PART 1: BACKGROUND AND TRANSPOSITION PLANS
Purpose
1. This consultation document invites views from stakeholders on the Scottish Government's approach to transposition of Directive 2007/66/EC 3 (the 'new Directive') of the European Parliament and of the Council, amending Council Directives 89/665/EEC 4 and 92/13/EEC 5 with regard to improving the effectiveness of review procedures concerning the award of public contracts.
Background
2. The new Directive was adopted by the EU Council of Ministers and the European Parliament on 11 December 2007. It was published in the Official Journal of the European Union ( OJEU) on 20 December 2007 and must be implemented by EU Member States within two years of that date. The text of the new Directive is attached at Annex B.
3. The new Directive was adopted following a successful proposal by the European Commission to amend the existing Remedies Directives: Directive 89/665/EEC (for the public sector) and Directive 92/12/EEC (for the utilities sector).
4. It makes a number of amendments to the existing Remedies Directives. These provisions are intended to improve the effectiveness of review procedures concerning the award of public contracts, in particular to:
i) Harmonise the standstill arrangements following contract award; and
ii) Introduce ineffectiveness as a remedy for illegal direct awards.
5. The standstill period was implemented in Scotland in the Public Contracts (Scotland) Regulations 2006 and the Utilities Contracts (Scotland) Regulations 2006 (the 'Scottish Regulations'). The standstill provisions in the new Directive are therefore relatively simple to implement, although we would welcome stakeholders' views on the points described below.
6. The introduction of "ineffectiveness" as a remedy for illegal direct awards is a more complex matter. The approach to implementation will depend, to a significant extent, upon the feedback and evidence provided by stakeholders.
Scope
7. The Scottish Government has responsibility for the transposition of EU Directives on Public Procurement into Scots law, so this consultation exercise is primarily aimed at consultees in Scotland. The Office for Government Commerce ( OGC) has responsibility for coordinating the transposition of these Directives into UK law and leads transposition for England, Wales and Northern Ireland. OGC is conducting a parallel consultation exercise: www.ogc.gov.uk/procurement_policy_and_application_of_eu_rules_european_procurement_directives.asp.
Approach
8. Implementation of Directive 2007/66/EC is mandatory. However, there is some flexibility and some optional elements in the new Directive, therefore the outcomes can be influenced to some extent by stakeholders' views. The Scottish Government aims to capture stakeholder views while managing the transposition, using the following methodology.
9. Stakeholders will be consulted on two separate occasions. The first, commenced by this document, will introduce the approach to implementation and seek appropriate feedback. Specifically, this first consultation aims to:
i) Highlight the main new provisions.
ii) Seek feedback on the optional elements of the new Directive, to gauge preferences and inform decisions on the preferred options.
A second consultation will take place in 2009. It will include a draft Scottish Statutory Instrument ( SSI), taking account of the results of the first consultation, and feedback will be sought on the proposed draft. The results of both consultation exercises will be published on the Scottish Government's website. Following the second consultation, the draft SSI will be finalised, made and laid before the Scottish Parliament in advance of the implementation deadline of 20 December 2009.
10. The Scottish Government plans to manage the transposition by amending the existing Scottish Regulations, rather than creating entirely new ones. Consultees are invited to express if alternative approaches would be preferred. We are consulting both the 'classic' public sector and the utilities sector simultaneously through a coordinated consultation process as the issues being addressed are broadly similar. Where there are sectoral differences, these will be made explicit.
References
11. In this consultation document we use the term 'the new Directive' to refer to Directive 2007/66/EC, and we use 'the Classic Remedies Directive' and 'the Utilities Remedies Directive' to refer to Directives 89/665/EC and 92/13/EEC respectively.
12. The new Directive simply amends the existing Classic and Utilities Remedies Directives, usually by substituting new articles for existing ones, or by inserting additional articles. For convenience, this consultation document will usually identify new provisions by reference to the number of the relevant article in the Classic or Utilities Remedies Directive as substituted, inserted or amended by the new Directive. Unless otherwise stated, it can be assumed that any article reference given in this document is the same in both the Classic and Utilities Remedies Directives. When looking at the new Directive (set out at Annex B to this document), you can navigate your way around it and find the relevant new provisions by bearing in mind that:
i) Article 1 of the new Directive contains all the changes to the Classic Remedies Directive; and
ii) Article 2 of the new Directive contains all the changes to the Utilities Remedies Directive.
13. For convenience, we use the term 'Scottish Regulations' in this consultation document to mean the Regulations that currently implement the existing Remedies Directives in Scotland i.e. the Public Contracts (Scotland) Regulations 2006 and the Utilities Contracts (Scotland) Regulations 2006.
Consultation period
14. Consultation is an essential and important aspect of Scottish Government working methods. In accordance with the Scottish Government's guidance on consultation and public engagement, this consultation will run for a period of 12 weeks.