Public Law

It’s all change for procurement law in Scotland, with the main provisions of the Public Contracts (Scotland) Regulations 2015 and Procurement Reform (Scotland) Act 2014 coming into effect for procurements commenced from today onwards. The Utilities Contracts (Scotland) Regulations 2016 and Concessions Contracts (Scotland) Regulations 2016 (as amended) also come into force today.

The Regulations incorporate into Scots law the EU’s 2014 Procurement Directives (today is the deadline Member States were given for implementation). The 2015 Regulations impose new rules for above-threshold contracts, including a mandatory new form of tender documentation; new thresholds and rules for ‘Part B’ services; and new rules on excluding bidders. The Regulations also prescribe the circumstances in which authorities may amend an above-threshold contract, regardless of when it was entered into.

The Procurement Reform (Scotland) Act 2014 imposes new formal rules for lower-value contracts (£50K for goods and services and £2M for works), including a duty to publish contract and award notices on Public Contracts Scotland. Authorities will also be obliged to put in place a publicly-available contracts register, recording the details of all contracts awarded under the Act or Regulations.*

Other changes will take effect in due course, including the introduction of the sustainable procurement duty and new obligations to consider the use of community benefit requirements; publish annual procurement strategies and reports; and use only electronic communications.

To help contracting authorities and bidders manage and track the transition, we have produced a checklist noting some practical steps that should be taken to ensure compliance with the new obligations, and a timeline setting out when the key changes take effect.

Click here for the checklist and here for the timeline. We also produced a briefing on the Act’s most significant changes at the time of its passage, which you can find here.

Being EU-derived, there was limited scope for the Scottish Regulations to differ from the UK equivalents, though they have done so in some important respects (e.g. price-only awards will no longer be permitted in Scotland), and the enforcement mechanisms have of course always been different given Scotland’s separate court system and practice. However, the 2014 Act creates substantive differences between Scotland and the other UK jurisdictions for the first time, particularly for contracts above the Scottish thresholds but below the EU ones. Cross-border bidders will need to be aware of and properly advised on these differences when participating in procurement activity in Scotland.

*Authorities who do not yet have a contracts register in place may be interested in BOrganised, our simple, flexible and cost-effective contract management solution. BOrganised can be tailored to meet the contracts register requirements (and much more besides), and crucially can be implemented quickly without needing a major IT project or resource. Find more information on BOrganised here, and here for more on how it can help you comply with the new procurement rules.

For more information, please get in touch with me or our head of procurement Roger Cotton.

Charles Livingstone

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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