as part of the tender documentation.

Demand should be regularly assessed. In some business areas internal customers or budget holders may under or over specify e.g for consultancy services, specifying a Partner when an Associate could deliver the brief: where they are suitable and can deliver at less than half the day rate. It could be more cost effective to have a fixed term appointment than having an interim who stays in place for much longer than the initial contracted period.

In order to avoid scope creep, it is essential to ensure that a robust scoping process is undertaken at the earliest opportunity. Otherwise a supplier may offer additional services which are not required. Supplier-led scope creep can occur and should be demand managed. An example is an IT project aimed at buying a records management system which links, shares and allows the updating of records. If a project like this is not fully scoped and requirements understood early on, suppliers may exploit planning gaps. The supplier may add additional products or services as a 'problem resolution tool'. This would increase the scope, cost and timescales of the initial project. 

Whilst all the guidance in this station should be considered when procuring Care and Support Services specific Care and Support Services guidance can be found in Developing the Service Specification and the Procurement of care and support services: best practice guidance.

Whilst an innovative solution is the objective of your procurement, the outcome must still:

• meet the minimum requirements set out in the tender documents; and
• be within the agreed performance levels and maximum costs.

You must set out in the Procurement Documents:

• the subject matter of the procurement by providing a description of your need;
• the minimum requirements;
• the award criteria; and
• the applicable intellectual property rights arrangements.

The information you provide must be precise enough to help potential partners identify the nature and scope of the requirement.  This will allow them to decide whether to request to participate in your procedure. However, you should to be careful not to restrict the innovative proposals with the requirements.

The only set timescales is the deadline for requests to participate which must be a minimum of 30 days after the Contract Notice is sent for publication. 

When fixing other time limits you should take account of the complexity of the contract and the time required for drawing up tenders.

You must permit any potential partner to submit a request to participate within the timescales you have set, answering your selection stage requirements.

The evaluation of the selection stage information may be more challenging than other procedures. You must, in particular, apply criteria concerning:

• the partner’s capacity in the field of research and development; and
• of developing and implementing innovative solutions. 

Only those invited by you may participate in the procedure and go on to submit research and innovation projects.

The Innovation Partnership must be structured in successive phases to reflect the research and development stages involved.  You must ensure the structure, duration and value of the partnership’s different phases reflect the degree of innovation of the proposed solution and the sequence of the research and innovation activities.  

You should set intermediate targets to be attained by the partners and provide for payment in appropriate instalments.

You must negotiate with partners over the initial and all subsequent tenders submitted, except for the final tender, to improve its content.  Minimum requirements and the award criteria must not be negotiated.

After each phase, you have the option to terminate the partnership or reduce the number of partners.  You can terminate individual contracts by applying the award criteria, provided that you have indicated such possibilities in the Procurement Documents.

You must evaluate the final solutions or terminate the contract.  The contract must be awarded on the sole basis of the best price-quality ratio.

You should not use Innovation Partnership in a way that prevents, restricts or distorts competition.

You may limit the number of candidates meeting the selection criteria. If you stated this was a possibility in the Contract Notice.

You should invite at least three bidders to participate (if three or more meet the selection criteria) in order to ensure genuine competition. You may also establish an innovation partnership with one or several partners conducting separate research and development activities.

For many care and support services contracts, 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 that takes account of some fundamental considerations (for example, the principles of procurement, and where relevant, Fair Work Practices).

When doing so, you may choose to adapt or streamline the Innovation Partnership 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.

Organisations must ensure the equal treatment of all parties involved. Part of this requires that confidentiality must be maintained to prevent any distortion of competition.

Your Organisation must not reveal confidential information communicated by a party to another party without their express agreement. This permission may only be given with reference to the intended communication of specific information. 

You should also add a requirement to ensure your organisation’s confidential information is protected throughout the procurement process.

The activities you undertake at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement. 

1. When fixing any time limits you must take account of the complexity of the contract.  A Contract Notice will not be published in this procedure. The only Procurement Documents which may be published would be a Voluntary Ex-Ante Transparency (VEAT) Notice. Your Organisation can use a VEAT Notice to protect itself by sending it via Public Contracts Scotland prior to entering the contract.
2. It is still mandatory to publish a Contract Award Notice with this procedure.

