One of the most frequent questions we are asked at Tenders Direct is ‘Am I entitled to feedback if I get knocked out at the PQQ stage?‘ This is a very important question as pre-qualification is used much more often in the UK than in the rest of Europe. The chart below shows the relative proportion that each of the four main tender procedures (Open, Restricted, Competitive Dialogue or Negotiated) was used in the UK and in Europe.
Of the four procedures, it is only the Open procedure that doesn’t involve a separate pre-qualification stage, which means that in the UK more than 70% of public contracts being tendered require suppliers to complete a pre-qualification questionnaire (PQQ), while in the rest of Europe this is only required 20% of the time! So why is there such a stark difference in approach?
The main reason for having a qualification stage is to reduce the number of bidders to a manageable level so that the contracting authority doesn’t have to evaluate complete tenders from a large number of suppliers who are unlikely to be awarded the contract. But in many of the European Union member states, particularly in Eastern Europe, it has historically been problematic attracting sufficient bidders to have a genuinely competitive process. In contrast in the UK, and the other member states with a well developed supply side economy, there have been plenty of suppliers willing to invest the time and money to complete the qualification process.
As a result, in the UK, the majority of bidders get knocked out at this initial stage and although there have been clear rules on providing a debrief to suppliers who get knocked out at the tender stage, until recently it has been much more difficult to get an explanation of why you have been unsuccessful at the PQQ stage.
This has now been clarified by the The Public Contracts (Amendment) Regulations 2009, which came into force in December 2009, although you may still find that many procurement officers are not fully aware of their obligations. When they introduced these regulations the UK Government took this opportunity to clarify that in most situations it is necessary to notify applicants when they are excluded from a procurement exercise at a stage that occurs before the contract award decision is made (for example, following prequalification in a restricted procedure or downselection in a competitive dialogue). There are three main reasons for this:
- First, there are obligations in the EU Public Procurement Directives to notify candidates or tenderers of the reasons for their elimination upon request, and so it is implicit that the EU legislator intended that candidates and tenderers would need to be notified in order for them to be able to make the request for reasons. Having an explicit obligation to notify is therefore clearer.
- Secondly, candidates and tenderers have to bring legal proceedings within certain timeframes, and those time periods start when the grounds for bringing a claim first arise. For a candidate alleging inappropriate exclusion, this is likely to occur at the point when the contracting authority notifies the candidate that they are being excluded.
- And thirdly, there has been some uncertainty regarding the standstill requirements, i.e. precisely who needs to be informed once the decision to award the contract has been reached. By making it explicit that candidates excluded at an earlier stage must be notified at that point, it clarifies that there is no further requirement to notify them again at the final stage before contract award.
Regulation 29A reads as follows:
Where a contracting authority decides, prior to the stage at which it makes a decision to which regulation 32(1) (award decision) applies, to exclude an applicant, the contracting authority shall notify the applicant of that exclusion.
Regulation 32 then states the information that must be provided which is:
- The reasons why the candidate was unsuccessful
- The reasons for the decision, including the characteristics of the successful tender, the score (if any) obtained by
- The candidate
- The other candidates who have progressed to the next stage
So in other words if you are knocked out at the PQQ stage of a public contract then the purchaser is required to tell you the reasons for your exclusion. There are no particular timescales set-out but it is implicit that the information should be provided promptly, so that action can be taken to rectify the situation if necessary, i.e. before the invitation to tender (ITT) is sent out to the successful candidates.
Hi Bev
Apologies for the delay in our reply on this one.
I can confirm that it is still only the open procedure that doesn’t involve a separate PQQ or Selection stage. You still have to have a selection stage but it goes out at the same time as the ITT or award stage documents.
In regards to the timeframes, in the Public Contracts Regulations 2015 it states that the timeframe for responses to an open procedure is 30 days for both selection and award stages if using electronic submission, and for a restricted procedure the selection stage is generally 30 days and no less than 15 with the award stage being 10 days.
I hope this answers your questions. Please let me know if you need any further information.
Gemma
Hi,
Can I check if it is still the case that “Of the four procedures, it is only the Open procedure that doesn’t involve a separate pre-qualification stage”? and is there a minimum time period that is given for completing the PQQ?
Thanks, Bev
Hi Tim
I know this is an old thread and hopefully you still get notification of this question.
We have recently completed a tender for a large Cathedral in the UK, there was no PQQ stage this went straight to the ITT stage. Where we spent a long time preparing the document, doing costing and such. As with most tenders we done, the supposed reply never came on time and it took me 3 weeks of chasing to receive a one sentence email saying we have been unsuccessful. From that I have asked for detailed feedback on our tender documentation which was clearly broken down into designated categories by the issuer. They have refused to give me any feedback other than to say we were higher cost than the winning bid. But this doesn’t account for the other percentage of the tender.
I basically feel as though we are being ignored and that the tender was solely a method to appease the board but with the winning bidder probably being their current supplier.
Where do I stand on getting the feedback I require, because basically they have annoyed me now and I want them to justify my hard work.
Hopefully this thread is still running, thanks for your help
Hi Kevin,
Thanks for your question.
I can see and quite understand why you feel so frustrated that you are being given the brush off.
You don’t say who the buyer was, the value of the contract or whether it was advertised in the Official Journal (OJEU) or not, so I’m working slightly blind, but I’ll do my best to provide you with some answers.
