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

6. Technical Specifications

Technical specifications used in tender documents must afford equal access to tenderers and not create unjustifiable barriers to the opening up of public procurement to competition.

The characteristics required in a technical specification may also refer to the way in which the goods, works or services are to be made or provided. These characteristics may even refer to another stage in the life cycle of these goods, works or services, even if this does not form part of their material substance (provided that they are linked to the subject matter of the contract and are proportionate to its value and its objectives). This could be the fuel economy of a generator or the energy rating of a laptop. Both of these measures are potentially relevant in a procurement exercise but they do not form a part of the generator or the laptop themselves.

Technical specifications may specify if the transfer of intellectual property rights will be required.

Division of contracts into lots

One of the ways in which public procurement can encourage SMEs to bid for contracts is to split them into smaller contracts or lots.

The Public Contracts (Scotland) Regulations 2015 support this by requiring that buyers consider splitting their contracts into lots. The Regulations do not include any obligation to award contracts in the form of separate lots. In addition, there are now further questions relating to “Information about lots” on the contract notice form. If they do not split their contracts into lots, they are required to state their reasons. This explanation must be set out either in the procurement documents or in an individual report required for the contract procedure.

In addition, where more than one lot may be awarded to the same tenderer, public bodies may award contracts combining several or all lots, provided that they have specified that they reserve the right to do so and indicate the groups of lots that may be combined.

Division of contracts into lots is consistent with the sustainable procurement duty (in the Act), which requires public bodies to consider how they can facilitate SME access to public contracts. Buyers should think carefully about how their evaluation matrixes will be able to account for all scenarios.

Reliance on the Capacities of Other Entities

In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, the Public Contracts (Scotland) Regulations 2015 permit public bodies to require that certain critical tasks be performed directly by the tenderer or where the tenderer is a group by a participant of that group. These critical tasks might, for instance, be where the contract requires care for a vulnerable group, the handling of sensitive information or dangerous material, etc.

Where a contract requires the handling of sensitive information or dangerous material, the public body can require that critical tasks must be performed by an economic operator(s) with the requisite capability and capacity.

QUIZ

Question 7

Are preliminary market consultations allowed where a procurement is within the scope of the new Public Contracts (Scotland) Regulations 2015?

a) Yes

b) No.

Question 8

Technical specifications used in tenders… (Select one that does not apply):

a) Must afford equal access to tenderers

b) May refer to the way the goods, works or services are made or provided

c) Must refer to specific brands or sources

d) Must be proportionate to its value and intended objectives

e) Must link to the subject matter of the contract

f) May refer to other life cycle stages even if this does not form part of the material substance.

Question 9

Must EU Regulated procurements always be split into Lots?

a) Yes

b) No.