Changes to the Public Procurement Rules in Scotland Consultation - Analysis of the Responses

Conclusions

On the whole, the response to the consultation was very positive, with the majority of respondents agreeing with the proposals put forward in the consultation document.

The consultation contained a large number of very specific questions and not all respondents addressed all questions; some commented only on those questions or sections of relevance to their organisation, sector or field of interest.

There was some difference in focus across the different respondent groups. For example:

• Local authorities were keen to ensure no additional bureaucracy or costs would be incurred from any proposals and also wanted the option of local arrangements to allow them to meet the needs of their own areas.
• NHS bodies, in particular, were keen to see procedural guidance put in place, particularly to ensure consistency across areas and bodies.
• Many third sector and union respondents commented on payment of the Living Wage, with several also voicing their opposition to zero hours contracts and the need for public procurement to be used to ensure the fair treatment of workers. These groups also focussed on the need to use public procurement to tackle tax evasion or avoidance and other breaches. The need for uncomplicated rules and contracts were also important to respondents in the third sector / equality group as was ensuring that service users are consulted and their needs considered.
• Private companies, as well as others, wanted to ensure fairness and equity of treatment. The need to ensure that no additional burdens are placed on bidders (short timescales, costs or additional bureaucracy for example) also featured in responses from this group.

While, on average, around two-thirds of the total number of respondents gave an answer at each question, one question in particular attracted widespread interest. This related to whether contracts should be awarded on the basis of price or cost alone and was answered by 115 out of the 140 respondents. A large majority felt that contracts should not be awarded on the basis of price or cost alone, although a sizeable number felt they should. This was largely due to a split in opinion amongst local authorities where slightly more felt contracts should not be awarded on the basis of cost or price and were more likely to advocate using existing systems, processes and structures than introducing new ones.

There were very few areas where large numbers disagreed with the proposal or position put forward in the consultation document.

• The definition of a "disadvantaged person" prompted mixed reactions (although more agreed than disagreed with the definition proposed) and was widely considered to be very broad. Its broadness was felt to have both benefits and drawbacks. While all union and representative bodies for private sector respondents who addressed this question agreed with the definition proposed, other groups showed mixed opinions. More local authority and executive agency / NDPB respondents disagreed than agreed with the proposed definition.
• There was also some difference of opinion as to whether a public body should be allowed not to exclude a business with disqualifying criminal convictions, or which has breached its obligations to pay tax or social security, in exceptional circumstances. While more said 'yes' a public body should be allowed not to exclude, in some respondent groups more said 'no' than said 'yes'. These included NHS respondents, representative bodies for third sector / equality and for private sector organisations and unions. Those who supported the proposal commented on the need for flexibility and proportionality. Many of those who opposed the proposal said that they could not envisage any circumstances that would make this option necessary.
• There was also a difference in opinion as to whether the rules in the Directives about modifying contracts should not apply to contracts under the Act. While more felt agreed that they should not, a sizeable number said they should. Those who felt they should not, included many executive agencies / NDPBs and statutory organisations with comments that applying the rule to lower value contracts would increase the burden on organisations. More local authorities said that they should apply; one main reason was the need for consistency.
• There were mixed views as to whether a review body should be established as a tribunal within the Scottish tribunals system. And, in addition, there were mixed views as to whether a review body should take the form of a Tribunal, although more supported this type of body than supported a Scottish Procurement Ombudsman. Many of those respondents who did support a Scottish Procurement Ombudsman were from the private sector.

The main themes to emerge, across respondent groups and at the majority of the question areas, were the need for consistency, proportionality and transparency.

While most respondents supported allowing public bodies some flexibility or discretion they also stressed that this would need to be accompanied by clear guidance so that this discretion is applied consistently and fairly.

Respondents also stressed the need for clear guidance to ensure that public bodies did not become liable to legal challenges because of decisions made under the new rules.