When running a procurement exercise, there may be some circumstances where you wish to award some lots and not others.

For example:

• Delaying a contract award on a specific lot because of a delay to the standstill period but still awarding the other lots in the procurement exercise.
• There are no compliant bids on a specific lot and an alternative exercise may be required for this lot but the bids on the other lots are compliant and can still be awarded.

To support this, in Public Contracts Scotland (PCS), you will have the capability to award selected lots through separate award notices.

The process in PCS is:

1. Select your notice and click on “award”
2. The new page will be displayed with all lots (if any). If there are no lots, the award process stays the same
3. You will need to deselect lots you don’t want to award and then click  “award”.

There are no changes to the award notice itself and the award process will also stay the same.

For contracts created via a Dynamic Purchasing System (DPS), Contract Award Notices can either be:

• published individually for each and every award, or
• can be grouped together, published on a quarterly basis within 30 calendar days of the end of each quarter.

The Public Contract Scotland (PCS) Contracts Register module provides buying organisations a facility to operate a private register of all contracts they have in place, and a public register of these contracts to meet the obligations of the Procurement Reform Act (Scotland) 2014.

When you publish a PCS award notice an entry is automatically made in your contracts register. Your organisation will need to make the decision whether to make the contracts register publicly viewable or not.

The PCS contracts register will pull through the contract value from your contract award notice. You should always be as open and transparent as possible when completing this field. This field can be manually amended but all relevant amendments have to be manually duplicated in the Scottish Procurement Information Hub (there is no integration between the two systems for manual amendments).

Even if you withhold the contract value from a contract award notice, this does not exempt the information being subsequently disclosed under the Freedom Of Information (Scotland) Act 2002 (FOISA). To withhold information under FOISA, the information would have to, or be likely to, cause substantial prejudice. Also, the public interest in withholding the information would have to outweigh the public interest in its release.

Detailed contracts register user guidance can be found in PCS.

PLEASE NOTE:  if you do not use PCS for producing a contract register, you still must produce a publicly available one.

The contract award notice must include a community benefits statement when:

• the estimated value of the contract is equal to or greater than £4,000,000

• the Procurement Documents stated community benefit requirements will be imposed in the contract,

If included, this statement must include the benefits you believe will derive from community benefits clause(s) through the life of the contract.

You can withhold information from the contract award notice or the conclusion of the framework agreement where publication:

a) would impede law enforcement;

b) would be against the public interest;

c) would affect the commercial interests of particular tenderer(s), whether they are public or private, or

d) may impact fair competition between tenderers

Where the publication would affect the commercial interests of particular tenderers, you must demonstrate that the commercial interests of the company concerned would definitely be prejudiced by releasing the information.

Specifically in relation to the procurement for Care and Support Services, on the award of a contract or conclusion of a framework agreement, you should communicate the outcome of the procurement exercise to the people who use the services and also to their carers.

A supplier should notify people who use the services of a cancellation of a care service’s registration and any arrangements which are to be put in place to ensure that those who use its services and their carers receive an on-going and similar service. It would be appropriate for this to be done in collaboration with the organisation. An organisation should also communicate the outcome of the procurement exercise to any existing suppliers that have chosen not to tender.

Your Organisation may withhold certain information, regarding the contract award, where the release of such information would:

• prevent the enforcement of the law;
• be contrary to the public interest;
• would affect the commercial interests of particular tenderer(s), whether they are public or private, or
• may impact fair competition between tenderers.  

As with all aspects of the Procurement Journey, the activities at this stage must be carried out in a carefully managed way that supports the Principles of Procurement. 

Please note, if the commodity/service was deemed to be suitable for cataloguing, the buyer should set up the successful tenderer on the Pecos Content Management System (PCM) to ensure that they can prepare the catalogues where it has not already been done.

PCM is not appropriate for Care and Support Services 

A buyer should chair the debriefing meeting. Other User Intelligence Group (UIG) members or end-users can still provide guidance and/or assistance.

