Scottish procurement policy handbook

4 Legal framework

The legal framework for public procurement includes:

• EC Treaty obligations ¹² ;
• EC Procurement Directives, as implemented in national legislation; and
• European Court of Justice and national caselaw.

4.1 EC Treaty

The EC Treaty applies to all public procurement activity regardless of value, including contracts below the thresholds at which advertising in the Official Journal of the European Union is required and including contracts which are exempt from application of the EC Procurement Directives ¹³ .

Fundamental principles flowing from the Treaty include:

• transparency - contract procedures must be transparent and contract opportunities should generally be publicised;
• equal treatment and non-discrimination - potential suppliers must be treated equally;
• proportionality - procurement procedures and decisions must be proportionate; and
• mutual recognition - giving equal validity to qualifications and standards from other Member States, where appropriate.

4.2 EC Procurement Directives and implementing Scottish Regulations

EC Procurement Directives 2004/17/EC and 2004/18/EC set out detailed procedural rules which are based on the principles outlined in the EC Treaty and which are intended to support the single market by harmonising procedures for higher value contracts, ensuring that they are advertised in the Official Journal of the European Union in standard format.

These Directives are given effect in Scots law by The Public Contracts (Scotland) Regulations 2006 ( SSI 2006 No 1) and The Utilities Contracts (Scotland) Regulations 2006 ( SSI 2006 No 2) which came into force on 31 January 2006.

A copy of the Scottish Procurement Regulations and amending regulations can be found on the SPD website:
http://www.scotland.gov.uk/Topics/Government/Procurement/Selling/10615

Prior to implementing EC Procurement Directives in national legislation, the Scottish Government will consult publicly on its approach to implementation and/or draft legislation.

Further information relating to EC procurement law is provided in the Scottish Public Procurement Toolkit (see section 16.3).

4.3 European Court of Justice and national caselaw

Decisions of the European Court of Justice and the national courts provide interpretation of the requirements of the EC Treaty and the EC Procurement Directives and can establish precedents which must be observed. Caselaw, by its nature, is constantly evolving and can have significant effects.

4.4 Meeting legal obligations

The legal framework is not static: it evolves through new/amended legislation, through European Commission decisions/guidelines and through Court judgments. Every contracting authority should therefore ensure that it has appropriate arrangements in place to ensure that staff involved in procurement activity are kept up to date with developments in the legal framework and are equipped to meet their legal obligations. Where appropriate, SPD will issue guidance on changes to the legal framework via Scottish Procurement Policy Notes or Action Notes (see section 18).

Organisations should bring any complex legal issues to the attention of SPD and the relevant Centre of Expertise. This will allow SPD to determine if wider dissemination across the procurement community is appropriate.

4.5 Formal challenges/complaints

Regulation 47 of the Public Contracts (Scotland) Regulations 2006 allows suppliers to bring proceedings in the Sheriff Court or Court of Session against contracting authorities which have infringed their obligations to comply with the Regulations, or any other enforceable European Community law provision which may be relevant to awarding a public contract ¹⁴ .

Any individual may bring an alleged breach of the EC Procurement Directives to the attention of the European Commission. In the event of proceedings by the Commission against a Scottish contracting authority, SPD will co-ordinate the UK response under the arrangements set out in a subject specific Concordat on public procurement which has been published on the SPD website: http://www.scotland.gov.uk/Resource/Doc/175738/0049495.pdf

In co-ordinating the response, SPD will consult with the individual contracting authority or Centre of Expertise (where the challenge/complaint relates to an alleged breach by a Centre of Expertise), as appropriate.