New public procurement rules come into force in Scotland on 18 April

Roger Cotton is a partner at Brodies
posted by Roger Cotton
29 February 2016

After a long wait, and over a year later than in the rest of the United Kingdom, 18 April 2016 will see the reform of public procurement law in Scotland. Two main things are happening.

First, there is the implementation of the two 2014 EU procurement directives applying to contracting authorities and to utilities, and the directive on concession contracts.

Second, the Procurement Reform (Scotland) Act 2014 comes fully into force, together with some additional regulations which add more detail to it. Much changes, but much will also stays the same.

For the buyer, there is lots of detail on compliance which will need to be followed to the letter. For the supply chain, the key point is the fundamentals stay the same. There are some changes to the procedural choices and steps, but the basic pattern of advert, competition, debrief and award is undisturbed.

Having said that one key thing for the supply chain is to pay more attention to prior information notices (PINs) published by authorities. In some cases these might be the only advert, which is different from the position now where PINs are followed up with a further notice advertising the contract more specifically.

The Procurement Reform Act introduces lower thresholds at which buyers need to advertise and to run a fair competition. These are £50,000 for goods and services, and £2 million for works – roughly half the EU thresholds. For suppliers this can only be good news. Most opportunities in Scotland are posted via www.publiccontractsscotland.gov.uk. Registration as a supplier is free and it works well in terms of opportunity alerts.

In addition to lower values being advertised and competed in this way, concession contracts will appear more regularly in the OJEU opportunities list. Concession contracts are those where the commercials involve the supplier making some or all of its money from end users of the service or facility, rather than simply being paid for delivery by the buyer. These will now be regulated with a level of detail similar to standard contracts (with OJEU advertisement mandated) rather than buyers having more discretion as to how to design an open and fair process.

Suppliers to buyers in Scotland should expect more focus on matters which could be argued to be ancillary to core delivery – in terms of community benefits, apprenticeships and encouraging SME involvement in the market.

A particular hot topic is the requirement to pay the living wage. The European Commission suggested to the Scottish Government mandating contractors pay the living wage would be incompatible with EU law. The response from government has been statutory guidance requiring buyers to think how fair workforce practices feed into the quality of delivery and so may be evaluated as part of the quality score. Payment of the living wage is on the list, along with issues such as diversity, managerial responsibility and support for learning and development.  If your policies on these issues are not well documented, now is the time to write them down.

Roger Cotton is a partner at Brodies

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