The Scottish Government has published a Scottish Procurement Policy Note (SPPN 4/2013) setting out the circumstances when procuring authorities can exclude from public sector procurements those organisations who have been involved in the practice of ‘blacklisting’.  Blacklisting refers to the practice of an organisation using, compiling or sharing lists of individuals who are or have been members of a trade union to discriminate against them.

The main changes introduced by the Policy Note are as follows:

PQQ questions

Three questions aimed at eliciting whether a bidder has previously engaged in blacklisting activities should be added to pre-qualification questionnaires.  The Policy Note states that “any supplier which has committed a breach of the relevant legislation should be considered to have committed an act of grave misconduct in the course of its business and should be excluded from tendering under regulation 23(4)(e) of the Public Contracts (Scotland) Regulations 2012 until and unless it can demonstrate that it has taken appropriate remedial steps. Any exclusion must be proportionate to the scale and nature of the offence or misconduct.”

A bidder who has committed a blacklisting offence should be asked to provide actual evidence they have taken remedial steps, such as, implementing measures to prevent future misconduct, making a statement on future conduct, complying with tribunal rulings and paying compensation for any damage caused as a result of blacklisting.

Contract clause

A new anti-blacklisting clause should be added to public contracts which will allow contracting authorities to immediately terminate a contract if a supplier breaches the Employment Relations Act 1999 (Blacklists) Regulations 2010, s. 137 of the Trade Union and Labour Relations (Consolidation) or the Data Protection Act 1998 by unlawfully processing personal data to blacklist

Applicable contracts

Where it is appropriate to do so, contracting authorities are encouraged to include the pre-qualification questions and contract clause in current procurement exercises.  Significantly, the guidance applies to all public sector contracts regardless of value, although, the Policy Note accepts pre-qualification is unlikely to take place on lower value contracts.  As a consequence, the new blacklisting PQQ questions and contract clause could impact on bidders of all sizes, not just large organisations.

To review the full Policy Note please click on the following link: