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

15. Information and Remedies

Informing Bidders

A public body, must as soon as possible after the decision has been made, inform all bidders in writing, of its decision to award a contract. This is commonly known as a standstill letter.

The public body must provide the following information:

a) the criteria for the award of the contract;

b) where practicable, the score obtained by the bidder;

c) the name of and, where practicable, the score obtained by the winning bidder; and

d) a precise statement of the effect of the standstill period on the bidder.

Additionally, in the case of an unsuccessful bidder:

a) a summary of the reasons why it was unsuccessful;

b) the characteristics and relative advantages of the successful bid;

c) (if applicable) a summary of the reasons why a supplier was excluded, if this has not previously been explained.

Informing Bidders – Concession Contracts (Scotland) Regulations 2016

This is similar to the Public Contracts (Scotland) Regulations 2015 in that it requires the public body to inform the bidders of any significant developments in the procurement process without delay.

The requirement to respond to written requests for further information is similar to the Public Contracts (Scotland) Regulations 2015, although it is slightly less prescriptive as the Concessions Contracts (Scotland) Regulations 2016 have a narrower scope.

The important requirements of the grounds for any decision to reject the bidder should still be provided, as well as the important requirement where a bidder has provided an admissible tender of the characteristics and relative advantages of the tender selected.

A public body must within 15 days of receiving a request in writing from any unsuccessful bidder inform it of:

a) the precise reasons why it was unsuccessful (this goes further than the requirement to provide a summary of these reasons in the standstill letter);

b) the characteristic and relative advantages of the successful tender as well as the name of the successful bidder (if the business in question has not already received this information in a standstill notice).

Where applicable, the public body must include any reason for its decision that the bidder did not meet the technical specification, either in terms of an “or equivalent” offering by the bidder or where the bidder did not address the performance or functional requirements laid down by the public body.

The need to notify bidders does not apply where:

a) the only bidder is the one to be awarded the contract;

b) the contract is a call off contract under a framework agreement or under a dynamic purchasing system.

A public body must within 15 days of the date on which it receives a request in writing from any unsuccessful bidder inform it of:

a) the reasons why it was unsuccessful;

b) the characteristics and relative advantages of the successful tender as well as the name of the successful bidder.

A public body is also required to provide the successful bidder with a description of any improvements the public body considers the bidder could have made to its bid, within 15 days of such a request.

Giving of Reasons to Unsuccessful Participants in Reform Act Regime procurements

The Reform Act extends the provision of debriefing (but not the standstill period and standstill letter requirements) to contracts below the EU Regime which are within its scope.

These provisions require that public bodies notify any supplier who participated, of their decision to exclude.

A supplier who was excluded must be given the names of the suppliers who have not been so excluded, the criteria used to exclude the supplier in question and the public body’s scoring (if any), against those criteria.

Public bodies must inform a supplier:

• as soon as reasonably practicable when they are excluded from a procurement process,
• as soon as reasonably practicable of a decision to award a contract.

Unsuccessful suppliers must be given specific information which will enable them to improve their future tenders, this includes:

• The name of the successful tenderer,
• The criteria used to award the contract,
• The public body’s scoring, against those criteria, of the unsuccessful tenderer and

the successful tenderer.

Just as with EU Regime procurements, public bodies can withhold information if they consider that disclosure would: impede law enforcement or otherwise be contrary to the public interest; prejudice the commercial interests of any person or prejudice fair competition between suppliers.

Further information and withholding information

Reform Act Regime procurements

Any unsuccessful or successful bidders have the right to request further information in relation to a Reform Act regime procurement other than an EU Regime procurement.

Within 30 days of receiving a request for information, public bodies must provide a written summary of the reasons:

• in the case of a public body excluded from the participating in the procurement process, a summary of the reasons why the bidder was excluded;
• in the case of an unsuccessful bidder;

i) a summary of the reasons why the bidder was unsuccessful, and

ii) the characteristics and relative advantages of the successful bidder.

• in the case of the successful bidder, a description of any improvements the public body considers the bidder could have made to its bid.

Public bodies may withhold information if they consider that disclosure would: impede law enforcement or otherwise be contrary to the public interest; prejudice the commercial interests of any person or prejudice fair competition between bidders.

Remedies

Where a public body has failed in its obligation (in terms of the duty which it owes to a supplier), then the supplier may take action against the public body in either the Sheriff Court or the Court of Session where they have suffered or risks suffering, loss or damage.

Single Point of Enquiry ( SPoE)

In addition to the legal remedies, the Single Point of Enquiry ( SPoE) is an informal service which can help provide information, advice or act as an intermediary between a supplier and a public body, but has no formal powers to investigate any concerns or change the decisions made by another public body.