Where a formal debriefing meeting is required, this may involve representatives from both operational areas and procurement professionals.  This will ensure the debriefing is undertaken by experienced and fully trained personnel.

You should ensure that technical/operational representatives understand their role in the debriefing.

There are defined timelines for standstill that must be followed before your organisation can enter into a contract.

These do not apply where:

• the contract or framework agreement is exempt from the requirement for prior publication of a contract notice;
• there are no unsuccessful tenderers; and
• a notice is not required to be given under regulation 85(4) of the Public Contracts (Scotland) Regulations 2015 (notices of decisions to award a contract or conclude a framework agreement).

The standstill period is 10 days where the standstill notice is sent to all tenderers by electronic means.  The 10 days end at midnight at the end of the 10th day after that on which the last notice is sent.

Where the notice is sent to any tenderers by other means, e.g. by post, the standstill period is 15 days ending at midnight at the end of the 15th day after that on which the last notice is sent.

If unsuccessful tenderers have any concerns about the process, and/or its outcome, they should be raised during the standstill period.

Before approaching the court seeking any legal remedies, a tenderer must inform the Organisation and explain the basis for its court application. The Organisation will usually be aware of any legal challenge prior to the end of the mandatory standstill period.

When court action has commenced, your Organisation cannot award the contract unless the court permits this.  This is usually after your Organisation has successfully applied to the court.

Even after contract award, a supplier can approach the court seeking damages (see remedies section). The standstill notice communicates the intent to award contract and should be sent as soon as possible after the contract award decision has been made.

A notification must also be issued to each candidate providing, where applicable, the grounds for any decision:

• not to conclude a framework agreement for which there has been a call for competition;
• not to award a contract for which there has been a call for competition;
• to recommence the procedure; or
• not to implement a Dynamic Purchasing System (DPS) for which there has been a call for competition.

Standard template notices can be found at: Standard Forms and Documentation.

Your Organisation can withhold certain information regarding the contract award, where its release would prevent the enforcement of the law or be contrary to the public interest, would affect the commercial interests of particular tenderer(s)(public or private) or may impact fair competition between tenderers.  

As with all aspects of the Procurement Journey, the activities at this stage must be carried out in a carefully managed way that supports the Principles of Procurement

In addition to the standstill notice the, Organisation must also respond within 15 days to a written request from a tenderer to:

• advise an unsuccessful tenderer of the reasons for the rejection of its request to participate;
• inform an unsuccessful tenderer of the reasons for the rejection of its tender, including any decision that the goods or services do not meet the performance or functional requirements;
• in the case of an unsuccessful tenderer which has not been informed by a standstill notice, confirm the characteristics and relative advantages of the successful tender, including the name of the successful tenderer; and
• provide the successful tenderer with a description of any improvements the Organisation considers that they could have made to their tender.

Please note, if the commodity is deemed to be suitable to be set up as a catalogue, the buyer should set up the successful tenderer on the PECOS Content Management system to ensure that they can prepare the catalogues, where it has not already been done.

If court proceedings are served to an Organisation during the standstill period, then the Organisation cannot enter into the contract.

Organisations must ensure a process is in place to inform all relevant staff when proceedings are served. This process should also ensure that appropriate action is taken.

Tender evaluation can only take place once the deadline for tender submissions has passed. The time taken to evaluate the returned submissions will vary from project to project.  This will depend on the complexity and the number of responses received.  You should aim to provide approximate timescales for this stage as part of the invitation to tender (ITT) document.

The tender evaluation timescales may reduce if PCS-Tender evaluation is being used.  This is because  the comments and scores from all evaluators can be collated automatically. This information can also be used as the basis of the debriefing report.

Evaluation must always make sure equal treatment is undertaken in a proportionate, objective, transparent and non-discriminatory manner. 

