On 9 February 2015 the Scottish Government launched their consultation on proposed changes to procurement rules. The changes are coming about as a result of a new European procurement directive and the Procurement Reform (Scotland) Act 2014.
The Scottish Government has until 18 April 2016 to transpose the provisions of the directive into Scots law, and this will result in the creation of new procurement regulations. These regulations will also comprise further provisions and guidance on the terms of the 2014 Act.
So what are the proposed changes to procurement rules? Some of the significant areas covered in the consultation document are:
Social/Environmental/Employment Issues
The new directive calls for public bodies to comply with obligations in relation to environmental, social and labour law in relation to procurement activities. The 2014 Act provides that, in every procurement process it carries out, a public body considers how its buying power can be used to improve the environmental, social and economic wellbeing of its area.
Making Contracts More Accessible to Small Businesses
This is one of the aims of the directive and the 2014 Act, which introduces the 'sustainable procurement duty', which obliges public bodies embarking on a procurement exercise to think about how they can make it easier for smaller businesses, the third sector and supported businesses to bid for the contract, as well as encouraging innovation.
Contracts for Care and Support Services
The new directive abolishes the current distinction between Part A and Part B services. This introduces a new 'light touch' regime for care and support contracts. Public bodies must adhere to rules introduced by member states, and such rules will only apply where such contracts are worth over 750,000 euros. The Scottish Government intends to make limited rules requiring compliance with the principles of transparency, proportionality and non-discrimination together with publication requirements as regards contract notices. The 2014 Act further states that the Scottish Government will publish guidance on procurement of health and social care contracts.
Procedural Rules
The directive codifies case law which provides for circumstances in which contracts can be modified without the need for a new procurement process. The Scottish Government do not intend to impose the relevant rules on lower value contracts.
Communication
The directive provides that all communication regarding procurement processes should be electronic, and sets a deadline for achieving this.
Remedies/Monitoring
The Scottish Government is considering a tribunal/ombudsman system to review complaints regarding compliance with procurement rules.
The deadline for responses is 30 April 2015 and we look forward to seeing draft regulations thereafter.
For more information on changes to procurement rules or advice on procurement issues, please get in touch with our team.
