Detail of outcome

In 2019 the SSRO proposed to introduce guidance on how it will:

• determine an appeal against assessment that a proposed sub-contract would be a qualifying sub-contract (QSC); and
• decide whether to overrule or uphold a notice by a sub-contractor that the Act and Regulations should cease to apply to a QSC.

The SSRO used the published opinions guidance, on which it had undertaken an extensive review and consultation in 2018, as the basis for producing the proposed new guidance. We consulted publicly on the proposed new guidance from October to December 2019.

The SSRO received six written responses to the consultation, which have been considered in finalising the new guidance which is now available.

The new guidance will apply to appeals and notices received on and after 1 April 2020.

Detail of feedback received

The feedback received is summarised in the consultation response document, which also sets out the SSRO’s responses to the submissions made.

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Original consultation

Consultation description

The Defence Reform Act 2014 and the Single Source Contract Regulations 2014 establish the grounds and circumstances on which the SRRO may be asked to determine an appeal against assessment as a QSC or to decide whether to agree a notice of cessation as a QSC. The SSRO has used its existing guidance on opinions as the basis for proposed processes for both appeals and notices of cessation. Significant departures from the opinions guidance are shown in the consultation document.

The SSRO is now consulting publicly on the proposed guidance on both appeals and notices of cessation.

The consultation document sets out significant differences between opinions guidance and the proposed guidance for appeals and notices of cessation. The guidance for both processes covers:

• the circumstances in which the SSRO may determine an appeal or agree a notice of cessation;
• how to refer matters to the SSRO;
• timescales; and
• the processes from early engagement through to publication of a decision.

Responses are requested in writing by 5pm Friday 6 December 2019. We ask that responses are provided to consultations@ssro.gov.uk preferably by completing the consultation form and emailing an electronic copy. A proposed timetable for publishing final guidance and specific consultation questions is included in paragraphs 1.15 to 1.17 of the stakeholder consultation document. Any queries may be directed to peter.regan@ssro.gov.uk or please call Peter Regan at 0203 771 4772.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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. ↩

1. Introduction

1.1 The Defence Reform Act 2014 (the “Act”) establishes the grounds on which, and the circumstances in which, the SRRO may be asked to:

• determine an appeal against assessment as a proposed qualifying sub-contract (QSC) (s.29(5)); and
• decide whether to overrule a notice given by a sub-contractor to the SSRO that the Act and regulations should cease to apply to a QSC (s.30(4)).

1.2 The Single Source Contract Regulations 2014 (the “Regulations”) supplement the Act and provide further detail on the grounds and circumstances for referral.

1.3 The SSRO has produced draft guidance on processes intended to assist parties who become involved with such requests. The guidance is contained in two documents, one dealing with appeals and one dealing with notices of cessation. The documents include guidance on:

• the statutory grounds for an appeal or notice of cessation;
• how to refer matters to the SSRO;
• timescales; and
• the procedure from acceptance to publication of a decision.

1.4 The SSRO undertook an extensive review of procedures for opinions and determinations prior to publishing revised guidance in April 2019. The SSRO has used the opinion guidance as the basis for producing the proposed appeals and notice. This consultation document explains the significant changes to the opinions guidance for both appeals and notices of cessation.

1.5 Should any party be considering a referral to the SSRO in respect of an appeal or notice of cessation in advance of the proposed publication dates, please contact the SSRO via referrals@ssro.gov.uk or through the SSRO’s Reporting Helpdesk via 020 3771 4785.

Consultation

1.6 The SSRO invites interested parties to comment on the proposed guidance, so that we can consider these views before publishing.

1.7 The SSRO invites stakeholder views, together with supporting evidence where appropriate, on the following consultation questions:

i. Is the proposed guidance clear?

ii. Is the proposed guidance helpful?

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

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

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

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

1.8 A consultation response form containing these questions has been published alongside this consultation document on the SSRO’s website.

1.9 We ask that submissions are made using the response form and that all written responses are returned:

a. by email to consultations@ssro.gov.uk (preferred); or

b. by post to SSRO, Finlaison House, 15-17 Furnival Street, London, EC4A 1AB.^

1.10 The deadline for submissions is 5.00pm on 6 December 2019. Responses received after this date will not be taken into account in finalising the guidance for 2020 but may inform subsequent consideration of guidance changes.

1.11 If you have any questions or would like to discuss the contents of this consultation document, please contact us at the earliest opportunity via consultations@ssro.gov.uk.

