Some preliminary comments on the Public Contracts (Scotland) Regulations 2015

I have given a quick look to both the new Public Contracts (Scotland) Regulations 2015 and the accompanying Policy Note from the Scottish Government. At first sight, the differences between the Scottish Regs and the Public Contracts Regulations 2015 are smaller than I originally anticipated them to be. Having said that:

1. No contracts can be reserved for third sector organisations in Scotland

This is probably one of the most surprising distinctions between the two sets of Regulations. I did not expect Scotland to zig where England and Wales zagged with the transposition of Article 74ss. 

I do agree with this decision as the set aside regime of Article 74 is a slippery slope but the arguments provided by the Scottish Government that "this can seldom occur in real life" do not appear to be the strongest. In fact, I am of the opinion that they are dangerous precisely because there is the risk that it will be quite easy to make common and tilt the playing field in favour of specific suppliers.

I addressed this briefly on a paper that is coming on the next number of the EPPPL. You can find an ungated copy of that paper here

2. No full ESPD system until October 2018

Although the Scottish Government claims in the Policy Note that some of the changes introduced by the new Regulations will make life easier for SMEs, it is a shame that it was not consistent in its drive to reduce transaction costs for economic operators. As such, it is delaying the mandatory use of ESPD and the restriction on contracting authorities requesting information from economic operators until late 2018.

3. Living wage may be required from economic operators

Granted, this requirement is not set in the Public Contracts (Scotland) Regulations 2015I, but is spelt out as statutory guidance. I think this will be an interesting battleground for social policies in the coming years and Scotland is charging head on 

4. There will be a "sustainable procurement duty"

I am not even entirely sure of what this will entail, but it is apparently connected with Community Benefits policy which will become mandatory from June 1st onwards. However, there is no mention to either concept on the new Public Contracts (Scotland) Regulation 2015 so I suspect (and need to confirm) that the Policy Note is referring to an obligation included in the Procurement Reform (Scotland) Act 2014 which will now come into force.

5. Last but not least...Why not merging the Procurement Reform (Scotland) Act 2014 into the new Public Contracts (Scotland) Regulation 2015?

I am quite puzzled that the Scottish Government would pass on the opportunity to have all the public procurement legal framework in a single act, as was done for England and Wales ("statutory guidances" notwithstanding). It makes sense from a systematic perspective to have all regulation in the same place, instead of passing on the cost of compliance with scattered legislation to the market and the contracting authorities.

I could understand the separation in case they covered different contracts - but they do not. As far as I can tell and according to Regulation 3 of the Procurement Reform (Scotland) Act 2014, all contracts above £50,000 (goods and services) and £2,000,000 (works) are covered. Therefore, the Scottish legal regime applicable to contracts covered by Directive 2014/24/EU is to be found on the two sets of Regulations. 

As for the compatibility of certain provisions of the Procurement Reform (Scotland) Act 2014 (yes, community benefits, I am looking at you) with EU law, that remains to be seen. I find it puzzling (or not) that neither community benefits nor the living wage requirements are mentioned at all in the new Public Contracts (Scotland) Regulations 2015...