Selection Criteria vs Award Criteria: The Critical Legal Distinction

EU procurement law draws a sharp distinction between selection criteria (which assess the tenderer) and award criteria (which assess the tender). Regulations 56–58 of S.I. 284/2016 govern selection criteria: they relate to the economic and financial standing, and the technical and professional ability, of the tenderer as a company. Regulation 67 governs award criteria: they relate to the quality, price and other characteristics of the specific goods, works or services being offered.

The Dundalk case (Dundalk Shopping Centre v Lidl) and European Court of Justice case law have consistently confirmed that using company-level capability criteria at the award stage — for example, awarding marks based on company turnover or general qualifications — is unlawful. Each criterion must be applied at the right stage.

Selection criteria assess whether the tenderer has the capacity to perform the contract. They cover: financial capacity (minimum turnover levels, financial ratios, professional indemnity insurance, performance bonds); technical and professional ability (staff qualifications, past contract experience, quality certifications, health and safety record). Selection criteria are used to shortlist in a restricted procedure, or to check admissibility in an open procedure.

Selection criteria must be proportionate to the contract value and type. A common error is setting minimum turnover requirements at 3–4 times the contract value, which inappropriately excludes capable but smaller businesses. The OGP guidance recommends a maximum of twice the estimated contract value as a general turnover threshold.

Award criteria evaluate the specific tender being offered. They must be linked to the subject matter of the contract. Common award criteria include: price or cost; technical quality (methodology, approach, understanding of the brief); delivery plan and project management; key personnel CVs (where these directly affect the quality of the specific deliverable); environmental credentials specific to the works or services; and social value commitments linked to contract delivery.

Award criteria may not include general company-level factors that duplicate selection criteria. A clause awarding marks to tenderers who have completed similar projects in the past — without linking this to the specific quality of the proposed methodology — risks challenge as an unlawful selection criterion at award stage.

The weighting of award criteria must be stated in the contract documents. Price and quality should be weighted to reflect the relative importance of value for money versus technical excellence for the specific contract type. For straightforward supplies, price alone may be appropriate. For complex professional services, quality may carry 60–70% of the weighting.

Evaluation methodologies should be pre-agreed, documented and applied consistently. Individual evaluator scores should be recorded. Where scores are moderated or averaged, the moderation process should be documented. GovIQ generates evaluation record templates aligned to the stated criteria and weightings, creating an auditable trail from criteria publication to award decision.