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.