Public procurement in Scotland: overview
A Q&A guide to public procurement law in Scotland.
The country-specific Q&A gives a high level overview of applicable legislation, scope of rules, procurement procedures and enforcement, recent trends and proposals for reform. In particular, it examines entities and contracts covered, concessions, privatisations and PPPs, contract award criteria, alternative bids, and changes to an existing contract.
This Q&A is part of the multi-jurisdictional guide to public procurement. For a full list of jurisdictional Public Procurement Q&As visit www.practicallaw.com/publicprocurement-mjg.
The principal public procurement legislation comprises the following regulations, that implement the corresponding EU directives into national law:
Public Contracts (Scotland) Regulations 2012 (PCSR), implementing Directive 2004/18/EC on the co-ordination of procedures for awarding public works, supply and service contracts (Consolidated Public Sector Directive).
Utilities Contracts (Scotland) Regulations (UCSR), implementing Directive 2004/17/EC co-ordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (Utilities Directive).
The Scottish Ministers intend to consult on the regulations to implement the new EU procurement directives (Directive 2014/24/EU repealing Directive 2004/18/EC and Directive 2014/25/EU repealing Directive 2004/17/EC) in the summer of 2014, with a view to those regulations coming into force in 2015.
A trend of increased public procurement litigation has been evident in recent years and continued over the past 12 months. During that time around ten cases in Scotland were the subject of court decisions for which written judgements were issued by the court.
Another continued trend is that there are many more challenges raised against authorities and utilities that are resolved without recourse to litigation. For each litigation brought there are ten or so other disputes that reach an advanced stage of formal legal exchanges between the authority and challenger, but do not result in litigation.
The most common issues that arose in this litigation included:
Clarity and transparency.
Automatic suspension. An automatic suspension on the award of the contract comes into effect when proceedings are served by the challenger. Most of the challenges that resulted in published decisions considered an authority's application to lift this suspension. The merits and strengths of a challenger's case are relevant factors in the court's decision on whether or not to lift the automatic suspension.
The court must consider whether the negative consequences of lifting suspension are likely to outweigh the benefits. In reaching that consideration the court must have regard to the:
Need for decisions of the authority to be reviewed effectively and rapidly.
Probable consequences of lifting the suspension for all interests likely to be harmed.
Automatic suspension hearings are heard on an interim and urgent basis. They typically last less than one day and are not the outcome of a fully argued proof or legal debate.
In Scotland there has not been a case to date that considered an application for a declaration of ineffectiveness (that is, where a procurement contract is set-aside).
Clarity and transparency. Clarity and transparency are needed in communications between authorities and bidders. This need is evident, for example, in relation to the scrutiny applied to the letters sent by authorities to losing bidders with debrief information to begin the standstill period. It is also evident in relation to the pre-litigation "letter before action" sent by a challenger to an authority. Courts are unwilling to allow parties to make arguments during litigation that were not first raised in the letter before action.
Currently, there is a bill on transparency going through the legislative process of the Scottish Parliament (Procurement Reform Bill). If that becomes law it is expected that the principal impacts on transparency will be an obligation on authorities to:
Advertise opportunities that are not fully regulated (due to their value not exceeding the EU thresholds).
Use a single Scottish web-based portal for advertising both above and below-threshold opportunities.
Use of procurement procedures
For fully regulated procurements that are straightforward, the authorities in Scotland prefer the open procedure to the restricted procedure. For procurements that are complex, competitive dialogue is more commonly used. A statistical review (conducted by the authors) found that authorities used the negotiated procedure with a notice more often than the competitive dialogue procedure.
The authors also conducted a statistical review of all contract notices (that is, contract adverts) published in the Official Journal of the European Union (OJEU). The geographical code used was Scotland. The period taken was the 12-month period to and including February 2014.
From this sample of about 850 notices, the following trends occurred (with some rounding):
Negotiated: 4% (31 contract notices).
Competitive dialogue: 1% (ten contract notices).
A review of the 12-month period to and including September 2013 discloses a broadly similar split. The data did not support a meaningful analysis on use of the negotiated procedure without a notice.
