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.