1.12 In the interests of transparency for all stakeholders, the SSRO’s preferred practice is to publish responses to its consultations. Stakeholders are asked to specifically identify on all their communications if they do not wish their responses to be published. Due to the sensitive and confidential nature of opinions and determinations, we will be publishing all consultation responses in a summarised and anonymous form to ensure individual opinions or determinations cannot be identified.

1.13 Stakeholders’ attention is drawn to the following SSRO policy statements, available on its website setting out how it handles the confidential, commercially sensitive and personal information it receives and how it meets its obligations under the Defence Reform Act 2014, the Freedom of Information Act 2000, the General Data Protection Regulation and the Data Protection Act 2018.

a. The Single Source Regulations Office: Handling of Commercially Sensitive Information; and b. The Single Source Regulations Office: Our Personal Information Charter.

Timetable

1.14 The SSRO intends to publish a summary of consultation responses and any revised guidance in April 2020. The revised guidance would apply to all opinions or determinations accepted after 1 April 2020.

1.15 The proposed timetable for the review process is summarised below.

Activity	Date
Consultation commences	14 October 2019
Submission of responses to consultation	5pm 6 December 2019
Consider consultation responses and prepare final guidance	December 2019 to March 2020
SSRO Regulatory Committee reviews and approves final guidance	23 January 2020
Publication of consultation response summary and new guidance	By 1 April 2020
Application of new guidance	1 April 2020

1.16 The SSRO welcomes views on the proposed timetable for publication and application of the guidance on these topics as part of this consultation.

2. Appeals against assessment as a QSC

Section 29(5) of the Act provides that a party may appeal to the SSRO against a sub-contract being assessed as a qualifying sub-contract to a qualifying defence contract or a proposed qualifying defence. Regulation 62 provides further explanation on the procedures covering an appeal to the SSRO. Principally, the key features of the regulations:

• Require a party to submit a notice of appeal:
  • to the SSRO before entering into the proposed contract expected to become a qualifying sub-contract
  • to be received by the SSRO no later than six months after the person bringing the appeal has received the notice of assessment
• Prescribe the information which must be provided to the SSRO in and with a notice of appeal; and
• Require the SSRO to determine an appeal within 40 working days of receipt of a notice of appeal.

The SSRO considers that its determination of the appeal is likely to have legal consequences for the parties involved.

In developing the procedures for determining an appeal, the SSRO has used the existing SSRO opinions guidance as the basis. The SSRO has amended terminology used for giving an opinion to reflect determining an appeal and has not highlighted such changes in the text below. The key areas of difference between the opinions guidance and the appeals guidance are highlighted in the table below:

