The Procurement Reform Scotland Bill was introduced in the Scottish Parliament on 3 October 2013. Once it becomes law, the Act will exist alongside the current procurement regulations, but will make some fundamental changes in the way public contracts are procured in Scotland.
Some of the main changes are:
- Increased regulation - supplies/services contracts with a value of ?50,000 or more and works contracts with a value of ?2,000,000 or more which are currently not covered by the procurement regulations are subject to the Bill;
- The ?sustainable procurement duty? ? public bodies must consider how they can improve economic/social/environmental wellbeing, involve SMEs, third sector bodies and supported businesses and promote innovation through procurement. While this is a noble aspiration, the language is vague which is a concern for public bodies trying to comply with such a statutory duty;
- Public bodies letting contracts totalling ?5,000,000 or more in the next financial year must have a procurement strategy, including a statement of the use of community benefit requirements. This is more ?red tape? for public bodies but this obligation may encourage/enhance forward-planning and a strategic approach to procurement of smaller contracts, which may bring savings;
- Public bodies must advertise contracts on the Public Contracts Scotland website. This is already widely used as current Scottish Government guidance states that contracts of ?50,000 or more should be advertised here;
- Public bodies letting a contract with a value of ?4,000,000 or more must consider whether to impose community benefit requirements. There may be disappointment with the obligation only to ?consider? such requirements, as not going far enough. However, it would be difficult to introduce a blanket obligation as these may not be appropriate for all contracts;
- The Scottish Ministers may make regulations regarding the bidder selection, including disqualification where performance in relation to another procurement exercise was unsatisfactory;
- There are obligations in relation to notifying unsuccessful bidders and giving reasons for exclusion ? currently such obligations are only applicable to above threshold contracts in the procurement regulations, therefore this is a greater burden;
- Statutory remedies for contracts covered by the Bill ? previously unsuccessful bidders could only raise an action for judicial review of the decision to award a below-threshold contract.
This is an exciting time for procurement law in Scotland and although this imposes greater regulation on public bodies, many of the changes are intended to have a positive social impact, and should bring greater clarity for public bodies.
If you have any queries in relation to procurement or the procurement reform Scotland Bill, please contact our procurement team.