This procedure can be used for goods:

• where the goods are manufactured purely for research, experimentation, study or development purposes.  This does not include quantity production to establish commercial viability or to recover research and development costs.  Note this should not be abused to allow a single supplier to be approached e.g. to design an item which must subsequently be purchased as a result of proprietary rights;
• where a change in supplier(s) would mean your Organisation would have compatibility issues or disproportionate technical difficulties. In such cases you can use NPwPP to buy additional deliveries from the original supplier. This is for replacing or increasing supplies or installations.  In this case, the contract or recurrent contract length must not exceed three years other than in exceptional circumstances;
• for supplies quoted and purchased on a commodity market; 
• for the purchase of supplies on particularly advantageous terms.  This can be from either a supplier definitively winding up its business activities, or the liquidator in:
  • an insolvency procedure;
  • an arrangement with creditors; or
  • a similar procedure under national laws or regulations.

Negotiated Procedure without Prior Publication can be used for services:

• where the contract concerned follows a design contest (see below) organised in accordance with the Public Contracts (Scotland) Regulations 2015.  The contract concerned is to be awarded as part of the design contest to the winner or winners. if there is more than one winner of the design contest, all of them must be invited to participate in the negotiation; or
• in instances when all of the following apply:
  • for new services consisting of repetitive similar services performed by the supplier already awarded the original contract. In such cases the services must:
    • conform with the basic project for which the original contract was awarded
    • the original award included the extent of possible additional services and the conditions under which they would be awarded.
  • When the possible use of this procedure was disclosed in the Procurement Documents.  Also  the total estimated cost of subsequent services was taken into consideration by your Organisation when applying the thresholds in relation to the original contract; and
  • Not more than three years have elapsed following the conclusion of the original contract.

Design Contest

For many care and support services contracts, 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 principles of procurement and fair work practices).

When doing so, you may choose to adapt or streamline the Negotiated Procedure without Prior Publication 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 activities at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement. 

Advantages of Competitive Dialogue are:

• it allows organisations to clarify, specify or optimise the final bids
• your negotiations with your ultimate preferred bidder may also confirm financial commitments or other terms contained in the tender to finalise the contract.  This helps, for example, in situations where a preferred bidder needs to secure final planning permission for a project before the contract can be concluded.

Care should be taken before selecting this route:

• you must ensure that you legally satisfy the criteria of using Competitive Dialogue
• you should be aware that this process is costly and resource intensive for you and bidders
• this procedure is likely to result in a significant increase in procurement timescales.

You should publish your minimum requirements, award criteria and their weightings.  These cannot be changed during the negotiation process.  

If your process will be conducted in successive stages, this must be stated in the Contract Notice or descriptive document.

The day after the Contract Notice is sent for publication, at least 30 days must elapse before the closing date for receipt of selection stage information. 

Note that after this stage there are no further set minimum timescales for submissions, however timescales must be reasonable.  When fixing time limits, you must take account of the complexity of the contract and the time required for writing bids. You must set out an indicative timeframe in the Contract Notice and/or a descriptive document.

You must allow any bidder to submit a request to participate in response to a Contract Notice within the time limit set.

You then invite the selected candidates to participate in the dialogue, using an Invitation to Take Part in Dialogue (ITPD). There is no minimum period specified for bids in response to this document, but it must be reasonable. 

You may limit the number of suitable bidders who meet your selection criteria to be invited to participate in the procedure.  You should invite at least three bidders (if three or more meet selection criteria) to the dialogue process in order to ensure genuine competition.

Bidders do not submit tenders before starting dialogue with your Organisation.

Following this initial response, you may decide to have several stages of negotiations/dialogue in order to develop solutions and reduce the number of solutions (if indicated in the contract notice or the descriptive document).

If there are successive stages, you must ensure that in the final stage the number of solutions remaining make for genuine competition.  This means there must be enough solutions or qualified bidders. 

You can decide on the number of dialogue stages.   

You may reduce the number of bidders by applying the award criteria to suppliers’ proposals during multiple dialogue stages before using the criteria again to assess bidders’ final bids.

During the dialogue, Organisations must ensure equal treatment of all participants. 

Any clarifications, specification, optimisation, additional information or negotiations must not involve changes to the essential aspects of the tender.  You must not provide information in a discriminatory manner which may give any bidder an advantage over others.

You must inform all bidders when the dialogue is being concluded.

You must invite each remaining bidder to submit their final tender on the basis of the solution(s) presented and specified during the dialogue.

After the Invitations to Submit Final Tenders are sent out, you must set a deadline for receipt of final tenders. There is no minimum period specified but these must be proportionate by taking into account the contract complexity and the time required to prepare and submit a bid.

You must extend the time limits for the receipt of tenders so that all bidders concerned are aware of all of the information needed to produce tenders e.g. where additional information has been requested by a supplier in good time and is not supplied at least six days before the time limit fixed for the receipt of tenders, or where there are significant changes made to the procurement documents. 

