Procurement Reform (Scotland) Act 2014: statutory guidance

Annex D: Definitions

• award notice
  For the purposes of the Act, the information published in accordance with section 23(2) of the Act which states that a contracting authority must publicise the award of a contract under a regulated procurement on the Public Contracts website.
• businesses
  For the purposes of public procurement in Scotland, businesses are defined as follows:
  • micro – 1–9 employees
  • small – 10–49 employees
  • medium – 50–250 employees
  • large – more than 250 employees
• candidate
  Means an economic operator that has sought an invitation to or has been invited to take part in any of the following:
  (i) a restricted procedure
  (ii) a competitive procedure with negotiation
  (iii) a negotiated procedure without prior publication
  (iv) a competitive dialogue procedure
  (v) an innovation partnership
• collective bargaining
  Is the official process by which trade unions negotiate with employers, on behalf of their members.
• community benefit requirement
  For the purposes of the Act, a community benefit requirement is a contractual requirement imposed by a contracting authority-
  (a) relating to-
  (i) training and recruitment, or
  (ii) the availability of sub-contracting opportunities, or
  (b) which is otherwise intended to improve the economic, social or environmental wellbeing of the authority's area in a way additional to the main purpose of the contract in which the requirement is included.
• contract award notice
  Means the notice referred to in regulation 51 (contract award notices) or, where relevant, regulation 75(3) (publication of notices) of the Public Contracts (Scotland) Regulations 2015.
• contract notice
  For the purposes of the Act, means the information published in accordance with section 23(1) of the Act which states that a contracting authority must publicise its intention to seek offers as part of a regulated procurement on the Public Contracts website.
  For the purposes of the Public Contracts (Scotland) Regulations 2015, Subject to regulation 98(6), means the notice referred to in regulation 50 (contract notices) or, where relevant, regulation 75(1)(a) (publication of notices).
• contracting authority
  For the purposes of the Act, a contracting authority is-
  (a) a body, office-holder or other person listed in the schedule to the Act, or
  (b) any other person who is a contracting authority for the purposes of the
  Public Contracts Regulations and whose functions-
  (i) are exercisable in or as regards Scotland, and
  (ii) do not relate to reserved matters within the meaning of the Scotland Act 1998.
• contracting authority's area
  For the purposes of the Act, means the area by reference to which the contracting authority primarily exercises its functions, disregarding any areas outside Scotland.
• DOTAS
  Means the Disclosure of Tax Avoidance Schemes rules which require a promoter of tax schemes to tell HM Revenue and Customs of any specified notifiable arrangements or proposals and to provide prescribed information on those arrangements or proposals within set time limits as contained in Part 7 of the Finance Act 2004 and in secondary legislation made under vires contained in Part 7 of the Finance Act 2004 and as extended to National Insurance Contributions by the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012, SI 2012/1868 made under s.132A Social Security Administration Act 1992.
• economic operator
  Means any person who offers the execution of works, the supply of products or the provision of services on the market.
• effective voice
• Requires workers, employers and trade unions or worker representative groups to work in partnership to make sure the right decisions are made to ensure workers are treated fairly and equitably. It requires a safe environment where dialogue and challenge are central to the organisational culture, are dealt with constructively, and where worker views are sought out, listened to and acted upon, and can make a difference.
• excluded contract
  For the purposes of the Act, a contract is an excluded contract for the purposes of section 3 of the Act if-
  (a) it is a contract of a kind to which the Public Contracts (Scotland) Regulations 2015 do not apply by virtue of regulation 4 or 7 to 18 of those regulations,
  (b) the following conditions apply-
  (i) it is for the purpose of acquiring goods, works or services in order to sell, hire or provide them to other persons,
  (ii) the contracting authority will not have an exclusive right to sell, hire or provide the goods, works or services, and
  (iii) the conditions on which the contracting authority intends to sell, hire or provide them are the same or similar to the conditions on which another person could sell, hire or provide the same or similar goods, works or services, or
  (c) the principle purpose of the contract is to acquire goods, works or services in connection with research or development undertaken by the contracting authority.
• financial year
  For the purposes of the Act, means the period of 12 months in respect of which the accounts of the contracting authority in question are prepared.
• frame work agreement
  (a) a framework agreement is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing public contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged,
  (b) a call-off contract is a contract awarded under a framework agreement.
• general anti abuse rule(UK)
  (a) Part 5 of the Finance Act 2013
  (b) any future legislation introduced into parliament to counteract tax advantages arising from abusive arrangements to avoid national insurance contributions
• general anti-avoidancerule
  (a) Part 5 of the Revenue Scotland and Tax Powers Act 2014
  (b) any future legislation introduced into parliament to counteract tax advantages arising from abusive arrangements to avoid national insurance contributions
• human rights standards
  Include the range of human rights obligations set out in the international human rights treaties to which the UK is a State Party.
• lifecycle
  Means all consecutive or interlinked stages, including research and development to be carried out, production, trading and its conditions, transport, use and maintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilisation.
• Occasion Of Non-Compliance
  (a) any tax return of the supplier submitted to a relevant tax authority on or after 1 October 2012 is found on or after 1 April 2013 to be incorrect as a result of:
  (i) a relevant tax authority successfully challenging the supplier under the General Anti-Abuse Rule, the General Anti-Avoidance Rule or the Halifax Abuse Principle or under any tax rules or legislation that have an effect equivalent or similar to the General Anti-Abuse Rule, the General Anti-Avoidance Rule or the Halifax Abuse Principle.
