European Union Legislation and Procurement Reform (Scotland) Act 2014: reference pack

14. Governance

Retention of Copies of Concluded Contracts

Contracting authorities are required to keep copies of all concluded contracts with a value equal to or greater than £785,530 for supply and service contracts and £7,855,300 for works, for at least the duration of the contracts.

Reporting and Documentation Requirements

For every contract, framework agreement or dynamic purchasing system established under the Public Contracts (Scotland) Regulations 2015, public bodies must draw up a written report which must include at least the following:

a) the name and address of the public body, the subject-matter and value of the contract, framework agreement or dynamic purchasing system;

b) where applicable, the results of the qualitative selection and/or reduction of numbers, namely:

i) the names of those suppliers invited to participate in the procurement process and the reasons for the selection;

ii) the names of those participants who were subsequently excluded from bidding or who bid but were not successful and the reasons for their rejection;

c) the reasons for the rejection of tenders found to be abnormally low;

d) the name of the successful tenderer and the reasons why its tender was selected;

e) where known by the contracting authority, the share (if any) of the contract or framework agreement which the successful tenderer intends to subcontract to third parties; and, the names of the main contractor’s subcontractors (if any);

f) for competitive procedures with negotiation and competitive dialogues, the circumstances which justify the use of those procedures;

g) for negotiated procedures without prior publication, the circumstances which justify the use of this procedure;

h) where applicable, the reasons why the contracting authority has decided not to award a contract or framework agreement or to establish a dynamic purchasing system;

i) where applicable, the reasons why means of communication other than electronic means have been used for submission of tenders; and

j) where applicable, conflicts of interests detected and subsequent measures taken.

There is a practical exemption where no reports are required for contracts based on framework agreements, where the frameworks are either concluded with a single economic operator or where all of the terms are fixed in a multi supplier framework agreement.

If a public body has already provided all the information required here, when completing a contract award notice, there is no additional need to draw up a written report.

Public bodies must document the progress of all procurement procedures (whether electronic or not), and must retain sufficient documentation to justify decisions taken in all stages of the procedure:

• Documentation on communications with suppliers;
• Internal deliberations;
• Preparation of the procurement documents, dialogue or negotiation (if any);
• Selection and award of the contract.

This documentation must be kept for at least three years from the date of award of the contract and the report must be communicated to the Commission (or competent authorities, bodies or structures where they so request).

Public bodies may be required by the European Commission to send it a copy of any such report. Scottish Ministers must, by 18 April 2017, and every 3 years thereafter, provide the European Commission with a report addressing compliance with the EU procurement legislation, frequent sources of wrong application or legal uncertainty, the level of SME involvement and on the prevention detection and reporting of fraud, corruption, conflicts of interest and other serious irregularities.

Under the Public Contracts (Scotland) Regulations 2015, public bodies must provide Ministers with such information as Ministers ask for to meet their obligations to the Commission.

QUIZ

Question 24

For which of the following must public bodies draw up a written report as required under the Public Contracts (Scotland) Regulations 2015? (Please select one answer):

a) Contracts, framework agreements (except where the framework agreement is with a single supplier) and Dynamic purchasing systems

b) Call offs under a framework agreement or dynamic purchasing system established in accordance with the legislation.