The length of extension must be proportionate to the importance of the information or change.

Final tenders may be further clarified before award of the contract, but this must not involve the essential aspects, cause discrimination, or distort competition.  You apply the award criteria to assess bidders’ final bids and award the contract.

For many care and support services contracts, 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 Principles of Procurement and Fair Work Practices).

When doing so, you may choose to adapt or streamline the Competitive Dialogue procedure described in the Public Contracts (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.

You can use Competitive Dialogue where all of the submissions you have received for an Open or Restricted Procedure are classed as either irregular or unacceptable.

A tender is irregular where:

• it does not comply with the Procurement Documents
• it was received late
• there is evidence of collusion or corruption
• it has been found by you to be abnormally low

A tender is unacceptable where:

• it was submitted by a bidder that does not have the required qualifications; or
• the price tendered exceeds your Organisation’s budget (as determined and documented before the Procurement Procedure started.

You may authorise or require variant bids. However this must be specified in the Contract Notice.

Your Procurement Documents must set out the minimum requirements and how the variant will be evaluated. Variants cannot be considered unless:

• they are specified within your Procurement Documents
• they are linked to the subject matter of the contract
• they meet the minimum requirements.

All variant bids should be evaluated using the same criteria as the standard bids and compared on a like-for-like basis.

You should also consider whether to allow potential bidders to offer different TUPE scenario options within their bids. If so, you must provide clear directions to bidders to ensure that bids are compared on a like-for-like basis.

The Invitation to Submit a Final Tender is a procurement document that can only be finalised in the course of the actual dialogue.  As a result it does not need to be made available at the same time as the Contract Notice.

The procurement documentation relevant to the first part of the procedure (up to and including the Invitation to Take part in Dialogue (ITPDs) must be made available:

• through the internet
• for free
• simultaneously
• by electronic means
• include all ITT documents (unless exclusions apply, for example confidentiality) when the Contract Notice is published. In such cases another, non-internet method must be used to provide the information.

The activities you undertake at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement.

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 Principles of Procurement and Fair Work Practices).

When doing so, you may choose to adapt or streamline the Competitive Procedure with Negotiation 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.

You may authorise or require variant bids.  However this must have been specified:

• in the Contract Notice 
• where a PIN is used in the invitation to confirm interest. 

The Procurement Documents must set out the minimum requirements and how any variant will be evaluated. Variants cannot be considered unless this has been done, they are linked to the subject matter and they meet the minimum requirements.

Where it is relevant, you should also consider whether to allow bidders to set out different TUPE scenarios within their bids. If you elect to include this in your tender, you should provide clear directions to tenderers to ensure that bids can be compared on a like-for-like basis.

All variant bids should be evaluated using the same criteria as the standard bids and compared on a like-for-like basis.

You may authorise or require variants on the contract requirements, as long as it has been specified:

• in the Contract Notice; or
• You may authorise or require variant bids.  However this must have been specified in the Contract Notice.  

The Procurement Documents must set out the minimum requirements and how any variant will be evaluated. Variants cannot be considered unless this has been done, they are linked to the subject matter and they meet the minimum requirements.

Where it is relevant, you should also consider whether to allow bidders to set out different TUPE scenarios within their bids. If you elect to include this in your tender, you should provide clear directions to tenderers to ensure that bids can be compared on a like-for-like basis.

All variant bids should be evaluated using the same criteria as the standard bids and compared on a like-for-like basis.

Since your final documents may be dependent upon the negotiations held, it is not practical to expect you to publish all Procurement Documents with the Contract Notice.

Invitations to Tender (ITT) should be sent to all selected bidders:

• for free
• simultaneously
• in writing;
• by electronic means
• include all ITT documents (unless exclusions apply, for example confidentiality).

As per the Public Contracts (Scotland) Regulations 2015, The minimum number of bidders is 3.

If an ITT is issued near to the closing date, bidders should be made aware that the submission date is imminent.

The ITT time limits for receipt of tender submissions should be proportionate to the contract complexity and the time required to prepare and submit a bid (bearing in mind minimum requirements).

As per The Public Contract (Scotland) Regulations 2015, your Organisation must extend the time limits for the receipt of tenders so that all bidders are aware of all of the information needed.  When:    

• additional information has been requested by a bidder in good time and not supplied at least 6 days (or 4 days in accelerated procedures) before the receipt of tenders deadline or
• where there are significant changes made to the procurement documents.

Any extension 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.

If the date is amended, the new date should be notified to all bidders.  If any tenderer indicates that they have already submitted a tender, they should be able to withdraw their original bid and submit a revised one (in line with the extended tender deadline).

