Part 2 Reforms connected to delivery and regulation of care

Chapter 1 Modifications to other enactments

Commissioning

16 Reserving right to participate in procurement by type of organisation
(1) The Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446) are modified as follows.
(2) After regulation 76 insert—

“Reserved contracts for certain services
76A. (1) Contracting authorities may reserve to qualifying organisations the right to participate in procedures for the award of reservable contracts.
(2) Where a contracting authority exercises the power of reservation conferred by paragraph (1), the call for competition must make reference to this regulation.
(3) The power of reservation conferred by paragraph (1) is without prejudice to the power conferred by regulation 21.
(4) A reservable contract is a contract that—
(a) is to be awarded in accordance with this Section,
(b) is for the provision of a service, or more than one service, that constitutes, or is otherwise connected to, the provision of a service in pursuance of—
(i) a function conferred by virtue of an enactment listed in the schedule of the Public Bodies (Joint Working) (Scotland) Act 2014, or
(ii) a function that is exercisable by a health board or a special health board constituted under section 2(1)(a) or, as the case may be, (b) of the National Health Service (Scotland) Act 1978, and
(c) is exclusively for a service, or more than one service, covered by one of the following CPV codes: 75200000-8, 75231200-6, 75231240-8, 79611000-0, 79622000-0, 79624000-4, 79625000-1, a code in the range beginning with 85000000-9 and ending with 85323000-9, 98133100-5, 98133000-4, 98200000-5, 98500000-8 and a code in the range beginning with 98513000-2 and ending with 98514000-9.
(5) An organisation is a qualifying organisation if—
(a) it is an organisation that exists solely to provide benefits for society or the environment,
(b) it is neither—
(i) established by an enactment, nor
(ii) subject to control by a person established by an enactment,
(c) its profits (if any) are not expended except by way of—
(i) reinvestment with a view to providing the benefits for society or the environment that the organisation exists to provide, or
(ii) distribution to the community that the organisation exists to provide benefits to.
(6) For the purpose of paragraph (5)(b), an organisation is subject to the control of a person established by an enactment if a decisive influence over the strategic objectives and significant decisions of the organisation is exercised by—
(a) a person established by an enactment,
(b) a person that, by virtue of this paragraph, would itself be treated as subject to the control of a person established by an enactment,
(c) more than one person described by sub-paragraph (a) or (b) acting jointly.
(7) The Scottish Ministers may by regulations change—
(a) the CPV codes specified in paragraph (4)(c),
(b) the meaning of qualifying organisation.
(8) The power conferred by paragraph (7) may be exercised to make different provision for different purposes.”.

S. 16 not in force at Royal Assent, see s. 39(2)