The Procurement responsibility for Registers of Scotland (RoS) is carried out by the Head of Procurement, reporting to the Head of Procurement and Estates.

It is RoS policy that goods, services, and works must be bought by genuine and effective competition. A Non-Competitive Action (NCA) is only granted in exceptional circumstances. It is limited to situations where competition is not deemed appropriate.

RoS Procurement must be consulted about any proposal to award a contract without competition before using the application for NCA form.

For NCA procurements between £0 - £10,000 (excluding VAT), the Head of Procurement & Estates approval must be obtained in advance and logged on the Procurement Register.

All requests to proceed with an NCA for procurements over £10,000 must be approved in advance by RoS Accountable Officer.

Any NCA over the value of £50,000 (inc VAT) approved the RoS Accountable Officer must be accompanied by a Voluntary Ex-Ante Transparency (VEAT) Notice. The Procurement team member dealing with your request must complete a VEAT notice prior to the award of any contract. Once the notice is published, we must observe a 10 day “standstill” period before awarding the contract.

Approval to award a contract using the NCA process does not guarantee it will be free of challenge.

A challenge can take many forms, for example, a complaint from another supplier to Scottish Ministers that they have been denied an opportunity to bid for the contract, a legal challenge in the Courts. For these reasons, it is important that objective, supporting evidence is provided as part of the request for NCA.

Authorisation must be given by Procurement prior to any commitment being given to a supplier.

The following Frequently Asked Questions and answers have been put together to provide information about NCA and the process of obtaining approval to use this procedure. These should be read prior to any NCA request being submitted.

If you would like further information about NCA, please contact the Procurement Department on x3800 or email ProcurementHelpdesk@ros.gov.uk.

Frequently Asked Questions

1. What situations will justify the award of a contract without competition?

There is no single checklist of situations or factors to be considered. The decision whether to approve a NCA request will need to be made on a case-by-case basis. Justification for the award of a contract without competition could fall under the following categories: -

• For work of exceptional urgency caused by unforeseeable circumstances where competitive tendering would cause unacceptable delay (e.g., after critical equipment breakdown, storm, fire, etc.).

NOTE: Insufficient organisational planning (e.g., requirement to spend funds within a particular financial year) cannot be considered as acceptable justification.

• The proposed supplier has, by recent experience (within the last 12 months), proved to offer best value for money as the result of a fully compliant, competitive procurement exercise. Further competition would be highly likely to produce the same outcome.
• The proposed supplier is the only one known to provide the goods and/or services required e.g., OEM (adequate research must have been carried out to demonstrate that this is the case) and there are no satisfactory alternatives.
• Where Intellectual Property Rights are an issue, e.g., bespoke designs, some research programmes, software. However, it is essential that procedures are in place to ensure value for money.

Note: This does not include situations where there is an extreme urgency to award a contract on the basis that the customer was aware of the requirement but has failed to factor sufficient time into their workflow/work planning to allow a genuine and effective competition to be undertaken.

2. Which situations will not justify the award of a contract without competition?

These may include:

• Contract is about to end but there is an ongoing requirement - it is important that you take account of future needs at the earliest opportunity as a failure to plan for future requirements will not support the approval of NCA.
• There is not sufficient time to conduct a competition - this will not support the approval of NCA. The time taken to run a competitive process will reflect the value, nature, and complexity of the purchase.
• I am under pressure to award this contract quickly - unless the pressure has arisen through an urgent unforeseeable situation then you will need to award the contract following a genuine and effective competition.
• I have used this supplier before and like what they can do - Registers of Scotland policy requires that contracts be awarded through a genuine and effective competition. In the absence of a competition, it may be difficult to demonstrate VFM.
• I have been approached by a supplier and like their idea - any such approach will not result in the supplier simply being awarded a contract on a non-competitive basis. If the proposal is consistent with the business need, that need must be met by running a genuine and effective competition.

3. Who has authority to approve a NCA request?

The Head of Procurement has authority to dispense with competition to allow a contract to be awarded following a process that does not contain a genuine and effective competition for contracts of up to £10,000 excluding VAT. All NCA requests above £10,000 can only be approved by The Keeper and Deputy Keeper (Accountable Officer) at Registers of Scotland. NCA authority is not financial or purchasing authority.

5. What is the process to obtain NCA approval?

You need to fully complete the Application for Non-Competitive Action form and submit it by email with any supporting documentation to the Head of Procurement

6. What happens with my request?

The NCA approver will decide (using their commercial judgement) whether to authorise the request to proceed without competition. To reach a decision, they will consider the Non-Competitive Action application form that you have completed, including your justification for NCA and consider this against the need to comply with Registers of Scotland and Scottish Government procurement policy.

7. What happens if my request is not approved?

If you cannot demonstrate that there are objective and justifiable grounds to support NCA then competition will be necessary. The level of competition will depend on the value, nature, and complexity of the purchase.

8. Can NCA approval carry risks?

Yes. Approval to award a contract using the NCA process does not guarantee that this will be free of challenge. A challenge can take many forms, for example, a complaint from another supplier to Scottish Ministers that they have been denied an opportunity to bid for the contract, a legal challenge in the Courts or raising the matter with the European Commission. For this reason, it is important that objective, supporting evidence is provided as part of the request for NCA.

9. Where do I find a copy of the NCA form to complete?

Please contact the Procurement Team via the helpdesk, procurementhelpdesk@ros.gov.uk for a copy of the latest NCA form.