Care must be taken to guard against fraud.  A full audit trail must be documented to ensure no information is passed to a bidder, allowing them to amend bids already seen by the Organisation.

The activities you undertake at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement.

For many care and support services contracts, 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 Principles of Procurement 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.

Stage 1

Selection Stage

• Following a call for competition, any bidder may submit a request to participate.
• Buyers must issue a Single Procurement Document (SPD) for procurement exercises over the threshold (route 3) and it is recommended that it is also used for all route 2 procurements. The Selection stage evaluates the bidder's capacity and capability, not how the bidder will deliver the 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 state in the Contract Notice or in the Invitation to Confirm Interest:
  • your objective and non-discriminatory criteria or rules that you intend to apply; and
  • the minimum number of bidders that you intend to invite and, where applicable, the maximum number.
• Timescales to consider: 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 (or 25 days where the organisation has indicated that it will accept an electronic submission).

Stage 2

Invitation to Tender (ITT) Stage:

• The minimum number of bidders is five and
• 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. 
• You must issue ITT documents for completion by bidders successful at the Stage 1 selection stage
• Timescales to consider: 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 an electronic submission).

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 (or 25 days where the organisation has indicated that it will accept an electronic submission).

Sub-central buyer organisations may set the time limit for the receipt of tenders.  However this must be done by agreement with the bidders successful at selection stage.  The same time limit must be applied to all bidders.

Where a time limit cannot be agreed a minimum of 10 days must elapse between despatching the ITT and the deadline for submission.

Note: A sub-central buyer organisations is any Organisation which does not belong to Central Government or National Health Services.

• Organisations can choose to use a Prior Information Notice (PIN) to shorten the time period for the receipt of tenders.
• If using a PIN 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, if  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 published.

Organisations are allowed to shorten certain deadlines in case of urgency. 

• Urgency needs to be suitably justified. This need not be an extreme urgency from unforeseen events  and/or not caused by your Organisation. 
• Your contract notice must include justification.
• After the despatch of your Contract Notice, you need to allow at least 15 days for the submission deadline of selection stage information.
• Following the completion of your selection stage assessment you 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 agreement, a minimum of 10 days must be allowed by you for the submission of tenders

In a Restricted Procedure, it is not necessary to make all procurement documentation available when the Contract Notice is published.

It is necessary that your organisation provides sufficiently precise information to allow bidders to identify the nature and scope of the requirement.  From this information the bidders will decide whether to express an interest to participate i.e.. it is essential that the SPD (Scotland) is used and is available when the Contract Notice is published.

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 the Procurement Documents will be made available.

If the documents cannot be accessed immediately by electronic means, then the timescales should be extended by five days.  The exception is in a case of duly substantiated urgency.

The ITT time limits (for receipt of bidder tender submissions)  should be proportionate to the contract complexity and the time required to prepare and submit a bid.  You must take into account the minimum requirements when setting this time limit.

Time limits for the receipt of tenders must be extended:

• if you significantly change the procurement documents;
• where additional information requested by a bidder in good time  is not supplied at least six days (or four days in accelerated procedures) before the time limit of the receipt of 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. If any tenderer has already submitted a bid then they should be given the opportunity to withdraw their original bid and submit a revised one.  This revised bid should meet the extended tender deadline.

You cannot negotiate on fundamental aspects of contracts i.e. areas likely to distort competition such as price.

Dialogue with bidders should be limited to requests for clarification.

You should record any discussions with bidders.  Meetings which discuss proposals/requirements should be avoided as these may distort competition.  For more information please refer to Post Tender Clarification.

The activities at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement.

For many care and support services contracts, an Organisation may use the procurement procedures and 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 e.g. the Principles of Procurement and Fair Work Practices.

When doing so you may choose to adapt or streamline the Open 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; 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 is adhered to.

The selection and award criteria must be developed and managed separately. It is however possible for you to conduct these stages simultaneously or in any order where the procedure allows. 

For instance, when using the Open Procedure you may assess the tenders (award stage) prior to checking minimum criteria are met. This should only be done if a small number of bids have been received.  You must still verify exclusion grounds and that the bids meet the selection criteria.

This evaluation needs to be carried out in an impartial and transparent manner.  No contract can be awarded to a bidder that should have been excluded or does not meet the selection criteria.

After despatching the contract notice, at least 35 days must elapse before the tender closing date. Where tenders may be submitted electronically, the number of days decreases to 30.

