Regulations to implement the new EU public procurement directive in Scotland were laid in the Scottish Parliament on Friday 18 December and published by the Scottish Government with an accompanying Policy Note on 21 December (available here).

The Public Contracts (Scotland) Regulations 2015 (the Regulations) implement the EU Directive 2014/24/EU (the Directive) and are to take effect alongside almost all of the remaining provisions of the Procurement Reform (Scotland) Act 2014 from 18 April 2016. 

For the most part the Regulations follow the “copy out” approach adopted by the UK Government in respect of the equivalent regulations adopted for England, Wales and NI. However, the Scottish Government has also taken the opportunity afforded by the Directive to adopt specific rules on certain key provisions. 

Mandating blacklisting 

The Regulations make it a mandatory ground of exclusion for bidders found to have committed an act prohibited under the Employment Relations Act 1999 (Blacklists) Regulations 2010 or to have voluntarily admitted doing so, subject to maximum time limits and “self-cleansing”. 

Banning price / cost only award criteria 

Contract award criteria must be “on the basis of the best price-quality ratio, which must be assessed on the basis of criteria linked to the subject-matter of the public contract in question and must include the price or cost, using a cost-effectiveness approach” (Regulation 67(2)). 

No reservation of contracts for mutuals 

In a snub to the Cabinet Office’s success on lobbying for a specific provision in the Directive on reserving contracts for mutuals (not-for-profit businesses spun out of the public sector) the Scottish Government has concluded that the provision in the Directive is so limited that it may rarely be applicable and therefore decided not to include it. 

Regulations implementing the new EU Concessions Directive and Utilities Directive are to be laid before the Scottish Parliament in January, also to take effect from 18 April 2016.