Second Consultation on Implementing the EU Remedies Directive

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PART 1: BACKGROUND AND TRANSPOSITION PLANS

Purpose

1.1 This consultation document invites views from stakeholders on draft regulations and outstanding questions relating to the implementation in Scotland of Directive 2007/66/ EC2 (the 'new Directive') of the European Parliament and of the Council, amending Council Directives 89/665/ EEC3 and 92/13/ EEC4 with regard to improving the effectiveness of review procedures concerning the award of public contracts.

Background

1.2 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.

1.3 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 92/13/ EEC (for the utilities sector). The text of Directive 89/665/ EEC, as amended by Directive 2007/66/ EC, appears in the transposition table in Part 2.

1.4 The new Directive 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 a contract award decision;

ii) introduce ineffectiveness and other special penalties as remedies for certain serious breaches of the procurement rules;

iii) introduce the automatic suspension of a procurement procedure where the procedure is challenged in court.

1.5 There are a number of optional elements in the new Directive, allowing Member

States to choose between prescribed alternatives. We sought feedback on the optional elements in the Directive in a first consultation exercise in Autumn 2008. Where respondents gave permission for their response to be made public, these were published on the Scottish Government consultation web pages on 28 November 2008. We published an initial analysis of the responses we received on the Scottish Government's website on 13 February 2009: http://www.scotland.gov.uk/Publications/2009/02/remedies.

1.6 The responses to the first consultation have informed the drafting of amendments to the existing regulation governing information to be provided to suppliers about contract award procedures and the standstill period (regulation 32) and revisions to Part 9 of the Scottish Regulations governing applications to the Court.

Scope

1.7 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 of 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: http://www.ogc.gov.uk/procurement_policy_and_application_of_eu_rules_european_procurement_directives.asp.

Approach

1.8 This consultation seeks feedback on draft regulations and a number of outstanding questions relating to implementation of the new Directive. Following the closing date, all responses will be analysed and considered along with any other available evidence to help us to resolve the outstanding questions relating to implementation of the new Directive and to finalise revised Scottish Regulations. We aim to issue a report on this consultation process by 14 November 2009.

1.9 The Public Contracts (Scotland) Regulations 2006 and the Utilities Contracts (Scotland) Regulations 2006 (the Scottish Regulations) have been amended on four occasions since they came into force in January 2006. The Scottish Parliament's Subordinate Legislation Committee has indicated that, in its view, a Scottish Statutory Instrument ( SSI) should not be amended substantively more than five times. We therefore propose to incorporate the changes required by the Remedies Directive in consolidated Scottish Regulations - the Public Contracts (Scotland) Regulations 2009 and the Utilities Contracts (Scotland) Regulations 2009. The revised Scottish Regulations will be made and laid before the Scottish Parliament in advance of the implementation deadline of 20 December 2009.

1.10 The Remedies Directive is extremely complex and we are conscious of the need to present the changes to the Scottish Regulations in the most straightforward way possible, to help contracting authorities to make the necessary changes to their procedures and to aid suppliers' understanding of the new remedies available to them. We are working closely with colleagues in the Office of Government Commerce ( OGC) to resolve issues around implementation of the Directive and are very grateful for their input. Some of these issues require further discussion with the European Commission. The consultation document highlights the issues on which clarification from the Commission will be sought.

1.11 We are consulting both the public sector and the utilities sector simultaneously through a coordinated consultation process as the issues being addressed are broadly similar. For simplicity, the draft regulations consulted on are proposed amendments to the Public Contracts (Scotland) Regulations. Stakeholders from the utilities sector are nonetheless invited to comment on the outstanding questions in Part 3 and the draft regulations in Annex A. Where there are sectoral differences, these will be made explicit.

References

1.12 In this consultation document we use the term 'the new Directive' to refer to Directive 2007/66/ EC, and we use 'the Public Contracts Remedies Directive' and 'the Utilities Remedies Directive' to refer to Directives 89/665/ EC and 92/13/ EEC respectively.

1.13 The new Directive amends the existing Public Contracts and Utilities Remedies Directives, usually by substituting new articles for existing ones, or by inserting additional articles or deleting articles. For convenience, this consultation document will usually identify new provisions by reference to the number of the relevant article in the Public Contracts 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 Public Contracts and Utilities Remedies Directives.

1.14 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. References to regulations in this paper relate to regulations in the Public Contracts (Scotland) Regulations 2006, as they are proposed to be amended, as set out in Annex A.

Consultation period

1.15 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.