Court of Justice to the European Union ( CJEU)

The Court of Justice permits the individuals, companies or organisations to bring cases before the court if they feel their rights have been infringed by an EU institution.

Procurement Reform (Scotland) Act 2014

Actionable Duties

For contracts with a value above the threshold for the Act and below the relevant EU threshold, proceedings (legal challenge) may be brought against a public body.

Proceedings can be raised by a supplier:

• interested in winning the contract (including a supplier who may not have participated in the procurement process), and
• who suffers, or risks suffering, a loss or damage as a result of the alleged breach by the public body.

For these purposes, a supplier not only includes a supplier established in a Member State of the European Union, but also suppliers established in Iceland, Liechtenstein and Norway.

The relevant person must also bring proceedings within 30 days beginning with the day on which the relevant person knew or ought to have known (disclosure or discovery) that grounds for beginning the proceedings had arisen; or up to three months at the courts discretion and possibly even longer if the court considers that there is good reason for doing so.

Court proceedings can only be brought if the supplier has notified the public body of the alleged breach, and its intention to raise a legal challenge.

Court proceedings can only be brought in respect of breaches of some, not all, sections of the Act. Those sections of the Act which allow for a legal challenge to be raised are:

• General Duties
• Publication of contract notices and award notices
• Mandatory exclusion of a bidder (on grounds of criminal activity)
• Selection of bidders to submit a bid
• Guidance on selection of bidders and award of contracts
• Technical specifications
• Charging a fee to participate in a procurement exercise
• Giving of reasons to unsuccessful bidders
• Providing debrief information

Determination by the Court

A court may, by interim order suspend the procedure leading to the award of a public contract, or the implementation of any decision or action taken by a public body in relation to that procedure.

In deciding whether to grant this interim order, the court must decide whether the negative consequences of this order, are likely to outweigh the benefits taking into account:

• the decisions taken by the public body;
• the consequences of an interim order for all interests likely to be harmed; and
• the public interest.

If the court finds that the public body was in breach of their duties under the Reform Act (prior to entering into a contract) then they may order the setting aside of that decision or action; order the public body to amend any document or award damages.

The only remedy available once the contract has been awarded is to award damages.

Please note that for procurements equal to or above the Reform Act thresholds and below the OJEU advertising thresholds there is no requirement for a standstill period or ineffectiveness remedy.

QUIZ

Question 25

Where regulated procurements apply between the Procurement Reform (Scotland) Act 2014 and OJEU advertising thresholds a Court may, as a result of legal proceedings brought against the public body… (select all answers that apply):

a) Suspend the procedure leading to award of a public contract if in the public interest

b) Set aside a public body’s decision or action if it finds the body to be in breach of duties under the Procurement Reform (Scotland) Act 2014

c) Order where relevant the public body to amend any document

d) Where relevant, a Court order of contract effectiveness

e) Award damages.

