The Procurement (Scotland) Regulations 2016

Made: 8th March 2016

Coming into force: 18th April 2016

In accordance with section 44(2) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

PART 1 — GENERAL

Citation and commencement

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These Regulations may be cited as the Procurement (Scotland) Regulations 2016 and come into force on 18th April 2016.

Interpretation

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In these Regulations—

• “the 2015 Regulations” means the Public Contracts (Scotland) Regulations 2015[^f00002];

• “the Act” means the Procurement Reform (Scotland) Act 2014;

• “candidate” means an economic operator that has sought an invitation to or has been invited to take part in a procurement procedure;

• “contract notice” means a notice published on the Public Contracts Scotland website in accordance with these Regulations;

• “contracting authority” means the State, a regional or local authority, a body governed by public law or an association formed by one or more such authorities or bodies;

• “CPV Code” means a code used in the Common Procurement Vocabulary as adopted by Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary[^f00003];

• “the Directive” means Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC[^f00004];

• ...

• “procurement” means the process leading to the award of a public contract for the acquisition of works, supplies or services from an economic operator;

• “procurement document” means any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice, ... the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;

• “public service contract” has the same meaning as in the 2015 Regulations;

• “public supply contract” has the same meaning as in the 2015 Regulations;

• “public works contract” has the same meaning as in the 2015 Regulations;

• “tenderer” means an economic operator that has submitted a tender.

PART 2 — REGULATED CONTRACTS AND DYNAMIC PURCHASING SYSTEMS

Methods for calculating the estimated value for regulated contracts

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• (1) A contracting authority must calculate the estimated value of a contract by reference to the total amount payable under it (regardless of the form of such payment), not including value added tax.

• (2) The total amount payable includes the amount payable as a result of the exercise of any form of option and any renewal of the contract as explicitly set out in the procurement documents.

• (3) Where a contracting authority provides for prizes or payments to candidates or tenderers it must take them into account when calculating the estimated value.

• (4) Where a contracting authority is comprised of separate operational units the authority—

• (a) may calculate the estimated value by reference to each such unit where that unit is independently responsible for its procurement; and

• (b) must calculate the estimated value by reference to the total for all the operational units which are not so responsible.

• (5) A contracting authority must not choose a method to be used to calculate the estimated value of a contract with the intention of excluding the contract from the application of the Act.

• (6) The estimated value must be the value estimated at the moment at which the procurement is commenced.

• (7) In the case of a framework agreement or dynamic purchasing system the estimated value shall be the total estimated value of all of the contracts envisaged pursuant to and for the total term of the agreement or system.

• (8) In the case of a public works contract the estimated value shall include the total estimated value of any supplies and services that are necessary for executing the works and are to be provided by the contracting authority to the contractor.

• (9) In the case of a public contract to be awarded in the form of separate lots, the estimated value shall be the total estimated value of all such lots.

• (10) In the case of public contracts which are regular in nature or which are intended to be renewed in a given period, the estimated value shall be calculated by reference to—

• (a) the total actual value of contracts of the same type awarded during the period of 12 months or the financial year preceding the proposed award of a further contract but with adjustment of such value, where possible, to take account of the changes in quantity or value which the authority considers will be likely to occur during the period of 12 months following the award of the contract; or

• (b) the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year where that is longer than 12 months.

• (11) In the case of a public supply contract relating to the leasing, rental, hire or hire purchase of products the estimated value shall be—

• (a) in the case of a fixed term contract for a period of less than or equal to 12 months, the total estimated value of the contract;

• (b) in the case of a fixed term contract for a period of more than 12 months, the total value including the estimated residual value;

• (c) in the case of a contract without a fixed term or the term of which cannot be defined, the monthly value multiplied by 48.

• (12) In the case of a public service contract for a service of a kind mentioned in this paragraph, the estimated value shall be calculated by reference to—

• (a) for insurance services, the premium payable and any other form of remuneration;

• (b) for banking and other financial services, the fees, commissions payable, interest and any other form of remuneration;

• (c) for design contracts, the fees, commissions payable and any other form of remuneration.

• (13) In the case of a public service contract which does not indicate a total price, the estimated value shall be calculated by reference to—

• (a) in the case of a contract for a fixed term of less than or equal to 48 months, the total value of the contract for its full term;

• (b) in the case of a contract for a fixed term of more than 48 months or a contract without a fixed term, the monthly value multiplied by 48.

Dynamic purchasing systems

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• (1) The Act applies to the establishment and operation of dynamic purchasing systems and to contracts awarded under dynamic purchasing systems, except that the following provisions do not apply to contracts awarded under a dynamic purchasing system—

• (a) section 8(2);

• (b) section 11;

• (c) section 23(1);

• (d) section 27.

• (2) In the application of section 23(2) of the Act to contracts awarded under dynamic purchasing systems a contracting authority may group notices on a quarterly basis, in which case the authority must send for publication the grouped notices within 30 days of the end of each quarter.

PART 3 — GENERAL DUTIES

Specification of health or social care services

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• (1) For the purposes of sections 12(1) and 13(1) of the Act and these Regulations, health or social care services are those services specified in column 1 of the Schedule to these Regulations by reference to their CPV Codes and broadly referred to in column 2 of the said Schedule.

• (2) Where the contract is a mixed contract including services of a kind referred to in the Schedule and other services or supplies or both, the contract will be a health or social care service contract for the purpose of the provisions referred to in paragraph (1) where the health or social care service characterises the main subject of the contract.

• (3) The main subject of the contract referred to in paragraph (2) shall be determined by reference to which of the services or supplies has the highest estimated value and in the event that the estimated values are equal the main subject shall be deemed to be the health or social care service.

