Part 4 Amendment of the Procurement Act 2023

47 Regulation of procurement by devolved Scottish authorities
1 The PA 2023 is amended as follows.
2 In section 2(5)(a) (contracting authorities), after “authority” insert “, except where a devolved Scottish authority carries out procurement falling within section 115A”.
3 After section 115, insert—

“115A Application of this Act where a devolved Scottish authority carries out procurement under a reserved procurement arrangement etc.
(1) This Act applies, without modification, where a devolved Scottish authority carries out procurement under a reserved procurement arrangement, a devolved Welsh procurement arrangement or a transferred Northern Ireland procurement arrangement, and as part of that procurement arrangement a contract is to be awarded following a procedure or other selection process carried out—
(a) jointly by that authority and one or more contracting authority which is not a devolved Scottish authority, or
(b) by a centralised procurement authority or equivalent body.
(2) In respect of procurement not falling within subsection (1) but to which subsection (3) applies—
(a) the provisions of this Act specified in column (1) of the Table in Schedule 9A apply in relation to that procurement, and
(b) where there is a modification specified in column (2) in respect of a provision specified in column (1), that provision applies subject to that modification.
(3) This subsection applies in relation to procurement carried out by a devolved Scottish authority under a reserved procurement arrangement, a devolved Welsh arrangement or a transferred Northern Ireland procurement, and as part of that procurement arrangement a contract is to be awarded—
(a) in accordance with a framework or similar arrangement, or
(b) by reference to a dynamic market, a utilities dynamic market or similar arrangement.
(4) This section applies only to a devolved Scottish authority which is—
(a) a contracting authority within the meaning of regulation 2(1) of the Public Contracts (Scotland) Regulations 2015, or
S.S.I. 2015/446, as amended by paragraph 17(2) of Schedule 3 of the Advanced Research and Invention Agency Act 2022 c. 4. There are other amendments which are not relevant.
(b) a utility within the meaning of regulation 4 of the Utilities Contracts (Scotland) Regulations 2016.
S.S.I. 2016/49, to which there are amendments, none of which are relevant.”

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4 After Schedule 9, insert—

“Schedule 9A Procurement by devolved scottish authorities
Section 115A
Provision of the PA 2023	Modification
(1)	(2)
Section 1 (procurement and covered procurement)	
Section 2 (contracting authorities)	
Section 3 (public contracts)	
Section 4 (valuation of contracts)	
Section 5 (mixed procurement: above and below threshold)	
Section 6 (utilities contracts)	Subsections (5) and (6) do not apply
Section 7 (defence and security contracts)	
Section 8 (concession contracts)	
Section 9 (light touch contracts)	Subsections (2) to (4) do not apply
Section 10 (mixed procurement: special regime contracts)	
Section 11 (covered procurement only in accordance with this Act)	
Section 19 (award of public contracts following a competitive tendering procedure)	Subsection (9) does not apply
Section 20 (competitive tendering procedure)	Subsection (9) does not apply
Section 21 (tender notices and associated tender documents)	
Section 22 (conditions of participation)	
Section 23 (award criteria)	
Section 24 (refining award criteria)	
Section 26 (excluding suppliers from a competitive award)	
Section 27 (excluding suppliers from a competitive flexible procedure)	
Section 28 (excluding suppliers by reference to sub-contractors)	
Section 29 (excluding a supplier that is a threat to national security)	
Section 30 (excluding suppliers for improper behaviour)	
Section 31 (modifying a section 19 procurement)	
Section 34 (competitive award by reference to dynamic markets)	
Section 35 (dynamic markets: establishment)	Subsection (3) does not apply
Section 40 (qualifying utilities dynamic market notices: no duty to publish a tender notice)	
Section 45 (frameworks)	Only subsections (1), (2) and (8) apply
Section 46 (frameworks: competitive selection process)	
Section 50 (contract award notices and assessment summaries)	Subsection (6)(b) does not apply
Section 51 (standstill periods on the award of contracts)	Subsections 3(a) to (c) do not apply
Section 53 (contract details notices)	Subsections (3) to (5) and (6)(b) do not apply
Section 54 (time limits)	The fourth entry in the table at subsection (4) (qualifying planned procurement notice) and the definition of “qualifying planned procurement notice” do not apply
Section 55 (procurement termination notices)	
Section 56 (technical specifications)	
Section 57 (meaning of excluded and excludable supplier)	
Section 58 (considering whether a supplier is excluded or excludable)	
Section 59 (notification of exclusion of supplier)	Subsections (1)(a)(iv) and (v) do not apply.
	In respect of a procurement carried out by a devolved Scottish authority, the “relevant appropriate authority” is the Scottish Ministers, as defined by section 44(2) of the Scotland Act 1998
Section 62(3) (debarment list: definition of debarment list)	
Section 67 (electronic invoicing: implied term)	
Section 78 (implied right to terminate public contracts)	
Section 79 (terminating public contracts: national security)	
Section 80 (contract termination notices)	
Section 81 (conflicts of interest: duty to identify)	Applies as though the definition of Minister in subsection (4) includes “the Scottish Ministers, as defined by section 44(2) of the Scotland Act 1998”
Section 82 (conflicts of interest: duty to mitigate)	
Section 83 (conflicts assessment)	
Section 89 (treaty state suppliers)	Subsection (3) does not apply
Section 90 (treaty state suppliers: non-discrimination)	
Section 91 (treaty state suppliers: non-discrimination in Scotland)	
Section 92 (trade disputes)	
Section 94 (general exemptions from duties to publish or disclose information)	
Section 96 (electronic communications)	
Section 98 (record-keeping)	
Section 99 (data protection)	
Section 100 (duties under this Act enforceable in civil proceedings)	Applies as though: (a) in subsection (1), the reference to Parts of the PA 2023 were replaced by the provisions of that Act specified to apply by section 115A and this Schedule; and (b) subsection (5) were omitted
Section 101 (automatic suspension of the entry into or modification of contracts	Applies in relation to entry into a public contract only, and as though, in subsection (5), the reference to section 76 were omitted
Section 102 (interim remedies)	Applies as though, in subsection (3), the reference to section 76 were omitted
Section 103 (pre-contractual remedies)	
Section 104 (post-contractual remedies)	
Section 105 (post-contractual remedies: set aside conditions)	Applies as though, in subsection (1)(b), the reference to section 76 were omitted, and subsection (3) were omitted.
Section 106 (time limits on claims)	
Section 107 (Part 9 proceedings and closed material procedure)	
Part 11 (appropriate authorities and cross-border procurement)	
Section 123 (interpretation)	Subsection (4) does not apply
Section 126 (extent)	
Section 128 (short title)	
Schedule 1 (threshold amounts)	
Schedule 2 (exempted contracts)	
Schedule 3 (estimating the value of a contract)	
Schedule 4 (utility activities)	
Schedule 6 (mandatory exclusion grounds)	
Schedule 7 (discretionary exclusion grounds)	
Schedule 9 (treaty state suppliers)	
Schedule 9A (procurement by devolved Scottish authorities)	
Schedule 10 (single source defence contracts)	
Schedule 11 (repeals and revocations)	
1998 c. 46.”

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48 Preliminary market engagement in relation to private utilities
1 The PA 2023 is amended as follows.
2 In section 17 (preliminary market engagement), after subsection (2), insert—

“(3) This section does not apply to a private utility, other than to a private utility which is a devolved Welsh authority that is not carrying out procurement under a reserved procurement arrangement or a transferred Northern Ireland procurement arrangement.”

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