An evaluation panel of at least two people should be established.  The panel should consist of individuals familiar with the organisation’s priorities and goals, who demonstrable technical ability to evaluate tenders.

An organisation may also consider including panel members with relevant knowledge or experience across particular aspects of the technical and quality evaluation. For example, a human resources or trade union representative to help evaluate bidders’ responses to a Fair Work practice criterion. See the Fair Work First in Procurement guidance for more information. 

Ideally, the panel membership should be consistent throughout the entire process from pre-qualification to presentations and site visits.

The evaluation panel should be able to withstand any scrutiny. and It is the responsibility of the organisation to ensure no member has a conflict of interest which would prevent them from making a fair and objective tender assessment.

A moderation meeting should be held after you have collated the scores given.  At the moderation meeting the evaluators come together to discuss and agree their final scores.

The process to agree the final scores must be fully transparent and documented.

The buyer should evaluate the commercial aspects of the tenders separately, including the price evaluation. 

As a matter of good practice, no member of the evaluation panel should assess both the quality/technical elements and the commercial elements of the tender.

The evaluation criteria and scoring methodology should have been determined as part of the Develop Documents stage and published to tenderers in the Invitation to Tender (ITT) or PCS.

The role of the buyer in the evaluation panel is to ensure an impartial and objective approach is taken to the evaluation of tenders. Some suggested 'dos and don’ts':

The tender evaluation stage may be accompanied by presentations/site visits.

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

You must ensure the evaluation panel provides justification for their scoring.  This will help when preparing standstill notices and debriefing suppliers.

A full justification of scoring is especially important where a bid has failed to meet the 'acceptable' expectation set out in the evaluation criteria. A record should be kept to ensure fairness and transparency of the process.

If PCS-Tender is being used, the justification for scores should be recorded on the system.

Presentations and site visits can be included as part of the evaluation process. These offer the opportunity for the evaluation panel to gain a clearer and deeper understanding of the tenderers proposal.

The purpose and anticipated outcomes of the presentations and site visits must be made clear in the Invitation to Tender (ITT) documentation.  This should include details of how the visits will count towards the overall evaluation of tender submissions.

For the procurement of services which have a direct impact on the public, for example Care and Support Services, an organisation should consider whether it is appropriate for people who use services and their carers to be involved in decision making.For example, participation in site visits and interviews with service providers or representation on the evaluation panel. The participation of these people must be consistent throughout the process. For example if they are involved in interviews with service providers, they must participate in all of the interviews arranged with service providers. Care must be taken, when involving people who use services and their carers in the evaluation of tenders, to ensure that they:

• understand the evaluation process and are clear about their role in it;

• understand the criteria against which tenderers are to be evaluated;

• understand their obligation to be objective and impartial and to treat tenderers equally;

• understand issues relating to the commercial confidentiality of service providers;

• are able to commit the necessary time; and

• receive appropriate training and support.

You should consider on a case-by-case basis involving people who use services and their carers in the decision making. For example, it may be appropriate to involve them in the evaluation of tenders for the delivery of a discrete service for a small number of individuals.

The Organisation should invite enough bidders to generate competition.

Organisations may limit the number of candidates meeting the selection criteria invited to tender or to conduct a dialogue. The minimum number of qualified bidders that may be indicated by an organisation are:

• Restricted Procedure: the minimum number of bidders is five;
• Competitive Procedure with Negotiation, Competitive Dialogue Procedure, and Innovation Partnership procedure: the minimum number of candidates is three.

Bidders must ensure their bid is submitted under the rules of the competition and before the specified deadline.

In exceptional circumstances a tender that arrived after the deadline may be accepted into the competition. The policy for addressing late tenders  are subject to the internal governance for your organisation, legislation and case law.

If there is any doubt about whether to allow a late tender into the competition, advice from your Procurement Department and/or legal advice should be sought. There will need to be a clear audit trail of the handling of late tenders and any decision taken.