There have been no cases resulting in a published decision that have involved a successful challenge to the choice of a procedure by an authority. However, a challenge against the Scottish Ministers currently in process in the Court of Session (higher civil court) is likely to consider whether the Scottish Ministers' use of the negotiated procedure without a notice was justified on the basis of urgency. The procurement concerned the purchase of road salt to deal with particularly harsh winter conditions in recent years.
Breaches of the procurement regulations can be dealt with in either the:
Sheriff Court, which is the lower civil court in Scotland.
Court of Session.
The Court of Session is the usual choice.
Under proposed legislation currently going through Scottish Parliament (the Civil Courts Bill), the Sheriff Court will be given exclusive jurisdiction for cases with a value of less than GB£150,000. If this becomes law in its current form, it means that procurement actions with a value below this threshold must be raised in the Sheriff Court.
Procurement law challenges can be made through judicial review of the decision-making by an authority. The Court of Session has exclusive jurisdiction to consider these applications. The Civil Courts Bill does not contain proposals to change this.
The Scottish Government established a division called the Single Point of Enquiry, which is an independent, impartial and confidential service for suppliers to the public sector in Scotland. It offers advice on procurement rules and information on how contracts are advertised and awarded. The website address for the service is: www.scotland.gov.uk/Topics/Government/Procurement/Selling/supplier-enquiries.
It also works with parties to resolve concerns about specific tender exercises. However, it has no formal powers to investigate or change public procurement decisions, or award remedies.
There is no requirement for aggrieved parties to seek review with the awarding body first. For challengers who seek a review with the awarding body, the short timescales to challenge a procurement decision (see Question 9) limit the effective opportunity for a detailed review process between the bidder and authority.
The awarding body must be notified before starting proceedings. Proceedings cannot be brought unless the challenger:
Informed the contracting authority of the breach or anticipated breach of procurement law letter before action.
Intends to raise proceedings.
The form and content of these letters before action was the subject of litigation in Scotland in the past 12 months (see Question 2). The two key issues from these published decisions are that:
The requisite notification can come through a course of correspondence, with no requirement for a single and comprehensive notification.
The requirement for a letter is a strict one. Courts are willing to rule out arguments that are presented during litigation that were not first included in the letter before action (or during the course of correspondence).
Any legal or natural person can bring court proceedings if they:
Are an economic operator, that is, a contractor, a supplier or a services' provider.
Sought, seek or would have wished to be awarded the contract.
Suffer or risk suffering loss or damage as a result of the breach of the procurement rules.
All remedies are available to economic operators who are established in an EU member state. More limited remedies are available to economic operators who are established in a state that is a signatory to the multilateral Government Procurement Agreement. More limited still remedies are available to economic operators regardless of their place of establishment. The interplay between these rules are complex, involving an assessment of both the subject matter of the contract and the precise regulation in respect of which the breach is alleged.
A procurement challenge must be brought within 30 days of the date on which the applicant first knew or ought to have known that grounds for starting proceedings existed (regulation 47, PCSR). However, the court can extend this time limit by up to three months from that date, if it is satisfied that there is good reason to do so.
Different limitation periods apply to challenges seeking an ineffectiveness order.
The time limit is 30 days from the date of the relevant notice if the authority either:
Published a contract award notice in the OJEU.
Sent written notice of the outcome to any other participants in the process. If there is no such notice, the time limit is six months from the date the contract was entered into.
(The equivalent limitation provisions in UCSR are in regulation 44.)
Both sets of regulations (PCSR and UCSR) include a "standstill period". This is the period between the time the authority indicates the decision to award the contract to losing bidders and the time that contract is entered into. The standstill period is ten days (subject to some specific counting rules) and operates as the time limit for certain types of challenge. After the contract is awarded (which can happen at any time after the end of the standstill period) the regulations allow a court to award damages only (that is, ruling out remedies allowing the contractor to seek to secure the contract).
A procurement challenge can be made through either:
Judicial review of an authority's decision-making. No statute of limitation applies to these applications. However, the authority can delay bringing an application as a legal defence.
A contractual claim for breach of an express or implied contract relating to the conduct of the procurement process between the authority and the bidder. There is no legal authority on this in Scotland. However, it is possible for a challenger to argue that the normal rules of prescription (limitation) apply. This means that such a claim can survive for five years from the date the contractual obligation becomes enforceable. This is the normal prescriptive period for contractual claims under the Prescription and Limitation (Scotland) Act 1973.
