Part 2

Reforms connected to delivery and regulation of care
Chapter 1

Modifications to other enactments

Commissioning

Reserving right to participate in procurement by type of organisation
16
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.
.