  (ii) the failure of an avoidance scheme which the supplier submitted to the relevant tax authority on or after 1 October 2012 gives rise, on or after 1 April 2013, to a criminal conviction in any jurisdiction for tax related offences which is not spent at the effective date or to a civil penalty for fraud or evasion.
• procurement
  Means the process leading to the award of a public contract or framework agreement or establishment of a dynamic purchasing system for the acquisition of works, supplies or services from an economic operator.
• procurement document
  Means any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure. This includes the contract notice, the prior information notice where it is used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents.
• public contracts
  Subject to regulation 98(6) of the Public Contracts (Scotland) Regulations 2015, means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as its object the execution of works, the supply of products or the provision of services.
• public service contracts
  Means a public contract having as its object the provision of services not including those comprising a public works contract (except a subsidised public service contract).
• public supply contracts
  Means a public contract having as its object the purchase, lease, rental or hire purchase, with or without an option to buy, of products which contract may include, as an incidental manner, siting and installation operations.
• public works contracts
  Means a public contract having as its object one of the following-
  (a) the execution or the design and execution of works related to one of the activities within the meaning of schedule 2 of the Public Contracts (Scotland)Regulations 2015
  (b) the execution or the design and execution of a work
  (c) the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work (except a subsidised public works contract)
• real Living Wage
  Is a rate of pay which applies to all employees aged 18 and above and is sufficient to ensure that the recipient may enjoy an acceptable standard of living. There are two rates of the real Living Wage: the UK wide rate and the London rate. The rates are announced annually by the Living Wage Foundation.
• regulated contract
  For the purposes of the Act, a contract is regulated if-
  (a) it is a public contract,
  (b) the estimated value of the contract is equal to or greater than the contract threshold^[49], and
  (c) the contract is not an excluded contract.
• regulated procurement
  For the purposes of the Act, a regulated procurement is-
  (a) any procedure carried out by a contracting authority in relation to the award of a proposed regulated contract including, in particular-
  (i) the seeking of offers in relation to the contract, and
  (ii) the selection of economic operators,
  (b) the award of a regulated contract by a contracting authority.
• relevant Tax Authority
  HM Revenue & Customs, Revenue Scotland or, if applicable, a tax authority in the jurisdiction in which the supplier is established.
• reserved contracts
  A process where participation in a procurement exercise is restricted to (reserved) only those economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons and where at least 30% of the employees are disabled or disadvantaged persons.
• selection criteria
• Means selection criteria set out by a contracting authority in accordance with regulation 59 of the Public Contracts (Scotland) Regulations 2015.
• self-employment
  Means the state of working for oneself as a freelance or the owner of a business rather than for an employer. Self-employment is an option available which affords benefits to those who choose to offer their services in such a manner. It provides flexibility and a self-determined remuneration package to persons preferring such a mode of engagement and for those who opt for self-employment this freedom of choice should not be arbitrarily withdrawn. Self-employment should be the choice of the individual and not forced upon them. See also 'umbrella companies'.
• significant procurement expenditure
  For the purposes of the Act, an authority has significant procurement expenditure in a year if the sum of the estimated values of the contracts to which its regulated procurements in that year relate is equal to or greater than £5,000,000.
• SPD
  Means the Single Procurement Document referred to in amended regulation 60(1) of the Public Contracts (Scotland) Regulations 2015.
• supported business
  Means an economic operator whose main aim is the social and professional integration of disabled or disadvantaged persons and where at least 30% of the employees of the economic operator are disabled or disadvantaged persons.
• sustainable procurement duty
  For the purposes of the Act, is the duty of a contracting authority-
  (a) before carrying out a regulated procurement, to consider how in conducting the procurement process it can-
  (i) improve the economic, social and environmental wellbeing of the authority's area,
  (ii) facilitate the involvement of small and medium enterprises, third sector bodies and supported businesses in the process, and
  (iii) promote innovation, and
  (b) in carrying out the procurement, to act with a view to securing such improvements identified as a result of paragraph (a)(i).
• tenderer
  Means an economic operator that has submitted a tender.
• third sector bodies
  For the purposes of the Act, means organisations (other than bodies established under an enactment) that exist wholly or mainly to provide benefits for society or the environment.
• umbrella company
  Is one which acts as an employer to agency workers who work under fixed term contract assignment. Inappropriate use of one is inconsistent with the standard of a good employer adopting fair work practices and could include, but not be limited to, engaging staff employed by the company to exploit workers through excessive administrative charges, issuing incomplete or confusing pay slips, moving staff on to the "umbrella" company without their prior knowledge and consent and using them as a device to reduce workers' pay or conditions. See also 'self-employment'.
• wellbeing of the authority's area
  Includes economic, social and environmental wellbeing, e.g. availability of suitable and high quality jobs; looking after the needs of children and young people; physical, social and mental health; protecting communities against the threat of climate change as well as, in particular, reducing levels of inequality in the area.
• working time
  Means travelling in connection with work, including travelling from one work assignment to another but does not include travelling between home and work.