Your position is strongest if the contract is governed by the Public Contracts Regulations 2015, or the previous 2006 version of the Regulations. This will be dependent upon whether the buying organisation is a contracting authority:
“contracting authorities” means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law, and includes central government authorities
and secondly, the value of the contract, the threshold of whether it is covered by the regulations is determined by the type of authority. For central government the threshold value is £111,676 and for local authorities the threshold is £172,514. If the contract satisfies those two criteria then Public Contracts Regulation 55 applies. This Regulation requires that on request from the candidate or tenderer concerned, the contracting authority shall as quickly as possible, and in any event within 15 days from receipt of a written request, inform—
It’s the third of these that I think is most relevant to you, i.e. the characteristics and relative advantages of the successful tender. In plain English this means an objective explanation of why their evaluation considered another tender to be better than your bid. If this does apply, then send a request to the authority, citing Regulation 55 and requesting a detailed explanation of why the other tender was considered to be better.
If the Public Contracts Regulations don’t apply then another option is to use the Freedom of Information Act, to request full details of their evaluation. There are a number of precedents where the Information Commissioner has ruled in favour of disclosure where public bodies have tried to rely on one of the exemptions. It’s late on Friday after a hard week when I’m writing this, but I’ll add some further information on using this process to get the information you want next week.
if unsuccessful in a tender in the private sector; is there any obligation on the awarding company to give feedback? Can you refer to the freedom of information act to secure feedback?
Many thanks
Miles Vartan
Hi Miles,
No, I’m afraid there’s no obligation on a private sector company to give feedback. That doesn’t mean they won’t if you ask, as good feedback may help you to give them an improved proposal in the future.
The Freedom of Information Act only applies to public sector organisations at the moment. There are proposals to extend it to companies that have government contracts, but I’m not sure that will see the light of day.
Tim
Thank you for your prompt reply
dear sir or madam
Having completed a PQQ F132 Birmingham City Council
Submitted ON TIME
All questions completed, allegedly not at this point in time.
Reason/cause
we do not exactly know, although we have been given two seperate reasons, the second following the withdrawal and apolagy for the apparent “Oversight” on part of the Council. They then said that our PQQ is now incomplete, the two new questions that were added after the PQQ questionaire was originally sent to me, questions 3.5 had two questions which required a deletion of either YES/NO whichever appropriate, as an overseas, non UK based tenderer, we stated that we would adhere and comply with all current UK Legislation and requirements from the BCC on the question of “INSURANCE”, when, upon our initial disqualification prior to the BCC rescinding their diaqualification, we were informed that with exception on this one single point, our tender was very good and acceptable to proceed to the next round. Now all of a sudden there is another point raised concerning the non completeion of our PQQ tender document, why could it be OK one day with the exception of the ONE point in question, and after reinstatement, suddenly it is in complete.
In the prologue to the document prior to completion, points and how they are awarded are listed. The points in question that were added after the opening date for invited parties and the original document sent out, I received a single sheet with the additional two questions, along with amended requirements, the points table and instructions were not included too contain the changed questions, can you offer some light, we are considering our position prior to initiate legal proceedings against the BCC Procurement department, what is your experience, we tick all the boxes in our tender, to lose against an adversaryis one thing, obfuscation down to what appears pedantics is not correct. I tried to insert the single page into the completed PQQ document, but it was not electronically possible so it was sent as a seperate attachment along with other information, some how it has got seperated, who knows! but we are not talking about the supply of 24 brown envelopes here, it is several million pounds, plus our bid is the best financial,technical,logistical, sociological, and, ecologically there is NO technology existing in the market place that we will be bringing too the table as a component of our tender. insurance 3.5, 3.5.1. 3.5.2 this was all originally, then along came 3.5.3 & 3.5.4 on the single sheet, if this single sheet was so important why was I not sent a complete new PQQ questionaire, I would greatly appreciate your comments.
Yours respectfully
Gary Birch
Gary,
Firstly sorry for taking so long to respond to your question.
It does seem as though you are being treated at least harshly and possibly unfairly. The over-riding principles which must be applied to public procurement within the European Union are that the processes must be transparent and non-discriminatory.
As I stated in the main blog article a public sector organisation, such as Birmingham City Council, is required to give you a clear explanation of why they have decided to exclude you at the PQQ stage. It seems inexplicable that you can be given one reason on one day and then another reason another day. Apart from anything else this is clearly not transparent.
Having decided that you consider the process to be unfair, the next question is what can you do about it? My advice would be to follow these steps and probably not necessarily wait for one step to reach its conclusion before starting the next step, particularly if time is pressing:
1. Write to the procurement department at Birmingham City Council setting out your grievance clearly, stating your dis-satisfaction at the way they have handled the process so far and your intention to take matters further if they do not resolve the situation to your satisfaction.
2. Contact the Supplier Feedback Service at the Office of Government Commerce. The OGC has been absorbed into the Efficiency & Reform Group within the Cabinet Office, but I am informed that the feedback service is still operational. There have been mixed reviews regarding the effectiveness of this service, but it certainly won’t do any harm to bring your case to their attention.
3. You say that you are a non-UK based company. If you are based in another European country, there are officials in your own country who are members of the Public Procurement Network who should be able to advise you and will have links to officials in the UK.
4. There is also a network of SOLVIT centres throughout Europe. SOLVIT is designed to resolve problems relating to the mis-application of EU law and so may be able to intervene in this case.
5. In the case of a cross border complaint, i.e. if you are located in one EU member state and the public sector organisation is located in another member state, you can complain to the European Commission’s Secretariat General. The Secretariat will pass your complaint on to the relevant Directorate within the Commission, which in this case will be the Internal Market Directorate, who will then evaluate your complaint and decide whether to investigate, or not. This can be an effective tool, but in my experience in takes a very long time to get under way and so is unlikely to resolve matters in time for you to be re-admitted to the tender procedure.
6. You can raise an action in the Courts to suspend the contract award process under the terms of The Public Contracts (Amendment) Regulations 2009 although I would caution that this can be a expensive and uncertain way in which to proceed and would recommend contacting a law firm that specialises in public procurement before deciding to adopt this approach.
Regards
Tim Williams