Remedies are available to an aggrieved contractor before or after a contract is awarded.
Before a contract is awarded. A court can at any time:
Suspend, on an interim basis:
implementation of any authority decision.
Set aside any authority decision or action.
Order the authority to amend any document, that can include removing any discriminatory specification or criteria.
Award damages to the challenger for loss or damage caused by the breach.
The regulations provide that this is a non-exhaustive list.
After a contract is awarded. A court can only:
Award damages to the challenger for loss or damage caused by the breach.
Make an ineffectiveness order (setting aside the contract), but only if the following strict criteria are satisfied:
there has been a direct award, that is, a contract that should have been advertised and the subject of a regulated procurement but was not;
the authority did not respect the standstill period, which prevented the challenger from raising proceedings prior to award (there must also be some underlying substantive and relevant breach);
the contract was awarded under a framework or dynamic purchasing system, but not in accordance with the rules for using these types of arrangement (these arrangements allow awarding multiple contracts under one full OJEU procedure). In this category, ineffectiveness is only available if both the contract was above the relevant OJEU financial threshold and the authority did not elect to do an equivalent to standstill.
If an ineffectiveness order is made, the court must also impose a financial penalty on the authority. The amount is at the court's discretion. The penalty is paid to the general treasury budget available to the Scottish Ministers, not the challenger.
If the court is asked to consider the second category of ineffectiveness (see above) and finds that the authority did not respect standstill and the other cumulative criteria are not met, it must either:
Impose a financial penalty.
Shorten the duration of the contract.
There is no criminal sanction for a breach of procurement law alone. However, criminal sanctions exist if there is other criminal activity involved (for example, fraud or bribery).
There is no requirement under procurement law to publish completed tender and contractual documentation. Some authorities elect to publish copies of the contracts they have entered into (on an edited or un-edited basis).
Completed tender and contractual documentation can be required to be disclosed under the Freedom of Information (Scotland) Act 2002 or the Environmental Information (Scotland) Regulations 2004. The requirement to disclose is subject to various exemptions that authorities can apply, including exemptions relating to confidentiality and commercial sensitivity.
The Procurement Reform (Scotland) Bill is currently progressing through the Scottish Parliament. If this bill becomes law it will mandate that each authority keeps and maintains a contracts' register. The register will contain details of all contracts awarded in regulated procurements. The following details, among others, will be included in the register:
Name of the contractor.
Estimated value of the contract.
Contracts outside the scope of the Consolidated Public Sector Directive
Awarded procurement contracts that are fully or partly outside the scope of the Consolidated Public Sector Directive are not regulated under national legislation. However, these procurements can be challenged by judicial review or on a contractual basis (see Question 9).
Scottish courts can also enforce the EU principles of transparency and non-discrimination in a challenge where there is an EU dimension even if the directive is not implemented.
If the Procurement Reform (Scotland) Bill becomes law it will create a legislative basis to regulate the award of contracts with values lower than those applicable to the EU directives. The current proposals are GB£50,000 for supplies and services contracts, and GB£2 million for works contracts.
Contractual remedies or judicial review remedies may be available (see Question 9).
Judicial review remedies tend to be available when the challenge is directed at an authority's general decision-making, rather than compliance with the procedural steps regulated by the PCSR and the OCSR.
Contractual remedies tend to be sought in addition to a regulatory claim, or as a last resort alternative if a regulatory claim is not possible due to statute of limitation issues.
Implementation of EU reforms
Description. This is the official Scottish Government website, which includes the text of legislation.
Scottish Courts Service
Description. This is the official Scottish Courts Service website with published decisions of the Scottish courts.
Roger Cotton, Partner and Head of Procurement
Professional qualifications. Scotland, Solicitor, 2000; Scotland, accredited specialist in public procurement law
Areas of practice. Procurement; state aid; transport; commercial services.
Acting for Aberdeen City Council on the GB£200 million competitive dialogue procurement of a new conference centre.
Advising developers and funders on de-risking procurement law on property transactions with public sector.
Commissioned by the Scottish Futures Trust to write a report on overcoming procurement law barriers to promoting successful district heating schemes.
Advising Abellio on its bid for the Scotrail franchise.
Professional associations/memberships. Scottish Parliament Business Exchange board member; Procurement Lawyer's Association.