Procurement Reform (Scotland) Act 2014

Selection of tenderers and award of contracts

27 Exclusion of economic operators on grounds of criminal activity

(1) The Scottish Ministers may by regulations require a contracting authority to exclude an economic operator from a regulated procurement (other than an EU-regulated procurement) if any of the following have been convicted of an offence specified in the regulations—

(a) the economic operator,

(b) a director, secretary, office-holder, or partner of the economic operator, or

(c) another person having powers of representation, decision-making or control in relation to the economic operator.

(2) Regulations under this section may make provision—

(a) specifying evidence that is to be conclusive in determining whether or not a person has been convicted of an offence,

(b) specifying circumstances in which a contracting authority may award a contract to an economic operator despite being otherwise prohibited from doing so under the regulations.

28 Selection of tenderers

(1) The Scottish Ministers may by regulations make further provision about the selection by contracting authorities of economic operators in relation to a regulated procurement (other than an EU-regulated procurement) including, in particular, provision about—

(a) the use of minimum standard requirements to assess the suitability of economic operators in relation to a regulated procurement,

(b) the circumstances in which an economic operator may or may not be excluded on the basis of criteria specified in the regulations,

(c) the procedure that is to be followed in determining whether or not to exclude an economic operator.

(2) In subsection (1)(a), a minimum standard requirement is a requirement that an economic operator has a particular financial standing, technical ability or other characteristic.

(3) Without prejudice to the generality of subsection (1)(b), criteria which may be specified in the regulations include—

(a) that—

(i) the economic operator,

(ii) a director, secretary, office-holder or partner of the economic operator, or

(iii) another person having powers of representation, decision-making or control in relation to the economic operator,

has been convicted of an offence,

(b) that the economic operator has failed to comply with—

(i) an obligation in relation to the payment of tax, or

(ii) another statutory duty (other than by committing an offence) specified in the regulations,

(c) that the economic operator has committed an act of misconduct of a kind specified in the regulations,

(d) that the economic operator has entered into an agreement with another economic operator aimed at distorting competition,

(e) that the economic operator does not have a licence, possession of which is necessary to perform the contract,

(f) that the economic operator is not a member of a regulatory body, membership of which is necessary to perform the contract,

(g) that the economic operator has granted a trust deed for creditors or become otherwise apparently insolvent or is the subject of a petition presented for sequestration,

(h) that a receiver or administrator has been appointed in relation to the economic operator,

(i) that the economic operator’s performance in relation to another regulated procurement was not satisfactory.

(4) Regulations under this section may make provision specifying evidence that is to be conclusive in determining whether or not such criteria are met.

29 Guidance on selection of tenderers and award of contracts

(1) The Scottish Ministers may publish guidance about the selection of economic operators and the award of contracts in relation to a regulated procurement.

(2) The guidance may, in particular, cover—

(a) the use of questionnaires in the assessment of the suitability of economic operators,

(b) the matters relating to—

(i) the recruitment, remuneration (including payment of a living wage) and other terms of engagement of persons involved in producing, providing or constructing the subject matter of the regulated procurement, and

(ii) employee representation including trade union recognition,

that are to be taken into account in assessing the suitability of an economic operator.

(3) Contracting authorities must have regard to any guidance published under this section.

(4) The Scottish Ministers must lay a copy of any guidance published under this section before the Scottish Parliament.

(5) In subsection (2)(b), “living wage” has the same meaning as in section 15(5)(b)(iii).