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- These Directives are given effect in Scots Law by The Public Contracts (Scotland) Regulations 2012 and the Utilities Contracts (Scotland) Regulations 2012
(i) Open Competition and Advertising
We have a legal obligation to provide adequate publicity in calling for tenders, even in circumstances when the procedural requirements of the EU Procurement Directives do not require advertisement in the Official Journal.
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Below is a précis of the Regulations. Procurement staff will provide advice on the interpretation and application of this policy.
(ii) Legal obligation to ensure adequate publicity for Public Contracts - Enforcement
Regulations mean that the award of a contract without any advertising or competition may be challenged by aggrieved suppliers in the Sheriff Court or Court of Session, even where the contract is itself exempt from the detailed advertising and procedural requirements in the Scottish Regulations.
It is for individual contracting bodies to decide whether advertising is required (and in what form) and to defend their decisions as necessary. Decisions which are documented and based on legitimate business needs and objective criteria are likely to be defensible. Decisions which are not documented, are arbitrary or which are based solely on convenience to the contracting body or a long standing relationship with a particular supplier is unlikely to be defensible.
(iii) Advertising
a) RoS’s procurement policy requires that Value for Money must be sought in all procurements, and that this is to be achieved through competition unless there are compelling grounds to the contrary. This is likely to involve some degree of publicity – which may range from seeking a number of quotations, to regional/trade/website advertising. In addition, increased publicity of below-threshold contracts has been implemented in an attempt to encourage participation of SMEs and ethnic minority businesses to bid for Public Sector business.
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e) In all cases, the method of publication should reflect the relevance of the contract to the Internal Market. For example, where a requirement is likely to be only of interest to small, local firms, publication in a local newspaper may suffice. On the other hand, an advert in a local newspaper is unlikely to constitute “adequate publicity” for a high value service contract. As a rule of thumb, the greater the value of the contract or market interest in the contract, the greater the coverage of the advert should be. In all cases, the form of advertising should be sufficient to allow interested companies a reasonable prospect of identifying the opportunity through their own market research.
(iv) Level of Detail to be Publicised
The level of detail contained in the advertisement should be sufficient to enable prospective suppliers to decide whether they are interested and should be proportionate to the value and complexity of the requirement. In most cases the requirement will be satisfied by the provision of a short description of the essential details of the contract to be awarded and of the award procedure, e.g. lowest price or Most Economically Advantageous Tender (MEAT) which would include publishing the relevant evaluation criteria (and where appropriate an approximate value of the contract), together with an invitation to contact the contracting body in order to obtain additional information.
(v) Specifications
Great care must be exercised in setting/accepting all or any technical or other specifications as they will form the basis of a contract which will be legally binding.
(vi) Acknowledgement of Invitation to Tender
Where the ePS Electronic Tendering system is not being used and when considered appropriate, sets of 'tender' documents issued to potential sources of supply should also include some form of instruction asking the bidders to email (or fax/post) an acknowledgement of receipt.. This arrangement helps protect RoS in that evidence exists to show that the documentation was issued to and received by the potential supplier.
(vii) Use of Tenders
a) Tender documents must be issued for all major purchases with a value exceeding £25,000 and in the case of purchases exceeding £50,000 sealed tenders may be required including the hiring and leasing of goods, services and works contracts.
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c) The minimum number of tenders required (normally 3) must be related to the approximate value (ex VAT) of the proposed order or contract. When pre-defined threshold values are reached then EU legislation will regulate all aspects of the tendering process. RoS has set the financial limits above which the following actions contained in Overview of Procurement Procedures must be followed.
(viii) Tenders.
Each set of Invitation to Tender documents shall, in all respects, be uniform and contain details of technical and other specifications and must also include a copy of appropriate set of RoS standard Terms and Conditions of Purchase (or any amended Terms and Conditions as approved by Legal Services) [see Appendix B],
(ix) Competition Levels
Note: More detailed information on Competition Levels can be found in Appendix C
(x) Non Competitive Action (NCA)
It is RoS policy that goods, services and works must be bought by genuine and effective competition. Non Competitive Action (NCA) is only granted in exceptional circumstances. It is strictly limited to situations where competition is not deemed appropriate.
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These values are exclusive of VAT and are for the total duration of the contract (including any extension periods).
(xi) Formal challenges/complaints
Regulation 47 of the Public Contracts (Scotland) Regulations 2012 and Regulation 44 of the Utilities Contracts (Scotland) Regulations 2012 allows suppliers to bring proceedings in the Sheriff Court or Court of Session against contracting authorities which have infringed their obligations to comply with the Regulations, or any other enforceable European Community law provision which may be relevant to awarding a public contract.
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