The Public Contracts (Scotland) Regulations 2015

SECTION 2 S General Rules

Principles of procurement S

19.—(1) A contracting authority must, in carrying out any procurement or design contest which is subject to the application of these Regulations—

(a) treat economic operators equally and without discrimination; and

(b) act in a transparent and proportionate manner.

(2) A contracting authority must not design a procurement or design contest with the intention of excluding it from the application of these Regulations or of artificially narrowing competition.

(3) Without prejudice to the generality thereof, competition shall be deemed to be artificially narrowed for the purpose of paragraph (2) where the design of the procurement or design contest is made with the intention of unduly favouring or disadvantaging any particular economic operator.

(4) A contracting authority must include in each public contract or framework agreement such conditions relating to the performance of the contract or framework as meet the requirements mentioned in paragraph (5) and are reasonably necessary to ensure that the economic operator complies with environmental, social and employment law, including any relevant collective agreements or [F1 , subject to paragraphs (4A) and (4B),] international law measures referred to in Annex X of the Directive as amended from time to time.

[F2 (4A) Where—

(a) the United Kingdom has ratified an international agreement establishing obligations in any of the fields mentioned in paragraph (4), and

(b) the agreement is not already referred to,

the Scottish Ministers may make regulations providing that paragraph (4) is to have effect as if the agreement were referred to.

(4B) Where the United Kingdom has ceased to ratify an international agreement that is already referred to, the Scottish Ministers may make regulations providing that paragraph (4) is to have effect as if the agreement were not referred to.

(4C) In paragraphs (4A) and (4B)—

(a) “referred to” means referred to in Annex X mentioned in paragraph (4), and

(b) where paragraph (4) already has effect as if an agreement were referred to, “already referred to” includes that agreement.]

(5) The requirements referred to in paragraph (4) are that the conditions are—

(a) linked to the subject matter of the contract or framework within the meaning of regulation 70 (conditions for performance of contracts); and

(b) indicated in the call for competition or in the procurement documents.

Textual Amendments

F1 Words in reg. 19(4) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(17)(a) (with sch. paras. 1-5)

F2 Reg. 19(4A)-(4C) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(17)(b) (with sch. paras. 1-5)

Economic Operators S

20.—F3 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Where paragraph (3) applies, a contracting authority may require an economic operator to state, in its tender or request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract.

(3) This paragraph applies where an economic operator which is a legal person is seeking the award of—

(a) a public works contract;

(b) a public supply contract which includes services or siting and installation operations; or

(c) a public services contract.

(4) A contracting authority must not require a group of economic operators, including temporary associations, to have a specific legal form in order to be able to submit a tender or a request to participate.

(5) A contracting authority may specify in the procurement documents the method by which a group of economic operators is to meet the requirements as to economic and financial standing or technical and professional ability referred to in regulation 59 (selection criteria).

(6) Any method specified as referred to in paragraph (5) must be justified by objective reasons and must be proportionate.

(7) Any conditions for the performance of a contract by a group of economic operators, which are different from those imposed upon individual participants, must be justified by objective reasons and must be proportionate.

(8) A contracting authority may, if it is necessary for the satisfactory performance of the contract, require a group of economic operators to assume a specific legal form for the purpose of the award of the contract.

(9) In this Regulation reference to a “contract” includes reference to a framework agreement, dynamic purchasing system or design contest.

Textual Amendments

F3 Reg. 20(1) omitted (31.12.2020) by virtue of The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(18) (with sch. paras. 1-5)

Reserved contracts S

21.—(1) A contracting authority may—

(a) reserve the right to participate in procurement for the award of a public contract or framework agreement to a supported business; or

(b) provide for such a contract or framework agreement to be performed in the context of a supported employment programme.

(2) In this regulation—

“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; and

“supported employment programme” means an employment programme operated by an economic operator the main aim of which is the social and professional integration of disabled or disadvantaged persons and where at least 30% of those engaged in the programme are disabled or disadvantaged persons.

(3) Where a contracting authority is following the approach set out in paragraph (1), it must specify that fact in the contract notice and refer to [F4 this regulation].

Textual Amendments

F4 Words in reg. 21(3) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(19) (with sch. paras. 1-5)

Confidentiality S

22.—(1) A contracting authority must not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.

(2) Paragraph (1) is without prejudice to—

(a) any other provision of these Regulations, including the obligation relating to advertising of awarded contracts and to provision of information to candidates and tenderers set out in regulations 51 (contract award notices) and 56 (informing candidates and tenderers);

(b) the Freedom of Information (Scotland) Act 2002 M1 ;

(c) the Environmental Information (Scotland) Regulations 2004 M2 ; and

(d) any other enactment to which the contracting authority is subject relating to the disclosure of information.

