Procurement Reform (Scotland) Act 2014
Procurement Reform (Scotland) Act 2014
2014 asp 12
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 13th May 2014 and received Royal Assent on 17th June 2014
An Act of the Scottish Parliament to make provision about the procedures relating to the award of certain public contracts; to require certain authorities to produce procurement strategies and annual reports; and for connected purposes.
Part 1
Key concepts and application
Contracting authorities
1 Contracting authorities
(1) For the purposes of this Act, a "contracting authority" is-
(a) a body, office-holder or other person listed in the schedule, or
(b) any other person who is a contracting authority for the purposes of the Public Contracts Regulations and whose functions-
(i) are exercisable in or as regards Scotland, and
(2) The Scottish Ministers may by order modify the meaning of "contracting authority" for the purposes of this Act.
(3) An order under subsection (2) may amend subsection (1) and the schedule.
Regulated procurements
2 Regulated procurements
For the purposes of this Act, a "regulated procurement" is-
(i) the seeking of offers in relation to the contract, and
(ii) the selection of economic operators,
(b) the award of a regulated contract by a contracting authority.
Regulated contracts
3 Regulated contracts
(1) A contract is regulated if-
(a) it is a public contract,
(b) the estimated value of the contract (see section 5) is equal to or greater than the contract threshold, and
(c) the contract is not an excluded contract (see section 4).
(2) For the purposes of this Act, the contract threshold is as follows-
Type of contract |
Threshold |
Public contract (other than a public works contract) |
£50,000 |
Public works contract |
£2,000,000 |
(3) The Scottish Ministers may by order amend the table in subsection (2) so as to substitute for the figures specified there for the time being such other figures as they consider appropriate.
4 Excluded contracts
(1) A contract is an excluded contract for the purposes of section 3 if-
(a) it is a contract of a kind mentioned in paragraph (1) or (2) of regulation 6 of the Public Contract Regulations,
(b) the following conditions apply-
(i) it is for the purpose of acquiring goods, works or services in order to sell, hire or provide them to other persons,
(ii) the contracting authority will not have an exclusive right to sell, hire or provide the goods, works or services, and
(iii) the conditions on which the contracting authority intends to sell, hire or provide them are the same as or similar to the conditions on which another person could sell, hire or provide the same or similar goods, works or services, or
(c) the principal purpose of the contract is to acquire goods, works or services in connection with research or development undertaken by the contracting authority.
(2) The Scottish Ministers may by regulations amend subsection (1) so as to modify the kinds of contracts which are or are not excluded contracts.
5 Estimated value of contract
(1) For the purposes of this Act, the estimated value of a contract is the value of the total consideration (not including value added tax) which the contracting authority expects to be payable under or by virtue of the contract.
(2) The Scottish Ministers may by regulations make further provision about how the estimated value of a contract is to be determined.
Framework agreements and dynamic purchasing systems
6 Framework agreements and call-off contracts
(1) For the purposes of this Act-
(a) a framework agreement is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing public contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged,
(b) a call-off contract is a contract awarded under a framework agreement.
(2) This Act applies to framework agreements and call-off contracts as follows-
(a) a framework agreement is treated as a public contract for the purposes of section 3 (and references to "contract" elsewhere in this Act are to be construed accordingly),
(b) the following provisions do not apply to a regulated procurement in so far as it relates to a call-off contract-
(i) section 8(2),
(ii) section 11,
(iii) section 23(1),
(iv) section 27.
7 Dynamic purchasing systems
(1) The Scottish Ministers may by regulations make provision about dynamic purchasing systems including, in particular, provision-
(a) applying this Act to the establishment and operation of a dynamic purchasing system as it applies to the carrying out of a regulated procurement with such modifications as the regulations may specify,
(b) modifying the application of this Act to a contract awarded under a dynamic purchasing system.
(2) For the purposes of subsection (1), a dynamic purchasing system is an electronic system-
(a) established by a contracting authority to purchase goods, services or works which are-
(i) commonly used by the authority, and
(ii) readily available on the market, and
(b) which is open to any economic operator who satisfies selection criteria specified by the contracting authority.
Part 2
General duties and procurement strategies
General duties
8 General duties
(1) A contracting authority must, in carrying out a regulated procurement-
(a) treat relevant economic operators equally and without discrimination,
(b) act in a transparent and proportionate manner.
(2) A contracting authority must also comply with the sustainable procurement duty.
(3) However, a contracting authority must not do anything in pursuance of subsection (2) that would conflict with its duty under subsection (1).
(4) A relevant economic operator is an economic operator who is a national of, or is established in-
(a) a member State, or
(b) Iceland, Liechtenstein or Norway.
(5) Subsection (1) does not apply in relation to an EU-regulated procurement.
9 Sustainable procurement duty
(1) For the purposes of this Act, the sustainable procurement duty is the duty of a contracting authority-
(a) before carrying out a regulated procurement, to consider how in conducting the procurement process it can-
(i) improve the economic, social, and environmental wellbeing of the authority's area,
(ii) facilitate the involvement of small and medium enterprises, third sector bodies and supported businesses in the process, and
(iii) promote innovation, and
(b) in carrying out the procurement, to act with a view to securing such improvements identified as a result of paragraph (a)(i).
(2) The contracting authority must consider under subsection (1) only matters that are relevant to what is proposed to be procured and, in doing so, consider the extent to which it is proportionate in all the circumstances to take those matters into account.
(3) In this section-
"small and medium enterprises" means businesses with not more than 250 employees,
"third sector bodies" means organisations (other than bodies established under an enactment) that exist wholly or mainly to provide benefits for society or the environment.
(4) In this section, references to the wellbeing of the authority's area include, in particular, reducing inequality in the area.
10 Guidance on sustainable procurement duty
(1) The Scottish Ministers may publish guidance on the sustainable procurement duty.
(2) Contracting authorities must have regard to any guidance published under this section.
(3) The Scottish Ministers must lay a copy of any guidance published under this section before the Scottish Parliament.
11 Supported businesses
(1) Despite section 8, a contracting authority may restrict participation in a regulated procurement (other than an EU-regulated procurement) to supported businesses only.
(2) Where a contracting authority restricts participation under subsection (1), it must state that fact in the contract notice.
(3) For the purposes of this Act, a "supported business" is an economic operator who operates a supported business, supported employment programme or supported factory within the meaning of regulation 7 of the Public Contracts Regulations.
12 Contracts for health or social care services
(1) Despite section 8, a contracting authority may award a contract for a health or social care service without seeking offers in relation to the proposed contract.
(2) In relation to a regulated procurement where, by virtue of subsection (1), a contracting authority does not seek offers, section 23(1) does not apply.
(3) The Scottish Ministers may by regulations make provision specifying what is a health or social care service for the purposes of subsection (1) and section 13(1).
13 Guidance on procurements for health or social care services
(1) The Scottish Ministers...
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