Consultation outcome

Consultation response document

Updated 18 February 2020

1. Introduction

1.1 The Defence Reform Act 2014 (the “Act”) and the Single Source Contract Regulations 2014 (the “Regulations”) establish the grounds on which, and the circumstances in which, the SSRO may be asked to:

a. determine an appeal against assessment that a proposed sub-contract would be a qualifying sub-contract (QSC) (s.29(5) of the Act); and

b. decide whether to overrule or uphold a notice by a sub-contractor that the Act and Regulations should cease to apply to a QSC (s.30(4) of the Act).

1.2 The SSRO is proposing to publish guidance on how it will deal with QSC appeals and notices of cessation. It consulted on draft guidance that was based on its published opinions guidance.

1.3 The SSRO has previously undertaken an extensive review of procedures for opinions and determinations prior to publishing revised guidance in April 2019. The SSRO used the published opinions guidance as the basis for producing the proposed sets of guidance.

1.4 Section 2 of this response document sets out the scope of the consultation. It then sets out the material comments received, together with any changes the SSRO has decided to make to the draft guidance on appeals against an assessment as a QSC (Section 3) and notices of cessation as a QSC (Section 4).

2. Scope of the consultation

2.1 The SSRO issued a consultation document on proposed guidance for determining appeals against QSC assessments and notices of cessation as a QSC, together with draft guidance documents, on 14 October 2019. The consultation closed on 6 December 2019.

2.2 The SSRO received six written responses to the consultation.^{[footnote 1]} The SSRO is grateful to all those who took the time to send a written response. All responses have been considered in producing the final sets of guidance.

2.3 The SSRO asked the following six summary consultation questions in the guidance consultation:

a. Is the proposed guidance clear?

b. Is the proposed guidance helpful?

c. Are there any other suggestions you have on how the guidance could be clearer or more helpful for parties?

d. Do you have concerns regarding the proposed text in the guidance itself?

e. Are there any issues in the guidance that have not been adequately addressed?

f. Do you have any concerns regarding the proposed publication and application dates of the guidance?

2.4 The four industry responses received (including one from a trade body) included:

• Three respondents who provided responses to the summary consultation questions; and
• One respondent who stated that the guidance was potentially helpful, though it had very limited experience in the subject matters. It agreed with the substantive response provided by the trade body.

2.5 The Ministry of Defence (MOD) confirmed that it had no comments to make, other than stating that the guidance was sensible.

2.6 A consultant familiar with the industry provided views on the contents of the proposed guidance. The consultant did not address the questions formally asked as part of the consultation.

2.7 Table 1 (below) provides a brief summary of the views expressed on the questions posed in the consultation.

Table 1 – Summary of responses to consultation questions

Question	Summary comments
a)	One respondent agreed that the proposed guidance is clear. Another stated that the proposed guidance was not clear, referencing specific comments which have been addressed in Sections 3 and 4. A third respondent did not address the question but made comments which have been addressed in Sections 3 and 4.
b)	Two respondents agreed that the proposed guidance was helpful, with one stating that the proposed guidance covered all essential aspects and will form a useful basis upon which the parties can engage. Another respondent found the guidance potentially helpful, referencing specific comments which have been addressed in Sections 3 and 4.
c)	The comments made in response to this question have been addressed in Sections 3 and 4.
d)	The comments made in response to this question have been addressed in Sections 3 and 4.
e)	Two respondents confirmed that there were either no issues or no significant issues. One respondent stated that it was not aware of any issues but referenced specific comments which have been addressed in Sections 3 and 4.
f)	No concerns were raised regarding the proposed publication and application dates of the guidance.

3. Comments on the proposed guidance on appeals against assessment as a QSC

3.1 Comments received from respondents have been summarised below, by reference to each section of the proposed guidance. The substantive suggestions are presented, followed by the SSRO’s responses to the feedback (boxed).

3.2 Minor amendments have been made to the guidance, including to address typographical issues, which have been identified either on further review by the SSRO or based on feedback received from respondents. We have not detailed these changes, as they are not material and do not warrant explanation. Amendments which have been made to one set of guidance have also been made to the other set, where appropriate.

