General duties
Section 8 – General duties
18.Section 8(1) introduces a requirement on contracting authorities, when undertaking regulated procurement, to treat all “relevant economic operators” equally and without discrimination, to act transparently in terms of their procurement activities and to ensure that any actions and decisions a contracting authority takes are proportionate in relation to the contract(s) in question (although see section 11 on supported businesses, section 12 on health or social care services contracts and section 14 on other circumstances in which a contract can be awarded without competition).
19.Section 8(2) places a requirement on a contracting authority to comply with the sustainable procurement duty (see section 9). However section 8(3) states that in complying with the sustainable procurement duty, a contracting authority may not act in a way which conflicts with its duty under section 8(1). Section 8(4) defines “relevant economic operator”.
Section 9 – Sustainable procurement duty
20.Section 9(1) sets out the specific requirements of the sustainable procurement duty on a contracting authority. This duty includes considering, before starting a procurement competition, how, by the way in which it conducts the procurement process, it might improve the economic, social and environmental well-being of the authority’s area, how it might facilitate the involvement of small and medium enterprises, third sector bodies and supported businesses, and to consider how it can promote innovation. Section 9(1)(b) requires an authority to conduct its procurements in a way designed to secure the improvements identified.
21.Section 9(2) makes clear that the improvement activity considered must only extend to those matters which are relevant to what is being procured and to the extent that such matters are proportionate to the procurement.
22.Section 9(3) and (4) defines and explains certain terms used in section 9.
Section 10 – Guidance on sustainable procurement duty
23.Section 10 permits the Scottish Ministers to publish guidance on the sustainable procurement duty. Contracting authorities must have regard to any such guidance. The Scottish Ministers must lay a copy of any such guidance before the Scottish Parliament.
Section 11 – Supported businesses
24.Section 11 permits a contracting authority to seek offers from supported businesses only, notwithstanding the general duties under section 8. This means that if a bidder does not meet the definition of a supported business, it can be precluded from participating in a competition on that basis alone. This does not mean that a contract can be awarded directly to a particular supported business (i.e. without competition), but rather that the competition will be amongst supported businesses only. The general duties will still apply to the procurement competition that is run amongst supported businesses.
25.Section 11(3) provides the definition of a supported business, for the purposes of this Act. A supported business is an economic operator who operates a supported business, supported employment programme or supported factory within the meaning of regulation 7 of the Public Contracts (Scotland) Regulations 2012(3).
Section 12 – Contracts for health or social care services
26.As an exception to the requirement to treat all bidders equally and without discrimination (section 8(1)), section 12(1) permits a contracting authority to award a contract for health or social care services without seeking offers in relation to the proposed contract.
27.In the case of direct award under section 12(1), the contracting authority is exempted from the requirement to publicise its intention to seek offers set out in section 23(1).
28.Section 12(3) gives the Scottish Ministers a power to make regulations to specify what is a health or social care service for the purposes of the Act. The power is subject to the negative procedure (see section 44(3)).
Section 13 – Guidance on procurements for health or social care services
29.Section 13 obliges the Scottish Ministers to publish guidance on the carrying out of regulated procurements relating to contracts for health or social care services. Contracting authorities must have regard to such guidance. The Scottish Ministers must lay a copy of such guidance before the Scottish Parliament.
Section 14 – Other circumstances in which contract can be awarded without competition
30.Section 14 gives the Scottish Ministers a regulation-making power to specify circumstances in which a contracting authority may, as an exception to the requirement to treat all bidders equally and without discrimination (section 8(1)), award a regulated contract without seeking offers in relation to the proposed contract. The power is subject to the affirmative procedure.
31.In the case of direct award outlined in section 14(1), the contracting authority is exempted from the requirement to publicise its intention to seek offers set out in section 23(1).
