Byte Size Procurement Updates – The Selection Questionnaire ("SQ") Byte 4 – Changing the SQ

SQ Byte 4 – Changing the SQ

27/02/2017

This is the fourth in a series of short "SQ Bytes" looking at the Selection Questionnaire (SQ) issued by the Crown Commercial Service (CCS).

SQ Byte 1 provides an overview of the structure and content of the SQ and statutory guidance.

SQ Byte 2 looks at the scope and coverage of the SQ, including commentary on works contracts and the light touch regime.

SQ Byte 3 moves on to issues arising when using the SQ. It provides more detail on the content of the SQ, and a short explanation of the concept of reliance on capacities of third parties to satisfy selection criteria.

This SQ Byte 4 covers when and how you can amend the SQ.

SQ Byte 5 looks in more detail at the standard questions in Parts 1, 2 and 3 of the SQ.

SQ Byte 6 considers the interaction between the SQ and the ESPD.

SQ Byte 7 on self-cleaning, concludes the series.

SQ Byte 3 provided an overview of the content of the SQ and commented on the concept of reliance on the capacities of other organisations (third parties) to satisfy selection stage criteria. This SQ Byte 4 looks at  what can and cannot be changed in the SQ, reporting permitted changes (deviations) and use of additional questions.

Changing the SQ

Chnaging the Selection Questionnaire - Procurement

No changes permitted to Part 1 and Part 2 of the SQ

Contracting authorities cannot add to, change or delete any of the questions in Part 1 and Part 2.

The statutory guidance states at paragraph 13 that a contracting authority "…must not add to or change the questions in Part 1 or Part 2…".  The FAQs confirm that contracting authorities cannot add or delete questions from Part 1 or Part 2.

A contracting authority adding to, changing or deleting the questions in Part 1 or Part 2 will be in breach of the statutory guidance.  See SQ Byte 1 for our note on compliance with statutory guidance.

Changes permitted to Part 3 of the SQ

There is more flexibility in relation to the selection questions in Part 3 ("Part 3 questions"). Contracting authorities can choose to use some or all of the Part 3 questions.  They may amend the wording of Part 3 questions subject to self-reporting requirements. Contracting authorities may also add selection questions.

The general principle still applies, that all selection stage questions used by the contracting authority must be relevant and proportionate to the contract which is the subject matter of the procurement.

Contracting authorities do not have to use all of the Part 3 questions. Where a contracting authority decides to omit Part 3 questions it does not have to report that omission as a deviation to CCS.

Which questions to ask?

An early issue for a contracting authority to consider when planning a procurement process is whether the standard questions are relevant and proportionate to the contract. Where they are not relevant and proportionate contracting authorities should not ask those questions. 

Contracting authorities may also decide that it is not appropriate to ask some of the standard questions – for example, in some cases a contracting authority may decide not to ask any questions about economic or financial standing. This might be appropriate, for example, where the contract is low value, low risk or payment does not occur until delivery of the contract is complete.

Having decided which Part 3 questions are relevant and proportionate, the assumption is that contracting authorities will use the precise wording of those questions. Paragraph 32 of the statutory guidance states that the "expectation is that you do not deviate from the questions set out in Part 3…"

Where a contracting authority does wish to deviate from the precise wording of the Part 3 questions they must report this. Paragraph 12 of the statutory guidance explains that a deviation must be reported, unless it is of a type which makes it a non-reportable deviation.

Reporting deviations

Paragraphs 31 to 37 provide information on reportable deviations, non-reportable deviations how to report deviations.

Reportable deviations:  Contracting authorities must report:

  • Changes to the wording of the standard questions
  • Changes to the wording of the instructions
  • Additional questions that are included which are not specific to the individual procurement

Non-reportable deviations: Contracting authorities do not need to report:

  • Project specific questions developed in line with the statutory guidance
  • Simple amendments to make questions compatible with e-procurement systems
  • Standard questions which contracting authorities have decided to omit.

How to report deviations: Contracting authorities are required to report relevant deviations to the CCS Mystery Shopper Service using a specified e-mail address. There are no time limits specified for the reporting of a deviation and it is not an approval process.  

The report should include:

  • A covering letter or e-mail which must explain the reasons for any deviations - the explanation must demonstrate that the deviations are relevant, proportionate and linked to requirements of the contract and contract delivery
  • Confirmation that the deviations have been approved by the Head of Procurement or equivalent in the organisation
  • A copy of the questions template or supplier selection process which clearly shows the deviations - this could include a document summarising the deviations.

Repeat reports: Contracting authorities do not need to report repeatedly the same deviation.

Example – Relevant experience

Part 3 Question 6.3 asks the supplier to provide an explanation of why they are unable to provide at least one example of relevant experience.

Question 6.3 refers to the type of explanation the contracting authority is seeking using two examples - new start-ups or provision of services other than under a contract.

A contracting authority may decide to clarify what an explanation may cover by adding, as a standard amendment for all of its SQs, some other examples of information it would welcome in response to question 6.3.

The additional wording would be a reportable deviation as it changes the standard wording, but it only needs to be reported once.  The contracting authority can explain in the report that the revised wording will be used in all procurements using the SQ.

What are the consequences of reporting a deviation? The contracting authority does not submit the report for approval by CCS Mystery Shopper. It is provided for information purposes. Where a contracting authority reports a reportable deviation in the correct manner and format then it should have satisfied its obligations under the statutory guidance.

What are the consequences of a failure to report a deviation or failure properly to report a deviation? Failure to report or properly report a deviation will be a breach of the statutory guidance and may expose the authority to challenge and/or a Mystery Shopper investigation.

Additional selection questions

Contracting authorities are permitted to ask additional selection stage questions. The CCS envisages two types of additional questions:

Additional questions which are not specific to the individual procurement - these are reportable deviations.

Additional project specific questions developed in line with the statutory guidance – these are not reportable deviations.

Is it better to amend Part 3 questions or add new questions?

In practice a contracting authority may find it easier to add project specific questions rather than amend existing questions to tailor them to a particular project. This is because additional project specific questions are not reportable deviations whereas amendments to tailor the standard question are reportable deviations, incurring an extra administrative burden. Adding questions can, however, result in rather unwieldy documents which do not have a clear flow and may be repetitive. This can be remedied to a certain extent by adding questions within the body of the document (taking care not to change the main numbering) rather than tacking on an additional questions section but it is still not an ideal solution.

Contracting authorities need to weigh up the requirement to report deviations and the additional work that creates against the need for clear, user-friendly selection stage questions. A one-off report to CCS Mystery Shopper providing a copy of a standard tailored version of Part 3 may be sufficient to deal with many standard procurements.

In SQ Byte 5 we will look in more detail at some of the questions in the SQ and also suggest how to present the SQ as part of the wider package of procurement documents.

 

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