Regulation 107 – Qualitative selection

Commentary

This Regulation provides the Minister for the Cabinet Office with the possibility of issuing mandatory guidance for the qualitative selection of economic operators (Regulations 57 to 65), within the constraints indicated in this Regulation (Regulation 107(5)).

At the time of writing (December 2016) this is yet to happen and any intervention by the Minister would be constrained by limitations imposed by Directive 2014/24/EU which restricts the possibility of Member States creating their own “custom made” grounds for exclusion.

Paragraph 3 provides examples of what such guidance may constitute   – for example, the kind of questionnaires used and how information should be assessed. These are both traditionally hot topics in procurement due to the perception contracting authorities have in the past used very demanding qualitative selection criteria to reduce the number of potential tenderers.

The final two paragraphs institute an obligation of justification (reportable deviation) in case the guidance is not followed. From paragraph 4 it appears that each reportable deviation (as to be defined in the guidance) warrants a report to the Cabinet Office.

It appears that a reportable deviation will not lead to any implication on the actual procurement and there is no indication either of what consequences the contracting authority may face in case it does not comply with the obligation of reporting the deviation.

Last modified: December 8, 2016 by Pedro Telles

107.—(1) Contracting authorities shall have regard to any guidance issued by the Minister for the Cabinet Office in relation to the qualitative selection of economic operators.

(2) In this regulation, “qualitative selection” means the processes by which, in accordance with regulations 57 to 65, contracting authorities—

(a)select economic operators to participate in procurement procedures; and

(b)decide whether to exclude economic operators from such participation.

(3) Such guidance may, in particular, relate to—

(a)the use of questionnaires for the purposes of qualitative selection, including the avoidance of burdensome, excessive or disproportionate questions;

(b)the assessment of information relevant to qualitative assessment.

(4) Where a contracting authority conducts a procurement in a way which represents a reportable deviation from the guidance issued under this regulation, the contracting authority shall send to the Cabinet Office a report explaining the deviation.

(5) For that purpose, something is a reportable deviation only if it falls within criteria laid down for that purpose in guidance issued under this regulation.