The distinction between selection and award criteria is crucially important. Selection criteria are focused on "the bidder" and award criteria are focused on "the bid”. The buyer 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 the selection stage and cannot form part of the award stage (even if they were omitted from the selection stage in error).  However, you can apply different aspects at selection and award if relevant i.e. 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 quite separately, it is possible for buyers to conduct these stages simultaneously or in any order where the procedure allows.  For instance, when using an Open Procedure it may be desirable to assess the tenders (award stage) prior to checking minimum criteria are met when only a small number of bids have been received.  Where this is done you must still ensure that you verify the absence of grounds for exclusion and of fulfilment of the selection criteria.  This needs to 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.

Example areas that are commonly known as "selection" and "award" criteria are listed in the table below:

Organisations are required by law to include such conditions relating to the performance of the contract as are reasonably necessary to ensure that the bidder which is awarded the contract complies with environmental, social and labour law in performing the contract, providing that these are linked to the subject matter of the contract, and are indicated in the procurement documents.  To help meet this requirement, organisations should consider the Scottish Procurement Policy Note 09/2016 which includes guidance and contract conditions an organisation can adapt for use in its contracts.  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.

Bidders may be requested to state, in their tender or request to participate, the names and professional qualifications of the staff involved in the performance of the contract.

A clearly documented process must be followed throughout the award stage, as for the whole of the procurement process, in order to ensure there are no inconsistencies in the procurement process, which could ultimately result in a legal challenge.

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 to the requirements as long as it has been specified in the Contract Notice and in the Procurement Documents, together with the minimum requirements and how the variant will be evaluated. Variants cannot be considered unless this has been done and 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.

An organisation should also consider whether to allow potential service providers to set out options in relation to different TUPE scenarios within its tenders. If so, it should provide clear directions to tenderers to ensure that bids can be compared on a like-for-like basis.

As with all aspects of the procurement process, such decisions and actions must be made in line with your own organisation’s governance procedures and in any event, be in line with any stated intentions that were advertised in the relevant Procurement Documents.

Organisations are required by law to publish details of the criteria to be used to identify the supplier to whom the contract will be awarded. The Contract Notice must provide a brief description of criteria to be used for award of the contract. 

An Organisation must also specify in the relevant Procurement Documents the relative weighting which it will give to each of the criteria chosen to determine the most economically advantageous tender.  The weighting and score given to an award criterion should be considered on a case-by-case basis taking into account the other relevant criteria and the relative impact that each will have on the quality of the service delivery or goods supplied.  Weighting must ensure the appropriate balance between the quality and cost / price of the contract and be proportionate to the contract, taking care not to negatively affect the quality of the contract to be performed. It is best practice that respective weightings are agreed by the UIG before the Contract Notice is published and any documentation issued.

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.

The agreed and advertised award criteria and weightings must not be changed once they have been notified to the tenderers.

If your contract will require sub-contractors (and sub-sub contractors) you should evaluate at award stage how bidders will ensure payment of these sub-contractors throughout all stages of the 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:

Prompt Payment Award 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, they should not be awarded the contract unless there are extenuating circumstances.

See Fair Work First in Procurement guidance, for evaluation and award

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. 

Additional guidance on award criteria can be found in C&SS Award Criteria Guidance document.

In accordance with regulation 76(9) of The Public Contracts (Scotland) Regulations 2015, an organisation may now 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.