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

7. Social and Other Specific Services

Award of Contracts for Social and Other Specific Services

The categorisation of services has changed:

• Some of the services which were previously categorised as Part B now require the full application of the legislation.
• Some of the Part A services which required the full application of the legislation are now be listed under Annex XIV and require the light touch regime to be applied to them when their procurement is equal to or greater than £589,148.

Under the Public Contracts (Scotland) Regulations 2012, services were split into two groups. Part A covered the majority of services and were subject to the Regulations and Part B (most of which can be described as services to the person) for which there were much less stringent requirements.

Under the Public Contracts (Scotland) Regulations 2015, there are services to which the full Regulations will apply and services which, if they are listed in Annex XIV of the “Public Contracts Directive, 2014/24/ EU” and equal to or exceed the £589,148 threshold, must have the “light touch regime” applied to them. Below this threshold the Reform Act applies, unlike for the other services.

Contracts for Health or Social Services

Annex XIV includes some specific health or social services. The Reform Act permits a public body to award a contract for health or social care services without seeking offers in relation to the proposed contract, where the value of the contract is equal to or in excess of £50,000 and below the “light touch” regime threshold which is currently £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, therefore, consider the likelihood of interest being expressed by suppliers established in other Member States when devising a procurement strategy for health or social care contracts. Under the terms of the Reform Act, public bodies may decide to make a direct award (i.e. without competition) for a social care contract valued at less than the ‘light touch’ regime threshold or equally choose to run a competition.

Even where a public body does choose to award a contract without seeking offers, some of the provisions of the Reform Act still apply, including the need to issue a contract award notice.

The statutory guidance, published by Scottish Ministers, provides details on how to apply the rules based on contract value. It also describes how the other services in Annex XIV (i.e. non-health or social services) are handled ^[14] .

Publication of Notices and Principles of Awarding Contracts under the “Light Touch” Regime

A ‘light touch’ regime applies to contracts for health or social services contracts and also to other specific services (as defined in Schedule 3 of the Public Contracts (Scotland) Regulations 2015, where the value of the contract exceeds £598,148 or Schedule 3 of the Concessions Contracts (Scotland) Regulations 2016).

Public bodies who are intending to award such a contract must make their intention known by using a contract notice or prior information notice, and must make known the results of the procurement procedure (in accordance with the principles of procurement) by using a contract award notice as set out in the legislation.

Parts H, I and J of Annex V of the Public Contracts Directive 2014 explain the information requirements for contract notices concerning contracts, PINs or contract award notices for social and other specific services.

Public bodies wishing to award a concession for Social and Other Specific Services shall make known their intention of the planned concession award through the publication of a prior information notice.

The legislation makes it clear that public bodies may take into account the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services; the specific needs of different categories of users, including disadvantaged and vulnerable groups; the involvement and empowerment of users and innovation. Scottish Ministers have published statutory guidance for these contracts.

QUIZ

Question 10

For health and social services, at what contract values can you choose to direct award? (excluding standard non-competitive action provisions) please select one answer:

a) Above EU advertising thresholds

b) Above Reform Act but below EU advertising thresholds

c) Below Reform Act advertising thresholds.