Qualitative selection under Reg.107 Public Contracts Regulations 2015

Reg.107 of the Public Contracts Regulations 2015 (PCR2015) establishes specific rules that contracting authorities need to comply with when they carry out qualitative selection activities, that is, when they select economic operators to participate in procurement procedures; and decide whether to exclude economic operators from such participation (see regs.57 to 65 PCR2015). 

Reg.107 PCR2015 mainly imposes the use of a standardised pre-qualification questionnaire (PQQ) and, failing that, an obligation to notify any 'reportable deviation' from the standard PQQ to the Mystery Shopper service within 30 days of publication of the PQQ (see brief comments here & here). 

Such obligation derives from reg.107(1) PCR2015, whereby contracting authorities shall have regard to any guidance issued by the Minister for the Cabinet Office in relation to the qualitative selection of economic operators. Such guidance is available here, and it includes the standardised PQQ. Pedro discusses in more detail what 'having regard' may possibly mean.

The content of the standardised PQQ is very relevant because, under reg.107(4) where a contracting authority conducts a procurement in a way which represents a 'reportable deviation' from the guidance, it must send to the Cabinet Office a report explaining the deviation. For that purpose, something is a reportable deviation only if it falls within criteria laid down for that purpose in guidance issued under this regulation [reg.107(5)].

This provision has been criticised for increasing the administrative burden of contracting authorities as a result of the obligation to report deviations from the standardised PQQ, as well as the legal uncertainty and the lack of substantive definition of what a 'reportable deviation' is creates and its likely impact in future litigation [for extended discussion, see L Butler, 'Exclusion, Qualification and Selection Under the UK Public Contracts Regulations 2015: The Copy-Out Copycat', to be published in M Burgi and M Trybus (eds), Exclusion, Qualification and Selection in Public Procurement (DJØF, 2016)].