Section 1: Introduction and scope

3.3 A consultant suggested that:

• Paragraph 1.2 should make explicit reference to the Secretary of State being empowered to exclude what would otherwise be a QSC from the regime under section 28(6) of the regime.
• Paragraph 1.2 should make it clear that the QSC assessment must be undertaken, and notice of the assessment given, before the sub-contract is awarded.
• The SSRO’s duty of aiming to ensure that good value for money is obtained on qualifying defence contracts and that parties to qualifying defence contracts are paid a fair and reasonable price under those contracts was irrelevant, including because proposed sub-contracts are not caught by the regime.
• Reference has been made in paragraph 1.2 of the guidance to the Secretary of State’s power to exclude sub-contracts from the regime. This distinguishes the Secretary of State’s power from the SSRO’s power to determine an appeal.

• Relevant paragraphs (including paragraph 1.2) have been amended to include appropriate reference to “proposed sub-contract”, to clarify that the QSC assessment must be undertaken before the sub-contract is entered into (regulation 61(1) and (4)).

• Minor and consequential amendments to the text have been made. However, there is no express requirement in the Act or the Regulations for a notice of assessment to be given before the sub-contract is awarded, so the guidance has not been changed in this respect. It is noted, however, that sub-contracts for which no notice has been given in accordance with section 29(2)(b) or (4)(b) will not be QSCs (regulation 58(6)).

• The SSRO has a statutory aim, in carrying out its functions under or by virtue of Part 2 of the Act, to ensure that good value for money is obtained in government expenditure on QDCs and QSCs and that parties (other than the Secretary of State) are paid a fair and reasonable price under those contracts. Section 13 of the Act provides that the SSRO must discharge this aim when carrying out each of its functions, including determining appeals against a QSC assessment. There may, for example, be circumstances in which those aims will guide the process the SSRO follows. No change has been made in this respect.

Section 2: General conduct of referrals

3.4 A consultant suggested that the guidance should clarify that any representations made by the Secretary of State should be restricted to matters of facts, and only within the scope of the criteria set out in the Act and Regulations.

3.5 An industry respondent suggested that more prominence should be given to the contracting authority in terms of conduct of the referral.

Regulation 62(6) permits the Secretary of State or person which made the QSC assessment to make a written submission to the SSRO “on any matters to which they wish the SSRO to have regard in determining the appeal.” Regulation 54 similarly entitles the Secretary of State to make written submissions. The SSRO should not seek to restrict the contents of a submission the Secretary of State is legally permitted to make and, consequently, no change has been made.

Paragraph 2.3 has been amended to include reference to the contracting authority as a potentially interested party whose agreed contact details will be shared with the other party. This is appropriate since that person is entitled to make a submission to the SSRO under regulation 62(6).

Section 3: Summary of stages in determining an appeal

3.6 An industry respondent made suggestions to improve the flowchart:

• that each text box should include reference to the relevant paragraph of the guidance; and
• that reference to “appeal” in the text boxes within the third section should instead refer to “appeal decision”.

3.7 Another industry respondent suggested that the box titled “notice rejected” should include the potential outcomes of that decision (including, for example, that more information was required, that no further action was needed or that a complaint had been raised).

3.8 Clarification was also sought in respect of the text box titled “the parties submit additional information” as to where that process was specifically covered in the guidance.

The suggestion for improving the flowchart is likely to be helpful for navigating the guidance and to aid understanding. Accordingly, the following changes have been made:

• Text boxes have been updated to include reference to the relevant paragraphs of the guidance.
• References to “appeal” have, where appropriate, been replaced with “appeal decision”.

Paragraph 5.6 confirms that the SSRO will notify the relevant parties of its decision on whether the notice of appeal meets the requirements of the Regulations. There may be many outcomes from a decision to reject a notice of appeal, which will be specific to that referral. Where the decision is to reject the notice of appeal, the SSRO will give reasons for that decision. It is not practical to encapsulate in a box in the flow chart a full list of reasons and it may result in matters being excluded which has the potential to mislead. No change has been made.

Parties are entitled to comment on the accuracy of the Statement of Facts (paragraph 7.12) and it is not expected that the parties would submit additional evidence at that stage. To clarify the kind of information that may be provided, the flowchart has been amended to replace “additional information” with “points of inaccuracy”.

Section 4: Engaging with the SSRO before referring matters for appeal

3.9 One industry respondent referred to the need to ensure that the person who made the QSC assessment is involved in the engagement process, given that they will know the allocation of the goods, works or services to be supplied under the QSC.

3.10 In the context of information to be submitted to the SSRO as part of the notice of appeal, an industry respondent sought clarification on whether the SSRO would expect to be notified of “without prejudice” communications, as this might prevent negotiations between the parties.

3.11 The same respondent suggested that paragraph 4.7, which relates to the form of notice of appeal, should confirm that the contents must contain the information required by the Regulations.