Appeals guidance	Reason for the difference
1.2 sets out the regulatory framework applying to appeals against assessment as a QSC	The framework is specific to appeals against assessment as a QSC.
2.3 specifically identifies the Secretary of State as a party who may make representations.	Under regulation 62(6), the Secretary of State may make written submissions to the SSRO on any matters to which they wish the SSRO to have regard in determining the appeal.
4.1 The SSRO has removed references to potential delays to the timescale for determining the appeal	As the 40 working days is a statutory deadline, the deadline must be achieved.
4.3 This sets out the information that parties should have to hand when contacting the SSRO regarding an appeal.	Parties are asked to have the date of receipt of the notice of assessment, confirmation of whether the proposed contract has been entered into, together with the grounds for appeal to hand. This information is specific to an appeal.
4.4 The SSRO has deleted the reference to a sole party making a referral and clarified that the MOD will be a party which the SSRO may contact.	An appeal can only be made by the party which has received the notice of assessment. The SSRO is required to consider representations from the MOD under regulation 62(6).
4.5 and 4.6 have been amended to list the information parties are asked to submit to the SSRO.	The list of information is specific to an appeal and is taken from regulations 62(4) and 62(5).
4.8 This paragraph has been amended to provide an example of a ground for appeal and the type of information which may be relevant to provide.	The example is specific to an appeal.
4.9 The paragraph amends “sufficient information to be provided” to information required under the regulations.	The change is due to the regulations providing greater specification of information requirements for an appeal.
5.1 The SSRO has deleted the reference to the timeline for the referral only commencing from the date of acceptance.	The regulations specify that the timeline for an appeal commences for the date of receipt by the SSRO of the notice of appeal.
Opinions paragraph 5.3 The SSRO has deleted the paragraph concerning the SSRO’s discretion to accept a referral.	Should a notice of appeal contain the requisite information and meet the conditions concerning timescale for submission to the SSRO, the SSRO must accept an appeal.
5.3 (opinions paragraph 5.4). The revisions set out the timescales required for submission of an appeal to the SSRO.	The requirements are specific to an appeal under regulation 62(5).
5.4 (opinions paragraph 5.5). This refers to the SSRO assessing whether the information provided in the notice of assessment meets the requirements of the regulations. It also adds that the date of receipt of a notice of appeal by the SSRO will be the date the SSRO is in receipt of all information required under the regulations.	The requirements are specific to an appeal under regulation 62(4).
5.5 (opinions paragraph 5.4). The paragraph refers to the SSRO notifying parties whether information provided meets the requirements of the regulations.	The requirements are specific to an appeal.
5.6 (opinions paragraph 5.5). The paragraph sets out that the timescale for the appeal will start on the date the SSRO receives a notice of appeal containing the requisite information.	The requirements are specific to an appeal.
5.8 (opinions paragraph 5.7). The paragraph removes reference to resetting or restarting the timeframe for the referral and replaces it with the referring party will need to resubmit a new notice of appeal and the timescale will be restarted from the date of receipt of the new notice.	As the regulations set a statutory requirement of determining the appeal within 40 working days, there is no possibility of resetting or restarting the appeal within 40 working days, unless the referring party withdraws the notice.
6.1 The paragraph sets out the deadline of determining the appeal within 40 working days of receiving the notice.	The requirements are specific to an appeal.
6.3 Text suggesting that submission of a jointly agreed statement of facts may shorten the investigation has been removed and replaced with “On receipt of the copy of the notice of appeal, the Secretary of State or the person which made the assessment may, within 20 working days of receipt make a written submission to the SSRO on any matters to which they wish the SSRO to have regard in determining the appeal.”	The change recognises that the other party or parties to the appeal are entitled statutorily to 20 working days to provide a response to the notice of appeal. Given the entitlement, the SSRO considers a joint statement is unlikely to significantly shorten the time period for determining an appeal.
Opinions paragraphs 6.4 and 6.5 Text concerning factors affecting the SSRO’s ability to meet the target timescale has been deleted	The SSRO is statutorily required to determine an appeal within 40 working days.
Opinions paragraphs 6.6, 6.7 and 6.8 Text concerning suspending the opinion timescale has been deleted.	As the SSRO is statutorily required to determine an appeal within 40 working days, there is no possibility of suspending the appeal process.
7.5 Additional text has been added covering the 20 working days allowed in the regulations for the Secretary of State or the person which made the assessment may make a written submission to the SSRO from receipt of the copy of the notice of appeal.	The 20 working days for a response to the notice is a statutory requirement.
7.7 Text has been added to recognise that whilst parties may notify the SSRO of any difficulties in meeting timescales to respond to requests for information, the SSRO is unlikely to have much flexibility in amending timescales.	This recognises that to meet the requirement to determine the appeal within the statutory 40 working days from receipt, the SSRO has limited opportunity to amend timescales to achieve the planned delivery.
7.9 Text concerning the SSRO’s circulation of the submission of a referral to the other party(ies) has been deleted and replaced with the requirement for the referring party to circulate the notice of appeal and the right of the other parties to respond within 20 working days.	This recognises the statutory requirements of the appeal process.
7.12 Text has been amended to state that the SSRO will issue a statement of facts to the parties prior to determining the appeal.	The SSRO does not consider it realistic to issue a provisional determination for comment prior to issuing a final determination within the statutory timescale of 40 working days from receipt of the notice of appeal. The SSRO will therefore issue a statement of facts gathered during the investigation for parties to comment on factual accuracy in advance of determining the appeal.
7.13 Text has been amended to provide an example of the circumstances in which a site visit may be beneficial.	The SSRO considered it could be beneficial to sub-contractors to understand how a site visit may be beneficial in the appeal process.
8.2 This sets out that an appeal may have legal consequences for parties, including the potential payment of costs. This paragraph combine text from paragraphs 8.2 and 8.3 from the opinions guidance.	Text is specific to an appeal.
9.2 Text relating to suspending the referral process has been deleted.	The statutory requirement to determine the appeal within 40 working days means the SSRO cannot choose the suspend the timescale.

