5.6  Evaluation in accordance with public procurement

Evaluation by a public sector Client is not restricted to price comparisons, and pursuant to the current 2015 Public Contracts Regulations must be on the basis of the 'most economically advantageous tender'. This can be 'be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing', and may also 'include the best price-quality ratio, which shall be assessed on the basis of criteria, such as qualitative, environmental and/ or social aspects, linked to the subject-matter of the public contract in question'.

Evaluation of the most economically advantageous tender can include criteria consistent with the objectives of improving both economic and social value, for example permitting the Client to evaluate 'quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics'. Qualitative evaluation may be undertaken alongside price evaluation as part of a price-quality ratio or may be the only basis for evaluation where 'the cost element may [also] take the form of a fixed price or cost on the basis of which economic operators will compete on quality criteria only'.

There is no requirement under the current Public Contracts Regulations that every element of a project brief or of a sample project brief must be fully priced prior to selection. There is also no prohibition of the early conditional selection of a Principal Contractor and other contractors and supply chain members to undertake pre-construction phase activities, nor a requirement that evaluation criteria for the most economically advantageous tender should include a fixed price for the project.

The current Public Contracts Regulations describe a range of selection procedures for individual projects and for frameworks which include:

■  The 'Open Procedure' which comprises a single-stage invitation for any party to bid with no negotiation

■  The 'Restricted Procedure' which comprises a pre-qualification stage before a shortlist of parties are invited to bid, again with no negotiation

■  The 'Competitive Procedure with Negotiation' and the 'Competitive Dialogue Procedure', each of which comprises a pre-qualification stage before shortlisted parties are invited to bid and to enter into structured negotiations or dialogue.

In December 2020, the government launched consultation on new post-Brexit procurement rules in its Green Paper 'Transforming Public Procurement'. This Green Paper proposes significant changes to the current Public Contracts Regulations and may introduce new procedures and options governing selection and evaluation of team members for public sector projects.

A public sector procurement process using early supply chain involvement (ESI) (as considered in Section 6) can comply with the current Public Contracts Regulations.