(3) A contracting authority may impose upon an economic operator requirements aimed at protecting the confidential nature of information which the contracting authority makes available throughout the procurement procedure.

Marginal Citations

M1 2002 asp 13, amended by the Freedom of Information (Amendment) (Scotland) Act 2013 (2013 asp 2).

M2 S.S.I. 2004/520, amended by the Environmental Information (Scotland) Amendment Regulations 2013, S.S.I. 2013/127.

Rules applicable to communication S

23.—(1) Subject to paragraphs (3), (5) and (8), a contracting authority must ensure that all communication and information exchange, including submission, pursuant to these Regulations is performed using electronic means of communications in accordance with this Regulation.

(2) Subject to paragraph (13), the tools and devices to be used for electronic means of communication, and their technical characteristics, must—

(a) be non-discriminatory;

(b) be generally available;

(c) be interoperable with the information and communication technology products in general use; and

(d) not restrict economic operators' access to the procurement procedure.

(3) A contracting authority is not obliged to require electronic means of communication in the submission process where—

(a) due to the specialised nature of the procurement, the use of electronic means of communication would require specific tools, devices or file formats that are not generally available or supported by generally available applications;

(b) the applications supporting file formats that are suitable for the description of the tenders use file formats that cannot be handled by any other open or generally available applications or are under a proprietary licencing scheme and cannot be made available by the contracting authority for downloading or remote use;

(c) the use of electronic means of communication would require specialised office equipment that is not generally available to the contracting authority; or

(d) the procurement documents require the submission of physical or scale models which cannot be transmitted using electronic means.

(4) Where, in accordance with paragraph (3), electronic means of communication is not required, communication must be carried out—

(a) by post or by other suitable carrier; or

(b) by a combination of post or other suitable carrier and, to the extent that electronic means of communication is possible, by such means.

(5) A contracting authority is not obliged to require electronic means of communication in the submission process to the extent that the use of means of communication other than electronic means is necessary—

(a) because of a breach of security of the electronic means of communication; or

(b) for the protection of information of a particularly sensitive nature which requires such a high level of protection that it cannot properly be ensured by using electronic tools and devices that are either generally available to economic operators or that can be made available to them by suitable alternative means of access in accordance with paragraph (14).

(6) Where, in accordance with this regulation, a contracting authority requires means of communication in the submission process other than electronic means, the authority must state the reason for this in the individual report referred to in regulation 83 (reporting and documentation requirements).

(7) Where electronic means of communication is not required for a reason referred to in paragraph (5), the contracting authority must state in the individual report the reasons why use of means of communication other than electronic means has been considered necessary under that paragraph.

(8) Notwithstanding paragraph (1), oral communication may be used in respect of communications other than those concerning the essential elements of a procurement procedure, provided that the content of the oral communication is documented by the contracting authority.

(9) In paragraph (8), reference to “the essential elements of a procurement procedure” includes the procurement documents, requests for participation, confirmations of interest and tenders.

(10) A contracting authority must, to a sufficient extent and by appropriate means, document oral communications with tenderers which could have a substantial impact on the content and assessment of the tenders, in particular, by preparing written or audio records or summaries of the main elements of the communication.

(11) In all communication, exchange and storage of information, a contracting authority must ensure that the integrity of data and the confidentiality of tenders and requests to participate are preserved.

(12) A contracting authority must examine the content of tenders and requests to participate only after the time limit set for submitting them has expired.

(13) A contracting authority may, where necessary, require the use of tools and devices which are not generally available, provided that the contracting authority offers suitable alternative means of access.

(14) A contracting authority shall be deemed to offer suitable alternative means of access where the authority—

(a) offers unrestricted and full direct access free of charge by electronic means to those tools and devices from the date of publication of the call for competition or from the date when the invitation to confirm interest is sent;

(b) ensures that tenderers having no access to the tools and devices concerned, or no possibility of obtaining them within the relevant time limits (provided that the lack of access is not attributable to the tenderer) may access the procurement procedure through the use of provisional tokens made available free of charge online; or

(c) supports an alternative channel for electronic submission of tenders.

(15) For the purpose of paragraph (14)(a) “date of publication of the call for competition” means the date of publication [F5 on the UK e-notification service] after being [F6 submitted] in accordance with regulation 52 ([F7 publication on the UK e-notification service]).

(16) A contracting authority must specify in the call for competition or the invitation to confirm interest, referred to in paragraph (14)(a), the internet address at which those tools and devices are accessible.