Your Organisation may publicise their future, planned procurement exercises by publishing a Prior Information Notice (PIN) on Public Contracts Scotland (PCS). However publishing a PIN does reduce your tender timescales later on.  If using a PIN, only a minimum of 15 days need to elapse after the dispatch of the Contract Notice before the tender closing date if:

• the PIN includes certain information required for the contract notice (if 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.

Your Invitation to Tender (ITT) time limits for the receipt of bids should be long enough and reasonable for the bidders to tender, taking into account:

• the contract complexity; and

• the time required to prepare and submit a bid.

Extending or Changing a Tender Deadline

Changes to a tender closing date must be made if:

• significant changes are made to the Procurement Documents; and/or

• if information requested by a bidder (in a timely fashion) has not been supplied - a minimum of six days before the tender deadline (or 4 days in accelerated procedures). 

Extending 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 must be obtained in accordance with your internal governance procedures.

If the date is amended, the new date should be notified to all bidders. If any bidder has already submitted a bid, they should be given the opportunity to withdraw their original bid and submit a revised one (in line with the extended tender deadline).

Urgency

Organisations are allowed to shorten certain deadlines in case of urgency. This needs to be suitably justified.

To use this procedure, you must provide a justification in the contract notice. The need must be genuinely urgent (e.g. a matter of safety) and it must have been caused by unforeseeable events and/or not your Organisation’s fault.

If your Organisation can appropriately justify urgency, the closing date for receipt of tenders can be 15 days after the contract notice was sent for publication.

Given the shortened timescales for this procedure you must make the Invitation to Tender (ITT) available from the start of the procurement i.e. when the contract notice is published.

If you decide to use an Open Procedure, you must provide full information about the requirements and qualitative selection process. The ITT documents must be issued to all bidders that request them.

All Procurement Documents, including the ITT, must be made available:

• for free direct download;

• from the internet;

• from the time they are sent to participants in the process; and

• with unrestricted access. 

The contract notice must specify the internet address at which the Procurement Documents can be accessed. 

If exceptions apply, which mean the Procurement Documents are not available electronically, the contract notice must detail how access can be achieved.  Timescales must be extended by five days if the documents cannot be accessed immediately by electronic means. An exception is  in a case of a substantiated urgency.

The Open Procedure allows for ITTs to be issued on request at any point prior to the date set for submission of tenders.

When an ITT is issued near to the closing date, the recipient should be made aware that the submission date is imminent.

You can clarify some aspects of the tender. You cannot clarify fundamental aspects where any changes may distort competition or cause discrimination.

Any discussions you have with bidders should be properly recorded. Meetings which discuss proposals/requirements in any detail should be avoided as they may distort competition. For more information, please refer to Post Tender Clarification.

The activities at this stage must be carried out in a carefully managed manner that supports the Principles of Procurement.  

You should consider whether or not the commodity/service you are buying is capable of being catalogued or not.

This simple Guide to Making Content Decisions at the bottom of the Pecos Content Management page, will guide the buyer in the right direction. 

If the commodity/service you are buying is to be catalogued, this electronic content must be provided for the contract via Pecos Content Management (PCM) . 

Sometimes it is appropriate to build the ITT documents in a format where the evaluation is based on catalogue submission.  If this is the case, the Contract Notice or the invitation to confirm interest as a result of a Prior Information Notice (PIN) should detail this clearly. Further guidance is provided at the notification of contract award decision and the develop documents stages.

The key characteristics for each sub-commodity/service can now be identified and agreed by using the Key Commodity/Service Characteristics template.

Once you have identified the specific products and services, it is now important to consider their specific environmental or social characteristics.  

You should use labels (if they exist in your marketplace) that comply with these characteristics e.g. those relating to fair trade.  (Please note: note bidders should be allowed to offer other proof of compliance).

You should also consider whether you should include special conditions of contract relating to the performance of the contract.  This may cover:

• economic,
• innovation-related,
• environmental,
• social or
• employment-related conditions.

It is a legal requirement that each contract includes conditions which are reasonably necessary to ensure supplier compliance to environmental, social and employment law.  These laws must be linked to the subject matter of the relevant contract. These conditions of contract must be included in the procurement documents.

At this stage you may want to consider how the products/services are provided e.g. electronic purchase orders, purchasing card, consolidated invoices and self-billing.

If your procurement is of a Digital or ICT nature, consideration must be given to the Digital Public Services Scotland Programme. This strategy sets out the collective ambitions and national level actions at sector, cluster or organisational level.  Since this strategy release more Current Standards, Guidelines and Recommendations have been developed as outlined within the ICT High Level Operating Model.

Please refer to Example of Care and Support Services Service Tree found above (Residential Care).