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Procurement Reform (Scotland) Act 2014

Part 3: Specific Duties

Publication of notices on Public Contracts website

Section 22 – Public Contracts website

46.Section 22 places a requirement on the Scottish Ministers to establish and maintain a website (the “Public Contracts website”), which is to be used by contracting authorities to publicise the seeking of offers and the award of a contract (which, by virtue of section 6(2)(a), includes a framework agreement).

Section 23 – Publication of contract notices and award notices

47.Section 23(1) and (2) requires all contracting authorities to publicise their intention to seek offers (contract notice) and the award of a contract or framework agreement (award notice) on the Public Contracts website.

48.Section 23(3) enables the Scottish Ministers to include in regulations, made by negative procedure (see section 44(3)), provisions about publication of this information. Subsection (4) details a list of particular, but not exhaustive, provisions that can be included in regulations in respect of publication of contract notices and award notices.

Community benefit requirements

Section 24 – Community benefit requirements

49.This section introduces a definition of community benefit requirement for the purpose of the Act. This is relevant to a contracting authority’s procurement strategy (see section 15(5)(b)) and also to the duty on a contracting authority in section 25 to consider imposing such requirements in certain procurements.

Section 25 – Community benefit requirements in major contracts

50.Section 25 applies where a contracting authority proposes to carry out a regulated procurement equal to or greater than £4,000,000. In doing so, a contracting authority must consider whether to impose community benefit requirements as part of the contract delivery before carrying out the procurement. The contracting authority must include in the contract notice a summary of the community benefit requirements it intends to impose or the reasons for not including any requirement.

51.Section 25(4) states that where community benefits requirements are to be included in the contract, the contracting authority must state in the award notice the details of the benefits it considers will be derived.

52.Section 25(5) provides for the threshold for community benefit requirements to be amended by the Scottish Ministers, by order, subject to the affirmative procedure (see section 44(2)).

Section 26 – Guidance on community benefit requirements

53.Section 26 gives the Scottish Ministers power to publish statutory guidance in relation to the use of community benefit requirements and makes provision regarding the content of that guidance. Section 26(3) requires a contracting authority to have regard to any guidance published under this section. Section 26(4) obliges the Scottish Ministers to lay a copy of the guidance before the Scottish Parliament.

Selection of tenderers and award of contracts

Section 27 – Exclusion of economic operators on grounds of criminal activity

54.The section applies only to regulated procurements which are not also EU-regulated procurements, that is procurements covered by regulation 5(1) of the Public Contracts (Scotland) Regulations 2012. These are a proposed public supply contract, public works contract, Part A services contract, framework agreement or dynamic purchasing system, save certain exclusions. Subsection (1) enables the Scottish Ministers to make regulations, subject to the negative procedure, requiring contracting authorities to exclude an economic operator where the operator or certain people connected with the operator have been convicted of an offence specified in the regulations.

55.The regulations made by Ministers may explain how contracting authorities are to determine whether or not a bidder has been convicted of an offence.

56.The regulations may also set out the specific circumstances under which a contracting authority may award a contract to a bidder despite the fact that the bidder meets the criteria which requires its exclusion.

Section 28 – Selection of tenderers

57.Section 28 enables the Scottish Ministers to make regulations, subject to the negative procedure, about the selection of economic operators in regulated procurements which are not EU-regulated procurements. The regulations may include provision about the use of minimum standard criteria which are designed to identify the suitability of a potential bidder to be invited to submit a bid in a regulated procurement. A minimum standard criterion is one which relates to the financial health of the potential bidder, its technical ability or any other characteristic referred to in the regulations that this section empowers Ministers to make.

58.The regulations may also specify how a contracting authority determines whether a potential bidder meets the specified minimum standard or not, and section 28(3) sets out criteria which may be specified in the regulations.

Section 29 – Guidance on selection of tenderers and award of contracts

59.Section 29(1) provides the Scottish Ministers with the power to publish guidance for contracting authorities on the selection of economic operators and the award of contracts in relation to a regulated procurement.

