How do you comply with the new public procurement regulations? The Public Contracts (Scotland) Regulations 2012 came into force in May 2012, replacing the 2006 procurement regulations.

The new regulations consolidate the 2006 public procurement regulations and subsequent amending regulations into one document, as well as incorporating some important changes.

What are the main changes?

• Time limits for raising an action: Aggrieved tenderers must now raise a court action against a public body carrying out a procurement exercise within thirty days of the date on which the tenderer knew or ought to have known that the breach of the regulations first arose. The court can, at its discretion, extend this period to three months where it considers that there is a good reason for extending the period.
• Inclusion of the Bribery Act 2010 and Criminal Justice and Licensing (Scotland) Act 2010: Public bodies are required to exclude tenderers if they have actual knowledge that the tenderer/its directors/any person with powers of representation/decision/control in respect of that tenderer has been convicted of certain of the offences introduced by the Bribery Act or the Criminal Justice and Licensing Act. These offences relate to the bribery of another person in order to obtain or retain business or an advantage in the conduct of business, and involvement in serious organised crime and directing serious organised crime respectively.

The new procurement regulations apply to procurement procedures commenced after 1 May 2012.

The changes in relation to time limits for raising an action will be welcomed by public bodies regularly engaged in procurement processes. Case law has also shown that:

• The previous obligation on an unhappy tenderer to bring proceedings 'promptly and in any event within 3 months of the date when grounds for bringing proceedings first arose' was incompatible with EU law as it was vague and open to discretionary application.
• The changes also clarify the distinction between the former definition of the relevant date as 'the date when grounds for bringing proceedings first arose' and the new 'date on which the tenderer knew or ought to have known of the breach'. This is perhaps, in practical terms, a subtle distinction but the restriction of the period to 30 days is advantageous where an unhappy tenderer has indicated that it may raise proceedings as the public body involved has a shorter period to wait for such a threat to be actioned.

If you are embarking on a procurement exercise and want to know more about public procurement regulations contact us for advice.