3.12 Two respondents sought clarification on what “relevant statutory reports” are in relation to information to be submitted as part of a notice of appeal.

3.13 A consultant suggested that:

• it be made clear that only the proposed sub-contractor can submit a notice of appeal; and
• reference to the SSRO engaging specifically with the MOD should be removed to ensure impartiality and independence of the SSRO, since this would only be by permission of the referring party.

The SSRO accepts that the person which made the QSC assessment is likely to be involved in the appeals process and specific reference to their engagement has been included at paragraph 2.3.

The information which must be submitted to the SSRO as part of the notice of appeal is set out in regulations 62(4) and (5)(a). It is for the parties to the referral to determine what other relevant information they provide to support their position and it may be appropriate for legal advice to be sought in that respect. No change has been made as this is sufficiently addressed at paragraphs 4.5 and 4.6.

The SSRO acknowledges that a notice of appeal must contain the information required by the Regulations. Rather than amending paragraph 4.7, which deals with form rather than content of the notice, an amendment has been made to paragraph 4.5 to make clear the source of the content required in the notice.

It is for the referring party to determine what information is submitted to the SSRO, other than that which is required by the Regulations. Paragraph 4.5 provides some examples of documents which the referring party may wish to submit to provide background context to the appeal, including, where appropriate, relevant statutory reports (i.e. those which are required to be submitted under sections 24 and 25 of the Act). Information which provides background context will be case sensitive for each referral. No change has been made.

• Paragraphs 4.3 and 4.5 have been amended to clarify that it is the proposed subcontractor who may submit a notice of appeal.
• Paragraph 4.4 has been amended to clarify that the SSRO may, rather than will, engage with the MOD. However, since the Secretary of State will have received a copy of the notice of appeal (regulation 62(5)(c)) and has the right to make written submissions (regulations 54 and 62(6)), one would expect the MOD to be engaged in most cases.

Section 5: Assessing whether to accept the notice of appeal

3.14 No comments, other than in relation to typographical suggestions, were made. These have been addressed as appropriate.

Section 6: Setting a timeframe

3.15 No comments, other than in relation to typographical suggestions, were made. These have been addressed as appropriate.

Section 7: Investigating the appeal

3.16 A consultant made the point that, where it is stated in paragraph 7.2a that the SSRO will have regard to statutory guidance which is material to the matters under consideration, no such statutory guidance exists nor is there provision for such guidance to be issued. The consultant also stated that, in the context of paragraph 7.2e, which states that the SSRO will have regard to representations by the Secretary of State in circumstances where they are not a party to the proposed sub-contract, this would not be relevant to the assessment of whether a sub-contract would be a QSC if awarded.

3.17 The consultant suggested, in respect of paragraph 7.10 concerning the circulation of the notice of appeal and other representations, the involvement of the MOD should be restricted. It was noted, firstly, that the potential sub-contractor has no relationship or engagement with the MOD and, secondly, in furtherance of the SSRO’s impartiality and independence, the MOD’s involvement should be limited to providing facts in the case.

3.18 In reference to paragraph 7.10, which deals with the presumption that parties are content for information to be shared with other parties unless a written explanation is provided, the consultant said that the SSRO should make all information submitted available to the other parties, without exception. The consultant also suggested that the ability of the SSRO to accept or consider information that has not been made available to one of the parties (paragraph 7.11) will lead to mistrust.

3.19 One industry respondent asked why, if a party does not wish for certain information to be shared with other parties, they should submit both the original and redacted or summarised documents to the SSRO as suggested in paragraph 7.10.

3.20 Clarification was requested on the process by which the SSRO will “confirm its understanding of the facts”, in the event that it does not share its Statement of Facts under paragraph 7.12.

3.21 In respect of paragraph 7.12, where the guidance states that the SSRO “may share” the Statement of Facts with the parties, an industry respondent sought clarification on why this was different from the notice of cessation guidance in which it is stated that the SSRO “will share” the Statement of Facts.

3.22 Two respondents commented on the example used in the context of site visits at paragraph 7.13. One considered that the example was a good one. The other questioned how the example would apply in circumstances where a site visit is not intended to be an evidence gathering exercise. It suggested that the site visit should be used for the purposes of fact and evidence gathering.

3.23 Another industry respondent considered that a site visit, in the context of determining an appeal, seemed excessive and commented that it should be possible to determine an appeal based on written statements.

3.24 An industry respondent asked whether all members of the Referral Committee would attend the site visit and, if not, suggested that the guidance should set out the process by which absent members would be notified of any findings.

