FOI/202600520172 review of 202600516168 · FOI · clarification
Public sector procurement evaluation: FOI Review
Information requested
Original request 202600516168
1. Is it the government’s position that public sector procuring bodies need not be prescriptive in their questioning during procurement? Yes or No
2. Is it the government’s position that public sector bodies are not required to publish the full set of evaluating and marking criteria? Yes or No
3. Is it the government’s position that public sector procuring bodies can award marks to bidders for criteria not specifically declared within tender documentation? Yes or No
4. Is it the government’s position that it is accepted convention for bidders to be expected to exceed expectations to achieve full marks? Yes or No
Where considered beneficial, please provide any addition commentary and links to supporting guidance to assist in supporting and/or contextualising your Yes or No responses.
Response
I have concluded that a different decision should be substituted for the one you originally received.
It was determined in the original decision that the Scottish Government does not hold the information described in your request. The request arose from a specific procurement exercise and was initially interpreted as relating primarily to that exercise. However, having reviewed both the original request and the subsequent request for review, I consider it reasonable to interpret the questions more broadly as seeking information about the Scottish Government's general procurement guidance and position on these matters.
The original response referred you to sources of guidance that are provided by the Scottish Government for the use of public bodies who conduct public procurement exercises (the Scottish Procurement Policy Handbook, the Procurement Journey, and the Client Guide to Construction Projects). The response also provided details of how to contact the Scottish Government’s Single Point of Enquiry service if you have concerns about a specific procurement exercise, and have taken all reasonable steps to resolve the issue with the relevant contracting authority, but still have concerns.
However, it might not have been clear why particular sources of guidance were provided. To help clarify, I can explain that all public procurement processes must comply with the relevant Scottish legislation.
Different legislation applies depending on the value and nature of the contract. The Scottish Government expects public bodies which conduct public procurement exercises in Scotland to carry these out in a way that is compliant with legal requirements set out in relevant procurement legislation.
Which legislation applies is determined by the estimated value of a contract:
Goods and services contracts worth less than £50,000, and works contracts worth less than £2 million are unregulated. This means that procurement legislation does not apply; Goods and services contracts worth between £50,000 and £135,018, and works contracts worth between £2 million and £5,193,000 are regulated by the Procurement Reform (Scotland) Act 2014; Contracts worth more than these amounts are subject to The Public Contracts (Scotland) Regulations 2015.
There is also legislation relating to Utilities and Concessions, these are:
The Utilities Contracts (Scotland) Regulations 2016; and The Concession Contracts (Scotland) Regulations 2016
For completeness, the UK’s Procurement Act 2023 applies in Scotland, but not to devolved authorities (An authority is a “devolved Scottish authority” if its functions are exercisable only in or as regards Scotland, and (a) none of its functions relate to reserved matters, or (b) some of its functions relate to reserved matters and some do not (section 2(6) of the Procurement Act 2023), unless a devolved authority is participating in a procurement arrangement carried out by another contracting authority subject to the 2023 Act.
Therefore, exactly how a public body in Scotland might be expected to carry out a procurement will depend on the rules it is subject to. The guidance shared with you in response to the original request is intended to support public bodies in carrying out their procurement activities. Where requirements are mandatory, this is made clear in guidance. This guidance was therefore shared with you in order that you could consider the guidance relevant to the procurement exercise that prompted your request.
However, when taken together with the information provided in your request for a review, I have reached a different position, and with regards to the questions set out in your original request, my responses regarding general positions are as follows, with links to relevant guidance.
It should be noted that the principles of procurement apply to all relevant procurement activity regardless of value. This includes the principles of equal treatment and non-discrimination and transparency and proportionality which should be adopted by a contracting authority when running a competition.
1. Is it the government’s position that public sector procuring bodies need not be prescriptive in their questioning during procurement?
Public bodies might require additional information, or clarification on evidence submitted, and how this questioning is carried out will depend on the material shared and what further material is needed. However, evaluation criteria must be clearly defined in the procurement documents to ensure a common understanding of the requirements by all economic operators. These criteria must not be changed or waived during the procurement process.
See 6. Selection of tenderers and awards of contracts - Procurement Reform (Scotland) Act 2014: statutory guidance - gov.scot.
2. Is it the government’s position that public sector bodies are not required to publish the full set of evaluating and marking criteria?
Whilst your question is framed as a yes/no question, the applicable procurement requirements may depend on the value, nature and circumstances of the procurement.
However, the Scottish Government's general position is that evaluation criteria should be clearly defined and communicated to bidders in accordance with applicable procurement legislation and guidance in order to support transparency and equal treatment. Relevant guidance can be found within the Procurement Journey and the Statutory Guidance to the Procurement Reform (Scotland) Act 2014, which states that evaluation criteria must be clearly defined in the procurement documents to ensure a common understanding of the requirements by all economic operators. The precise information that requires to be disclosed may depend on the procurement regime and circumstances of the procurement.
3. Is it the government’s position that public sector procuring bodies can award marks to bidders for criteria not specifically declared within tender documentation?
No. As above, evaluation criteria must be clearly defined in the procurement documents to ensure a common understanding of the requirements by all economic operators. These criteria must not be changed or waived during the procurement process. See 6. Selection of tenderers and awards of contracts - Procurement Reform (Scotland) Act 2014: statutory guidance - gov.scot.
4. Is it the government’s position that it is accepted convention for bidders to be expected to exceed expectations to achieve full marks?
No. The Procurement Journey contains an example scoring methodology which suggests the following standard for achieving full marks: “Response is completely relevant and excellent overall. The response is comprehensive, unambiguous and demonstrates a thorough understanding of the requirement and provides details of how the requirement will be met in full”. See Award Criteria | Procurement Journey.
As stated above, the Scottish Government expects public bodies who conduct public procurement exercises in Scotland to carry these out in a way that is compliant with legal requirements set out in relevant procurement legislation. The Scottish Government publishes guidance to support these public bodies in conducting their public procurement exercises in such a way, and these public bodies may also have their own operational procedures and processes in place to ensure compliance with relevant requirements. The original response provided details of how to contact the Scottish Government’s Single Point of Enquiry service if you have concerns about a specific procurement exercise, and have taken all reasonable steps to resolve the issue with the relevant contracting authority, but still have concerns.
Therefore, in response to the points raised in your review request, I can confirm that section 17(1) of FOISA was not applied correctly. As set out above, the Scottish Government holds recorded information that allows us to provide a response to your questions. As my review outcome is that a new decision should be substituted the other points raised in your review request are addressed in my response (i.e. searches, interpretation, advice and assistance).
About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.
Contact Please quote the FOI reference Central Correspondence Unit Email: contactus@gov.scot Phone: 0300 244 4000 The Scottish Government St Andrew's House Regent Road Edinburgh EH1 3DG
Detected exemption language
There is also legislation relating to Utilities and Concessions, these are: The Utilities Contracts (Scotland) Regulations 2016; and The Concession Contracts (Scotland) Regulations 2016 For completeness, the UK’s Procurement Act 2023 applies in Scotland, but not to devolved authorities (An authority is a “devolved Scottish authority” if its functions are exercisable only in or as regards Scotland, and (a) none of its functions relate to reserved matters, or (b) some of its functions relate to reserved matters and some do not (section 2(6) of the Procurement Act 2023), unless a devolved authority is participating in a procurement arrangement carried out by another contracting authority subject to the 2023 Act. Therefore, in response to the points raised in your review request, I can confirm that section 17(1) of FOISA was not applied correctly.
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