QUIZ ANSWERS

Question	Answer	Explanation
1.	B	Contracting authorities must apply the new legislation to any procurement which commences on or after the date that the new Regulations enter into force, which is the 18 th April 2016.
2.	B	A concession contractor is permitted to run and exploit the work or service for financial gain while accepting risks of potential loss on their investment.)
3.	A, B, C, D, E, F	The Reform Act introduces the requirement for a Contracts Register, the Sustainable Procurement Duty, a requirement for a Procurement Strategy and Annual Report and specific duties relating to advertising of contract opportunities, Community Benefit consideration and a prohibition on charging a supplier a fee for participating in any part of a procurement process.
4.	C	Any EU, concessions or Procurement Reform Act regulated procurement may be reserved for supported businesses where at least 30% of the workforce is disadvantaged or disabled.
5.	A, B, D, E	A ‘regulated contract’ under the Procurement Reform (Scotland) Act is: A public contract which is not an excluded contract, and which equals or exceeds £50,000 (supplies and services) or equals or exceeds £2,000,000 (works).
6.	D	Where a procurement consists of two or more of works, supplies or a service you should follow the Regulations which characterise the main element of the contract.
7.	A	Public Bodies may conduct market consultations (for example through PIN’s, bidder days and webinars) with a view to preparing the procurement and informing economic operators of their plans and requirements, as long as this ensures the equal treatment of suppliers and does not distort competition.
8.	C	Technical Specifications: must afford equal access to tenderers; may refer to the way the goods, works or services are made or provided; may refer to other life cycle stages even if this does not form part of the material substance; must link to the subject matter of the contract; must be proportionate to its value and intended objectives. You must not set out technical specifications which refer to specific brands, sources or terms which refer to the specific origin or to a particular process or means of production, trademarks, patents or types that have the effect of favouring or discriminating against a potential supplier. The only exception is if you can justify due to the subject matter of the contract or you cannot otherwise describe the requirement by reference to technical specifications that are sufficiently precise and intelligible to all tenderers. Where you cannot avoid referring to a particular make or source you must always qualify by adding ‘or equivalent’.
9.	B	The Public Contracts (Scotland) Regulations 2015 supports the encouragement of SMEs bidding for contracts by splitting into lots, but public bodies may decide not to, as long as relevant reasons are set out in the procurement documents. While there are no obligations to split contracts into lots it is important that public bodies give careful consideration to doing so in order to help facilitate SME access in accordance with the sustainable procurement duty.
10.	B, C	A public body may directly award a contract for health and social services where the value is below the EU advertising threshold for light touch regime contracts which is £589,148. EU procurement legislation states that contracts below this threshold will not typically be of interest to providers from other Member States, unless there are concrete indications to the contrary, public bodies should still, however, consider whether there is any cross border interest prior to contract award. Equally, they could choose to compete a contract of the value.
11.	A	Despite many of the provisions of the Reform Act applying to framework agreements, those listed do not apply to their call off contracts.
12.	D	The bodies have joint responsibility where the procurement is carried out in its entirety jointly and in joint names, irrespective of who manages the procedure.
13.	A	A competitive dialogue procedure requires the procurer to identify the need, without prescribing the nature, characteristics or solutions to be offered. It is possible that CPN may overlap with competitive dialogue. However, the CPN does require the development of a specification of its requirements.
14.	B, C	An innovation partnership may be entered into, in accordance with procurement regulations, to undertake research and development and the body may elect to procure the eventual solutions. Innovation Partnerships are justifiable where required solutions are not currently available on the market. Alternatively, the body may decide to defer the procurement and conduct further research with other public bodies- this may or may not lead to an innovation partnership in due course.
15.	B	Innovation Partnerships may only be used where there is a need for the development of an innovative product, service or works and that the subsequent purchase of these cannot be met by solutions already available on the market.
16.	A, B	The new Regulations expressly allow public bodies to examine tenders before applying the selection stage’s exclusion grounds and criteria. This must be carried out in an impartial and transparent manner to ensure that no contract is awarded to a tenderer who should have been excluded or who does not meet the selection criteria
17.	B, C	The Public Contracts (Scotland) Regulations 2015 now allow sub-central contracting authorities to use PINs as a call for competition in restricted procedures or Competitive Procedures with Negotiation
18.	A, B, C, D	All public bodies who are conducting regulated procurements must publicise on PCS, contract notices and award of a contract or frameworks (award notice) this does not extend to notice of intention to run a call off (results of call offs must be publicised)
19.	A, B, D E	Public bodies may exclude suppliers (for a period or 3 years from the date the event occurred) for a number of reasons which include: breach of environmental, social or labour laws or collective agreements (or others set out in Annex X to Public Contracts Directive 2014), deficiencies in performance of a prior public contract which have been sufficient to result in early termination, damages or comparable sanctions and breaches of social security obligations. A breach of money laundering is a mandatory exclusion ground.
20.	A, B, D	The ESPD is a standard EU form of self-declaration that may be re-used and updated for different procurements and it may be requested from relevant sub-contractors. However, as it is a generic document, procurers will have to add specific requirements into their contract notices and ask the supplier in the ESPD whether or not they have complied with the contract notice.
21.	B	The Public Contracts (Scotland) Regulations 2015 require contracts to be awarded on the basis of the best price/ quality ratio. Contracts must never be awarded on the basis of lowest price or cost only.
22.	A, B, C, D, E	Life cycle costs will depend on the scope and nature of the subject matter of the contract but may include all costs borne by the public body relating to acquisition, costs of use and end of life costs as well as those environmental externalities which may be monetised, such as cost of emissions of greenhouse gas emissions.
23.	B	There are six exceptions applying under the Public Contracts (Scotland) Regulations 2015 to the requirements to undertake a new procurement procedure. These include the requirement that the value of the modification is below both of the following values: a) The relevant threshold; and b) 10% of the initial contract value (service and supply contracts) As the modification to the service contract is more than 10% of the initial contract value and other exceptions do not apply a new procurement procedure is required.
24.	A	Where are framework agreement established in accordance with the Public Contracts (Scotland) Regulations 2015 (with the exception of framework agreements concluded with a single supplier or where all the terms are fixes in a multi-supplier framework agreement) public bodies are not required to compile and retain a report in respect of call offs under the framework agreement.
25.	A, B, C, E	A court may by interim order suspend a procedure leading to award of a public contract if in the public interest; set aside a public body’s decision or action if it finds the body to be in breach of duties under the Reform Act; order where relevant the contracting authority to amend any document or award damages. There is no power under the Reform Act for a Court order of contract ineffectiveness (unlike for Remedies under EU Regulated contracts).

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