3.25 In the context of the transcript of the oral hearing set out at paragraph 7.19, an industry respondent suggested that any “issues of inaccuracy” should be restricted to only issues in relation to what that party had said. There was concern that it would otherwise create an opportunity for the parties to make additional representations about the other party’s position.

3.26 The consultant mentioned the difficulty arising because of the absence of definitions within the Act and Regulations of the terms “requirement” and “contract”. These are matters which fall outside the scope of the consultation, but will be logged for consideration by the relevant team.

The list of matters to which the SSRO must have regard in determining an appeal is dictated by regulation 54 and paraphrased at paragraph 7.2. The relevance of those matters will be determined by the SSRO in the circumstances of each appeal. Additional text has been added to make this clear.

Regulation 62(6) permits the Secretary of State or the person who made the QSC assessment to make a written submission to the SSRO “on any matters to which they wish the SSRO to have regard in determining the appeal.” It is not open to the SSRO to prevent engagement with the Secretary of State and, accordingly, no change has been made.

The SSRO explains in paragraph 7.11 of the guidance that it will generally only rely on information that has been made available to all parties and that it will be guided by the principles of fairness in deciding whether to accept or consider information that has not. There may be exceptional circumstances in which certain information should be considered but cannot be shared, for legitimate reasons, and it would therefore be unreasonable for the SSRO to impose a blanket policy preventing this. Accordingly, no change has been made to paragraph 7.11.

Other than the information required under the Regulations to issue an appeal, it is for the parties to determine what information they share with the SSRO. If a party wishes to submit information which they do not consent to being shared with other parties, it may still be possible for part of the document to be shared and this is recognised in paragraph 7.10 of the guidance, which refers to a redacted version. The SSRO considers it may facilitate the appeal process in these circumstances for the party to provide both a redacted and unredacted version. For these reasons, no change has been made to paragraph 7.10.

The SSRO would expect to be able to share a Statement of Facts with the parties, in accordance with paragraph 7.12, and to invite comments on accuracy. Exceptionally, where this cannot happen, it is likely to be for reasons of time constraint owing to the statutory time limit of 40 working days. In that case the process by which the SSRO will confirm its understanding of the facts will be dictated by circumstances. To permit flexibility, no change has been made to paragraph 7.12.

Regulation 62(7) requires the SSRO to determine an appeal within 40 working days. The same statutory requirement does not apply to determining notices of cessation and, to account for that, the appeals against assessment guidance contains more flexibility for the SSRO to modify its processes. It is the SSRO’s expectation that, but for exceptional circumstances, it will share the Statement of Facts with the parties in accordance with paragraph 7.13. However, whether that is possible will be dictated by the circumstances of the appeal. No change has been made to paragraph 7.13.

The purpose of a site visit is not for evidence or fact gathering, which is restricted to written submissions and the oral hearing. As explained at paragraph 7.13, the purpose of a site visit is solely for the SSRO to obtain a greater understanding of the context for the appeal. The SSRO generally prefers to hold an oral hearing at a neutral location but may, in appropriate circumstances, hold a hearing at the site. A change has been made to paragraph 7.15 to reflect this possibility.

The SSRO accepts that a site visit is not likely to be necessary for most appeals. Paragraph 7.13 provides that the SSRO “may” organise a site visit if it would assist to determine the appeal. It is not presented as a usual step and the circumstances of the appeal may mean that it is unnecessary. It seems appropriate to include the possibility of a site visit and how it will be conducted if required. For these reasons paragraph 7.15 has not been changed.

It is expected that all members of the Referrals Committee will attend a site visit as their availability over the course of the referral is taken into account at the time of making their appointment. As the site visit is not used for the purposes of gathering evidence, in the unlikely event that a Committee member is unavailable, the procedural fairness of the process will be safeguarded. It seems appropriate to include the possibility of a site visit and how it will be conducted if required. For those reasons, paragraph 7.15 has not been changed.

Paragraph 7.19 confirms that the parties can raise issues of inaccuracy in respect of the oral hearing transcript. Parties are not restricted to raising issues only in relation to what that party has said, as to do so may prevent a true account of the hearing being held. The parties will be entitled to raise any issues of inaccuracy. No change has been made.

Section 8: Determining and publishing the appeal

3.27 One industry respondent suggested that paragraph 8.1, which confirms that the appeal determination will be sent to the parties as a final document without opportunity for comment, should be amended to allow a final review before the decision is finalised.