60.By virtue of section 29(2), the guidance may cover, in particular, the use of questionnaires and matters relating to the recruitment, remuneration (including payment of a living wage) and other terms of engagement of those persons who will be involved in producing, providing or constructing the subject matter of the regulated procurement, and employee representation including trade union recognition.

61.Section 29(3) requires a contracting authority to have regard to this guidance when assessing the suitability of tenderers.

62.Section 29(4) obliges the Scottish Ministers to lay a copy of the guidance before the Scottish Parliament.

63.Section 29(5) provides a definition for the reference to “living wage” in subsection (2)(b), so that it has the same meaning as in section 15(5)(b)(iii), being remuneration which is sufficient to ensure an acceptable standard of living.

Technical specifications

Section 30 – Technical specifications

64.Section 30 applies only to regulated procurements which are not also EU-regulated procurements.

65.Section 30(1) enables the Scottish Ministers to make regulations, subject to the negative procedure (see section 44(3)), regarding the use of technical specifications in regulated procurements (other than EU-regulated procurements). Technical specifications referred to are those used in invitation to tender documentation to describe goods, services or works to be provided pursuant to the procurement or the way in which the goods, services, materials or works are to be produced or provided.

66.This section also details a non-exhaustive list of particular provisions that may be included in regulations in respect of the use of technical specifications.

Charges for participation in procurement process

Section 31 – Charges for participation in procurement process

67.Section 31 prohibits a contracting authority charging a supplier any sort of fee for participation in the procurement process. This includes a fee to provide any document required to participate in that process.

Giving of reasons

Section 32 – Giving of reasons to unsuccessful participants

68.The section applies only to regulated procurements which are not also EU-regulated procurements. It imposes an obligation on contracting authorities to notify any supplier that submitted a pre-qualification questionnaire of the contracting authority’s decision at pre-qualification stage (section 32(2)). Section 32(4) imposes an obligation on contracting authorities to notify all unsuccessful tenderers of its contract award decision as soon as reasonably practicable after awarding the contract or the framework agreement.

69.An economic operator who was excluded from participating in the procurement before submitting a tender must be given a notice with the information set out in section 32(3). An economic operator who was an unsuccessful tenderer must be given a notice of the decision with the information set out in section 32(5).

Section 33 – Request for further information

70.Section 33 sets out that an economic operator who was excluded from participating in the procurement before submitting a tender, an unsuccessful tenderer and the successful tenderer can ask for further detail over and above any information that may already have been provided by the contracting authority under section 32. The request must be made in writing and no later than 30 days after receiving the notification. Section 33(4) details the relevant further information which must be provided by the contracting authority and to whom.

Section 34 – Withholding information

71.Section 34 provides the circumstances in which a contracting authority would be justified in withholding information about the contract award decision from those who would otherwise be entitled to receive it under sections 32 and 33.

Contracts register

Section 35 – Contracts register

72.Section 35 requires a contracting authority to keep and maintain a register of current contracts and make it publicly available, as a minimum on the internet. The register must include those contracts which have been awarded as a result of a regulated procurement. An entry can be deleted only after the relevant contract has expired or been terminated.

73.Section 35(6) gives details of the circumstances in which a contracting authority is able to decide not to include a particular contract in the register.

Procurement of recycled and recyclable products etc.

Section 36 – Amendment of Climate Change (Scotland) Act 2009

74.Section 36 creates a new section 82A in the Climate Change (Scotland) Act 2009. That new section provides a power for the Scottish Ministers, by regulations, to require specified contracting authorities to ensure that a certain proportion of things procured comprise of or include recycled material or material that is designed to be recycled. Subsection (3) sets out the kind of provisions that can be made. Subsection (4) provides for guidance to be given to enforcement authorities by the Scottish Ministers.

75.The new provision complements the existing powers in section 82 of the 2009 Act.

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