If PCS-Tender is being used, the buyer will be able to identify the bidders which have submitted late tenders.  The buyers can then determine whether to open the late tender or reject it.

It is best practice for the buyer to notify the bidders if the late tender has been accepted or rejected.

You may continue with the procedure if the number of candidates meeting the selection criteria and minimum requirements is below the minimum number set. However, to do so you  must invite all candidates with the required capabilities.

Where bidders issued with a copy of the ITT do not submit a response, you should ask for reasons why. These reasons should be recorded and filed to aid future strategy development.

If the only tenders which are received for an Open or Restricted Procedure are irregular or unacceptable (including tenders above the established budget), then you may apply:

• a competitive procedure with negotiation; or
• a competitive dialogue.

In these cases, you do not need to publish a Contract Notice when the procedure includes all of, and only, the bidders meeting the selection and exclusion criteria (who submitted tenders as part of the original procedure).

If only one tender response is received you should consider why this is.  For example, has the market been restricted in some way or has the opportunity been unattractive? In such cases you should consider restarting the process.

If you are satisfied that there are no particular reasons for the submission of only one tender response you can continue with the procedure. This can only happen is the one bid is compliant with all requirements.

The above should be conducted in accordance with your internal governance procedures.

You may consider the use of a Non-Competitive Action (NCA) in cases of exceptional circumstances.  You must receive approval from the appropriate person in your Organisation e.g. Head of Procurement, before proceeding.

Please note, there is no single checklist of situations or factors to be considered. The decision whether to approve a NCA request will need to be made on a case-by-case basis. 

Some situations may include:  

Extreme urgency - competition is not required when a contract needs to be put in place urgently to respond to a circumstance which is unforeseeable by, and out-with the control of your organisation (e.g. severe and unprecedented weather conditions, emergency pandemic conditions). Any contract awarded through the NCA process must only cover the urgent (immediate) need.

Only one possible supplier - you will need to provide objective evidence that will withstand scrutiny and audit to support the decision that there is not an alternative or equivalent product or service available in the market which will meet your needs.

The Public Contracts (Scotland) Regulations 2015 (Reg 33) provides further guidance on when you may award a public contract following the negotiated procedure without prior publication of a contract notice or prior information notice.

For example, only to be used when:

1. No tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure.  This is provided that the initial conditions of the contract are not substantially altered, and that a report is sent to the Ministers if requested;
2. Where the supplies or services can only be supplied by a particular supplier for any of the following reasons: 

   (i) The procurement aim is the creation or purchase of a unique work of art or artistic performance;

   (ii) There can be no competition for technical reasons (where no reasonable alternative or substitute exists and the lack of competition is not due to artificially narrowing the scope of the procurement);

   (iii) To protect exclusive rights, including intellectual property rights (where no reasonable alternative or substitute exists and the lack of competition is not due to artificially narrowing the scope of the procurement);

3. Where (but only if strictly necessary) due to extreme urgency as a result of events unforeseeable by your organisation, the time limits for the open procedure, restricted procedure or competitive procedure with negotiation cannot be complied with.

Questions submitted by potential tenderers and the answers provided by your organisation must be anonymised. These must also be circulated to all potential tenderers involved in the process.

You must supply responses to all tenderers no later than six days before the deadline for tender responses. This time limit changes to not later than four days for the open, restricted and competitive procedure with negotiation when the accelerated procedure is used. 

Deadlines must be extended where:

• Additional information requested by a tenderer, is not supplied at least six days before the deadline. This information must have been requested in good time and be significant or;
• Significant changes are made to the procurement documents. 

The time limit changes to not later than four days when the accelerated procedure is used. 

Using an electronic tendering system, for example Public Contracts Scotland - Tender, allows the receipt and circulation of questions and answers.

Public Contracts Scotland offers similar functionality via its bulletin board.

If you do not use an electronic system, clear instructions and contact details should be provided to all potential bidders within the ITT documentation. All communications during the procurement activity should be coordinated by you and documented.