3.28 The same industry respondent sought clarification on whether, under paragraph 8.6 which allows the parties the opportunity to make representations on the draft version to be published, such representations were limited to issues concerning commercially prejudicial information.

Given the nature of the referral and the statutory time frame of 40 working days within which the SSRO is required to determine the appeal, affording the parties a period of time to review the final document is unlikely to be necessary or feasible. For that reason, the SSRO will generally issue a Statement of Facts to allow parties the opportunity to raise issues of inaccuracy. No change has been made to paragraph 8.1.

The second sentence of paragraph 8.6 is intended to limit representations of the parties to matters only in respect of information which, if published, would cause significant prejudice to commercial interests. The text has been amended to make this clear.

Section 9: Concluding the referral

3.29 The consultant suggested that, in paragraph 9.1, the list of circumstances in which the SSRO will close an appeal before the final decision is made should be expanded to include:

• if the proposed sub-contractor decides not to accept the proposed sub-contract as a QSC (presumably meaning that the proposed sub-contractor decides not to enter into the contract); and
• if the Secretary of State directed that the proposed sub-contract be excluded from the regime under section 28(6) of the Act.

The SSRO considers that both examples given would likely be covered under the provisions of paragraph 9.1 (i.e. in circumstances where the legislation permits, and where the SSRO is satisfied that the appeal should not be determined). There may be many examples which would fall within scope of those provisions. No change has been made.

Appendix 1: Statutory grounds

3.30 One respondent repeated an earlier suggestion that more prominence should be given to the contracting authority in terms of conduct of the referral. This has been addressed under the comments at paragraph 3.5 above.

4. Comments on the proposed guidance on notices of cessation as a QSC

4.1 Comments received from respondents have been summarised below, by reference to each section of the proposed guidance. The substantive suggestions are presented, followed by the SSRO’s responses to the feedback (boxed).

4.2 Minor amendments have been made to the guidance, including to address typographical issues, which have been identified either on further review by the SSRO or based on feedback received from respondents. We have not detailed these changes, as they are not material. These do not warrant explanation. Amendments which have been made to one set of guidance have also been made to the other set, where appropriate.

Section 1: Introduction and scope

4.3 An industry respondent suggested that it might be helpful to include examples of when a QSC may cease.

4.4 A consultant suggested that the SSRO’s duty of aiming to ensure that good value for money is obtained on QDCs and that parties to QDCs are paid a fair and reasonable price under those contracts was irrelevant to the referral.

An example of the circumstances where a qualifying sub-contractor might wish to submit a notice of cessation is included at paragraphs 4.8 and 7.13. The SSRO agrees it may be helpful to also reflect this at paragraph 1.2 of the guidance and has included a sentence in that paragraph.

The SSRO has a statutory aim, in carrying out its functions under or by virtue of Part 2 of the Act, to ensure that good value for money is obtained in government expenditure on QDCs and QSCs and that parties (other than the Secretary of State) are paid a fair and reasonable price under those contracts. Section 13 of the Act provides that the SSRO must discharge this aim when carrying out each of its functions, including determining notices of cessation. There may, for example, be circumstances in which those aims will guide the process the SSRO follows. No change has been made in this respect.

Section 2: General conduct of referrals

4.5 An industry respondent suggested that more prominence should be given to the contracting authority in terms of conduct of the referral.

Paragraph 2.3 has been amended to include the contracting authority as a potentially interested party. This is appropriate since the contracting authority will have received a copy of the notice of cessation (regulation 63(2)(e)) and is entitled to make a submission to the SSRO under regulation 63(3).

Section 3: Summary of stages in making a decision

4.6 An industry respondent made suggestions to improve the flowchart:

• that each text box should include reference to the relevant paragraph of the guidance; and
• that reference to “notice of cessation” in the text boxes within the third section should instead refer to “notice of cessation decision”.

4.7 Clarification was also sought in respect of the text box titled “the parties submit additional information” as to where that process was specifically covered in the guidance.

The suggestion for improving the flowchart is likely to be helpful for navigating the guidance and to aid understanding. Accordingly, the following changes have been made:

• The text boxes have therefore been updated to include reference to the relevant paragraphs of the guidance.
• References to “notice of cessation” have, where appropriate, been replaced with “notice of cessation decision”.

Parties are entitled to comment on the accuracy of the Statement of Facts (paragraph 7.12) and it is not expected that the parties would submit additional evidence at that stage. To clarify the kind of information that may be provided, the flowchart has been amended to replace “additional information” with “points of inaccuracy”.