3. Notice of cessation as a QSC

Section 30(4) of the Act provides that a sub-contractor may give notice to the SSRO that, in the sub-contractor’s opinion, Part 2 of the Act and the regulations should cease to apply to the qualifying sub-contract and that the SSRO may overrule such a notice. Regulation 63 provides further explanation on the procedures covering a notice of cessation. Principally, the key features of the regulations:

• Require a notice of cessation to be received by the SSRO no later than the contract completion date of the qualifying sub-contract:
• Prescribe that the grounds for a notice of cessation are that in the sub-contractor’s view, neither the condition in regulation 58(3) nor the condition in regulation 58(4) is now met in relation to the qualifying sub-contract, and therefore Part 2 of the Act, and the Regulations, should therefore cease to apply to that qualifying sub-contract;
• Set out the information which must be provided to the SSRO with a notice of cessation; and
• Require the SSRO to agree or overrule the notice.

The SSRO considers that its determination of the notice of cessation is likely to have legal consequences for the parties involved.

In developing the procedures for deciding a notice of cessation, the SSRO has used the existing SSRO opinions guidance as the basis. The SSRO has amended terminology used for giving an opinion to reflect deciding a notice of cessation and has not highlighted such changes in the text below. The key areas of difference between the opinions guidance and the notice of cessation guidance are highlighted in the table below:

Notice of cessation guidance	Reason for the difference
Para 1.2 sets out the regulatory framework applying to notices of cessation as a QSC.	The framework is specific to notices of cessation.
Para 2.3 specifically identifies the Secretary of State as a party who may make representations.	Under Regulation 63(4), the SSRO is required to have regard to any matters to which the MOD have advised that it should have regard.
4.3 This sets out the information that parties should have to hand when contacting the SSRO regarding a notice of cessation.	Parties are asked to have to hand the date at which the sub-contractor believes that neither the condition in regulation 58(3) nor the condition in regulation 58(4) were met in relation to the qualifying sub-contract; and an outline of the reasons for their view. This information is specific to a notice of cessation.
4.4 The SSRO has deleted the reference to a sole party making a referral and clarified that the MOD will be a party which the SSRO may contact.	A notice of cessation can only be submitted by a qualifying sub-contractor. The SSRO is required to consider representations from the MOD under regulation 63(4).
4.5 and 4.6 have been amended to list the information parties are asked to submit to the SSRO.	The list of information is specific to a notice of cessation and is taken from regulations 63(2).
4.8 This paragraph has been amended to provide an example of a reason for a notice of cessation and the type of information which may be relevant to provide.	The example is specific to notices of cessation.
4.9 The paragraph amends sufficient information to be provided to information required under the regulations.	The change is due to the regulations providing greater specification of information requirements for a notice of cessation.
Opinion paragraph 5.3 The SSRO has deleted the paragraph concerning the SSRO’s discretion to accept a referral.	Should a notice of cessation contain the requisite and meet the conditions concerning timescale for submission to the SSRO, the SSRO must accept the notice for consideration.
5.3 (opinion paragraph 5.4). This refers to the SSRO assessing whether the information provided in the notice of cessation meets the requirements of the regulations.	The requirements are specific to a notice of cessation under regulation 63(2).
5.5 (opinion paragraph 5.4). The paragraph refers to the SSRO notifying parties whether information provided meets the requirements of the regulations.	The requirements are specific to a notice of cessation.
6.3 Text added to reflect that the other party to the qualifying sub-contract or the Secretary of State may within 10 working days of receiving a copy of the notice make a written submission to the SSRO on any matters to which they consider the SSRO should have regard in deciding whether to overrule the notice.	The requirements are specific to a notice of cessation.
7.9 Text concerning the SSRO’s circulation of the submission of a referral to the other party(ies) has been deleted.	This recognises the statutory requirement of the notice of cessation process.
7.12 Text has been amended to state that the SSRO will issue a statement of facts to the parties prior to making a decision.	As the SSRO’s decision will have legal consequences for the sub-contractor, the SSRO will issue a statement of facts gathered during the investigation for parties to comment on factual accuracy in advance of making a decision.
7.13 Text has been amended to provide an example of the circumstances in which a site visit may be beneficial.	The SSRO considered it could be beneficial to sub-contractors to understand how a site visit may be beneficial in the notice of cessation process.
8.1 Text has been added stating that the SSRO’s decision may have legal consequences for the affected parties.	Text is specific to a notice of cessation.
Opinion paragraph 8.2 The paragraph concerning the legal status of opinions has been deleted.	The status of the SSRO’s decision may have legal consequences for the parties. This has been included in paragraph 8.1.
Opinion paragraph 8.3 The paragraph concerning award of costs has been deleted.	The statutory provisions concerning the potential award of costs do not apply to notices of cessation.