Circumstances in which a contract can be awarded without competition

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• (1) A contracting authority may award a public contract without seeking offers in relation to the proposed contract—

• (a) where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to the publication of a contract notice, provided that the initial conditions of the contract are not substantially altered;

• (b) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons—

• (i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;

• (ii) competition is absent for technical reasons;

• (iii) the protection of exclusive rights, including intellectual property rights;

but only, in the case of paragraphs (ii) and (iii), where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;

• (c) where (but only if it is strictly necessary) for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the authority considers it must proceed to award a contract without delay;

• (d) where the following conditions apply—

• (i) it is for new works, services or both, consisting of the repetition of similar works or services entrusted to the economic operator to which the contracting authority awarded an original contract, provided that such works or services are in conformity with the project for which the original contract was awarded;

• (ii) the project indicated the extent of possible additional works or services and the conditions under which they would be awarded;

• (iii) the possible use of this procedure was disclosed in the procurement documents and the total estimated cost of subsequent works or services was taken into consideration by the contracting authority when determining the estimated value for the purpose of applying section 3(1)(b) of the Act in relation to the original contract; and

• (iv) not more than three years has elapsed following the conclusion of the original contract.

• (2) For the purposes of paragraph (1)(a)—

• (a) a tender shall be considered not to be suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the contracting authority’s needs and requirements as specified in the procurement documents;

• (b) a request to participate shall be considered not to be suitable where the economic operator concerned—

• (i) has been or would be excluded under regulation 9; or

• (ii) does not meet the selection criteria.

• (3) For the purposes of paragraph (1)(c), the circumstances invoked to justify extreme urgency must not, in any event, be attributable to the contracting authority.

• (4) A contracting authority may award a public supply contract without seeking offers in relation to the proposed contract—

• (a) where the products involved are manufactured purely for the purpose of research, experimentation, study or development, but a contract awarded under this sub‑paragraph shall not include quantity production to establish commercial viability or to recover research and development costs;

• (b) for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance;

• (c) for supplies quoted and purchased on a commodity market;

• (d) for the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.

• (5) For the purposes of paragraph (4)(b), the duration of such a contract, as well as that of recurrent contracts must not, save in exceptional circumstances, exceed three years.

• (6) A contracting authority may award a public service contract without the publication of a contract notice where the contract concerned—

• (a) follows a design contest organised in accordance with the 2015 Regulations; and

• (b) is to be awarded, under the rules provided for in the design contest, to the winner or one of the winners of the design contest.

PART 4 — SPECIFIC DUTIES

Publication of contract notices, prior information notices and award notices on the Public Contracts website

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• (1) Where a notice to be published in accordance with section 23(1) of the Act relates to a higher value regulated procurement for which notice must be published in accordance with regulations 49, 50, 51 and 78 of the 2015 Regulations, a contracting authority must comply with regulation 53(3) and (4) of those Regulations.

• (2) A contracting authority must publicise its intention to seek offers by publishing a contract notice.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) A contract notice published in accordance with paragraph (2) must contain the information set out in Part C of Annex V to the Directive , but as if—

• (a) in paragraph 2, reference to “for the reasons set out in the second and third subparagraphs of Article 53(1),” were omitted,

• (b) paragraph 24 (financing by EU funds) were omitted,

• (c) in paragraph 26, “in the Official Journal of the European Union” read “on the Public Contracts website”,

• (d) in paragraph 28, “date of dispatch” were a reference to the date on which the notice is submitted to the Public Contracts website.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) Not later than 30 days after the award of a contract to be published in accordance with section 23(2) of the Act, a contracting authority must send for publication a contract award notice.

• (7) A contract award notice must contain the information set out in Part D of Annex V to the Directive , but as if—

• (a) in paragraph 9, “referred to in Article 67” were omitted,

• (b) in paragraph 11(b), the words “member State or from a third” were omitted,

• (ba) in paragraph 13, the words “or the highest tender and lowest tender taken into consideration” were omitted,

• (c) paragraph 15 (financing by EU funds) were omitted,

• (d) in paragraph 17, “in the Official Journal of the European Union” read “on the Public Contracts website”,

• (e) in paragraph 18, “date of dispatch” were a reference to the date on which the notice is submitted to the Public Contracts website.

• (8) A contracting authority may withhold information from publication in a contract award notice where the release of the information would—

• (a) impede law enforcement or otherwise be contrary to the public interest;

• (b) prejudice the commercial interests of any person; or

• (c) prejudice fair competition between economic operators.

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Selection of tenderers: exclusion of economic operators on grounds of criminal activity

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• (1) A contracting authority must exclude an economic operator from participation in a procurement procedure where the contracting authority has established or is otherwise aware that that economic operator or a person to whom paragraph (2) applies has been convicted of any of the following offences—

• (a) the common law offence of conspiracy where that conspiracy relates to participation in a criminal organisation as defined in Article 2 of Council Framework Decision 2008/841/JHA on the fight against organised crime[^f00005] or an offence under sections 28 or 30 of the Criminal Justice and Licensing (Scotland) Act 2010[^f00006];

• (b) corruption within the meaning of section 1(2) of the Public Bodies Corrupt Practices Act 1889[^f00007] or section 1 of the Prevention of Corruption Act 1906[^f00008], where the offence relates to active corruption as defined in Article 3 of the Council Act of 26th May 1997 on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union[^f00009] and Article 3(1) of Council Joint Action 98/742/JHA on corruption in the private sector[^f00010];

• (c) bribery or corruption within the meaning of sections 68 and 69 of the Criminal Justice (Scotland) Act 2003[^f00011], where the offence relates to active bribery or corruption;

• (d) bribery within the meaning of sections 1 or 6 of the Bribery Act 2010[^f00012];

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (f) any offence listed in—

• (i) section 41 of the Counter-Terrorism Act 2008[^f00019]; or