Section 4: Engaging with the SSRO before referring a notice of cessation

4.8 An industry respondent suggested that, in paragraph 4.4, more prominence should be given to the contracting authority in terms of its engagement with the SSRO.

4.9 A consultant suggested that, in paragraph 4.4, reference to the SSRO engaging specifically with the MOD should be removed to ensure impartiality and independence of the SSRO, since this would only be by permission of the referring party.

4.10 An industry respondent suggested that the drafting should be revised to ensure clarity that only a sub-contractor can issue a notice of cessation.

Paragraph 4.4 confirms that, with permission, the SSRO will engage with the other party or parties to the contract. No change is therefore required.

Paragraph 4.4 has been amended to clarify that the SSRO may, rather than will, engage with the Secretary of State. However, since the Secretary of State will have received a copy of the notice of appeal (regulation 63(2)(e)) and has the right to make written submissions (regulation 63(3)), one would expect the MOD to be engaged in most cases.

Paragraph 4.5 has been amended to make explicit reference to only a sub-contractor being entitled to submit a notice of cessation (regulation 63(1)).

Section 5: Assessing whether to accept the submitted notice of cessation

4.11 No comments were made.

Section 6: Setting a timeframe

4.12 No comments were made.

Section 7: Investigating the referral

4.13 One industry respondent asked why, if a party does not wish for certain information to be shared with other parties, they should submit both the original and redacted or summarised documents as suggested in paragraph 7.10.

4.14 In the context of site visits under paragraph 7.14, the same industry respondent questioned how the example provided would apply in circumstances where a site visit is not intended to be an evidence gathering exercise. They suggested that the site visit should be used for the purposes of fact and evidence gathering.

4.15 The same industry respondent asked whether all members of the Referral Committee would attend the site visit and, if not, suggested that the guidance should set out the process by which absent members would be notified of the findings.

4.16 In the context of the oral hearing process set out at paragraph 7.19, an industry respondent suggested that any “issues of inaccuracy” raised in the transcript should be restricted to only issues in relation to what that party had said. There was concern that otherwise it will create an opportunity for the parties to make additional representations about the other party’s position.

4.17 A consultant referenced various complexities considered to arise because of the way in which the Regulations are drafted. These are matters which fall outside the scope of the consultation but will be logged for consideration by the relevant team.

Other than the information required under the Regulations to issue a notice of cessation, it is for the parties to determine what information they share with the SSRO. However, if a party wishes to submit information which they do not consent to being shared with other parties, it may still be possible for part of the document to be shared and this is recognised in paragraph 7.10 of the guidance, which refers to a redacted version. The SSRO considers it may facilitate the process in these circumstances for the party to provide both a redacted and unredacted version. For these reasons, no change has been made to paragraph 7.10.

The purpose of a site visit is not for evidence or fact gathering, which is restricted to written submissions and the oral hearing. As explained at paragraph 7.13, the purpose of a site visit is solely for the SSRO to obtain a greater understanding of the context for the referral. The SSRO generally prefers to hold an oral hearing at a neutral location but may, in appropriate circumstances, hold a hearing at the site. A change has been made to paragraph 7.15 to reflect this possibility.

It is expected that all members of the Referrals Committee will attend a site visit as their availability over the course of the referral is taken into account at the time of making their appointment. As the site visit is not used for the purposes of gathering evidence, in the unlikely event that a Committee member is unavailable, the procedural fairness of the process will be safeguarded. It seems appropriate to include the possibility of a site visit and how it will be conducted if required. For those reasons, paragraph 7.15 has not been changed. Paragraph 7.19 confirms that the parties can raise issues of inaccuracy in respect of the oral hearing transcript. Parties are not restricted to raising issues only in relation to what that party has said, as to do so may prevent a true account of the hearing being held. The parties will be entitled to raise any issues of inaccuracy. No change has been made.

Section 8: Making and publishing a decision

4.18 One industry respondent suggested that paragraph 8.1, which confirms that the notice of cessation determination will be sent to the parties as a final document without opportunity for comment, should be amended to allow a final review before the decision is finalised. Given the nature of the referral, affording the parties a period of time to review the final document is unlikely to be necessary. For that reason, the SSRO will issue a Statement of Facts to allow parties the opportunity to raise issues of inaccuracy. No change has been made to paragraph 8.1.

Section 9: Concluding the referral

4.19 No comments were made.

Appendix 1: Statutory grounds

4.20 No comments were made.

1. ADS, Babcock, Leonardo, QinetiQ, MOD and one consultant. ↩