Scottish Government

THE DRAFT PUBLIC CONTRACTS AND UTILITIES CONTRACTS (SCOTLAND) AMENDMENT REGULATIONS 2007

Purpose

1. The purpose of this SPPN is to inform you of draft amendments to the Public Contracts (Scotland) Regulations 2006 and Utilities Contracts (Scotland) Regulations 2006. These amendments are needed to take account of the accession of Bulgaria and Romania to the European Union, as well as minor technical clarifications that have been identified since the Regulations came into force.

2. In addition, we are proposing to amend regulation 8(21) of the Public Contracts (Scotland) Regulations (and the equivalent provision in the Utilities Contracts (Scotland) Regulations - regulation 11(20)) to clarify the requirement on all contracting authorities to adhere to the European Treaty principles of equal treatment, non-discrimination and transparency. We are also amending Schedule 1 of the Public Contracts (Scotland) Regulations to reflect changes to the status of a number of bodies listed in Annex I to the Government Procurement Agreement.

Background

3. The consolidated Public Procurement Directive 2004/18/EC and revised Utilities Directive 2004/17/EC were implemented by the Public Contracts (Scotland) Regulations 2006 ( SSI 2006 No. 1) and the Utilities Contracts (Scotland) Regulations 2006 ( SSI 2006 No. 2) respectively. These Regulations were implemented following an extensive consultation exercise, details of which can be found at http://www.scotland.gov.uk/Topics/Government/Procurement/PublicProcurement/consolidated-directives/consolidated-directive.

4. Since implementation, the European Commission has adopted a new Directive solely to reflect the accession of Bulgaria and Romania. The primary purpose of the draft Regulations is to implement that Directive; there is no substantive change to the rules themselves.

5. We are, however, also taking this opportunity to implement a small number of changes and clarifications that have been identified since the Regulations came into force. Regulation 8(21) of the Public Contracts (Scotland) Regulations and regulation 11(20) of the Utilities Contracts (Scotland) Regulations require contracting authorities to ensure a degree of advertising which is sufficient to enable open competition and meet the requirements of the principles of equal treatment, non-discrimination and transparency. The Regulations give effect in Scots law to rulings of the European Court of Justice that, even where the European Procurement Directives (and hence the Scottish Regulations) do not require an advertisement to be placed in the Official Journal of the European Union, there will usually be a need for contract opportunities to be subject to some form of publicity so as to meet basic EU Treaty requirements.

6. We intend to use this opportunity to confirm that the above Treaty principles require not only adequate publicity of the contract to be awarded, the contract itself must be awarded in line with the rules and principles of the EU Treaty. For example, contracting authorities must ensure that all potential bidders know in advance how the contract will be awarded and are given sufficient time to express their interest. This amendment is a clarification of existing law and does not, therefore, represent an additional burden on contracting authorities.

7. The amending Regulations will be implemented by March 2008.

Scope

8. This consultation is solely for the draft amending Regulations and invites comments only relating to the specific amendments that are being proposed, by 21 December 2007. Details of how to respond can be found at Annex A. This paper does not invite comments on the 2006 Regulations, nor does it seek views on other matters that fall outside the scope of the draft amending Regulations. Given the scope and nature of the changes proposed we do not anticipate these impacting significantly on contracting authorities or other stakeholders.

Overview of the proposed amendments

9. The proposed amendments are provided in a draft Scottish Statutory Instrument at Annex C. The changes fall into four main groups:

• updates to the Regulations following the recent accession of Romania and Bulgaria, in terms of the associated references to listed Member States;
• ensuring that all professional and trade registers are taken into account in the Regulations;
• clarification of a small number of other detailed references, to improve cross-referencing and to provide some clarification on issues that have come to light since the 2006 Regulations were implemented;
• clarification of the requirement on all contracting authorities to adhere to the European Treaty principles of equal treatment, non-discrimination and transparency.

Dissemination

10. Please bring this SPPN to the attention of all relevant staff, including those in Agencies, Non Departmental Government Bodies and other sponsored public bodies within your area of responsibility. This guidance note has been published on the Scottish Government's website at http://www.scotland.gov.uk/Consultations/Current.

Contact

11. Any queries in relation to this SPPN, or the consultation exercise, should be addressed to Jessie Laurie, Procurement Policy Manager, Scottish Procurement Directorate, telephone 0141 242 5672, e-mail jessie.laurie@scotland.gsi.gov.uk or Hazel Malcolm, Senior Policy Officer, Scottish Procurement Directorate, telephone 0141 242 5915, e-mail hazel.malcolm@scotland.gsi.gov.uk.

28 September 2007