Scottish Procurement Reform Update: Additional provisions of the Procurement Reform (Scotland) Act 2014
The Procurement Reform Act 2014 was passed in summer 2014, at which point a small number of its provisions came into force. On 28 September 2015 a number of additional provisions were brought into force by the Procurement Reform (Scotland) Act 2014 (Commencement No. 1) Order 2015/331.
In particular, one of the provisions enables Scottish Ministers to publish guidance about the selection of tenderers and the award of contracts, including in relation to workforce matters. It is anticipated that guidance will follow over the next few months.
The Act, once in force, will set out requirements in relation to a new tier of “regulated contracts”, which have a value below the EU public procurement thresholds and above specified thresholds, though certain contracts are excluded from the scope of the Act. The specified thresholds are currently £2 million for public works contracts and £50,000 for other public contracts.
The Act creates a new “sustainable procurement duty” for all contracting authorities in Scotland.
Provision is also made for a number of specific duties. Contracting authorities which expect their expenditure to exceed £5 million in the next financial year will be obliged to publish a procurement strategy and annual report. Additionally, where contracts have a value of £4 million or more (as currently expressed), contracting authorities will have a duty to consider whether to include “community benefit requirements”.
The coming into force of the above provisions of the Act is one of a number of significant developments in procurement law in Scotland expected over the coming months.
Implementation of European procurement directives requires new Scottish procurement regulations to replace the Public Contracts (Scotland) Regulations 2012 and the Utilities Contracts (Scotland) Regulations 2012. The remaining provisions of the Procurement Reform (Scotland) Act 2014 are still to come into force and statutory guidance is expected covering the following areas: production of corporate procurement strategies and annual report, the new sustainable procurement duty, including community benefits in procurement and procurement of health and social care contracts.