(17) Tools and devices for the electronic receipt of tenders, requests to participate and, in design contests, plans and projects, must—

(a) enable the precise determination of the exact time and date of the receipt of tenders, requests to participate and the submission of plans and projects;

(b) to the extent reasonably possible, ensure that, before the time limit referred to in paragraph (12) has expired, no-one can have access to data transmitted to the authority using the tools and devices;

(c) ensure that only authorised persons may set or change the dates for opening data received;

(d) ensure that, during the different stages of the procurement procedure, only authorised persons may have access to data submitted or to part of such data;

(e) ensure that only authorised persons may give access to data transmitted and only after the time limit referred to in paragraph (12) has expired;

(f) ensure that data received and opened in accordance with the requirements in sub paragraphs (a) to (e) remains accessible only to persons authorised to acquaint themselves with the data; and

(g) to the extent reasonably possible, ensure that any infringement, or attempted infringement, of the conditions referred to in sub-paragraphs (b) to (f) is clearly detectable.

(18) In addition to the requirements set out in paragraph (17), a contracting authority must comply with all of the following requirements in relation to tools and devices for the electronic transmission and receipt of tenders and for the electronic receipt of requests to participate—

(a) information on specifications for the electronic submission of tenders and requests to participate, including encryption and time-stamping, must be available to interested parties;

(b) a contracting authority must specify the level of security required for the electronic means of communication in the various stages of the specific procurement procedure;

(c) the level of security specified in accordance with sub-paragraph (b) must be proportionate to the risks attached;

(d) where paragraph (19) applies, the contracting authority must [F8 act in accordance with Article 27 of Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market (and for this purpose the submission of the tender or request is to be treated as the use of an online service to which those Regulations apply)].

(19) This paragraph applies where a contracting authority concludes that the level of risk assessed in accordance with paragraphs (21) and (22) is such that advanced electronic signatures as defined by [F9 Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market] as amended from time to time, are required.

(20) A contracting authority shall assess the certificate referred to in paragraph (18)(d) by taking into account whether the certificate is provided by a certificate services provider, which is on a trusted list provided for in the Commission Decision.

(21) In deciding the level of security required at each stage of a procurement procedure, and in concluding whether the level of risk is such that advanced electronic signatures are required, a contracting authority must assess the risks having regard to—

(a) the likelihood of particular risks materialising;

(b) the potential adverse consequences if those risks materialise;

(c) the need for consistency as between similar procurements performed by the same contracting authority; and

(d) the need for proportionality between the expected benefits of any particular security requirements (in terms of eliminating or reducing any of the risks referred to in paragraph (22)), and the costs, burdens and obligations which those requirements may impose upon an economic operator.

(22) A contracting authority must assess all relevant risks, including, in particular, where applicable—

(a) the risk to the proper functioning and integrity of the specific procurement process, including risks of breach of these Regulations;

(b) risks to national security;

(c) the risk of inadvertent or unauthorised disclosure of, or access to, any economic operator's confidential information;

(d) the risk of inadvertent or unauthorised disclosure of, or access to, information held by the contracting authority including information relating to the specific procurement;

(e) the risk that use of electronic communications could provide opportunity for malicious attacks on the electronic systems of, or data held by, the authority, any economic operator or any other person, including introduction of malware or denial of service attacks; and

(f) any other material risk relating to the procurement procedure in question.

(23) Paragraph (24) applies where—

(a) a competent authority of the United Kingdom located in Scotland; or

(b) another issuing entity located in Scotland,

signs and issues a document for use in a [F10 procurement within the scope of this Part].

(24) The competent authority or issuing entity may establish the required advanced signature format [F11 in a format other than those referred to in Article 1 of Commission Implementing Decision (EU) 2015/1506 laying down specifications relating to formats of advanced electronic signatures and advanced seals to be recognised by public sector bodies] and, where it does so—

(a) it must put in place the necessary measures to be able to process that format technically by including the information required for the purpose of processing the signature in the document concerned; and

(b) the documents must contain, in the electronic signature or in the electronic document carrier, information on existing validation possibilities that [F12 comply with the requirements of Article 2(1)(b) of that Decision (or would simply comply with those requirements if the person seeking to validate the signature were a public sector body for the purpose of that Decision)].

Textual Amendments

F5 Words in reg. 23(15) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(20)(a)(i) (with sch. paras. 1-5)

F6 Word in reg. 23(15) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(20)(a)(ii) (with sch. paras. 1-5)

F7 Words in reg. 23(15) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(20)(a)(iii) (with sch. paras. 1-5)

F8 Words in reg. 23(18)(d) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(20)(b) (with sch. paras. 1-5)

F9 Words in reg. 23(19) substituted (22.7.2016) by The Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (S.I. 2016/696), reg. 1, Sch. 3 para. 18

F10 Words in reg. 23(23) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(20)(c) (with sch. paras. 1-5)

F11 Words in reg. 23(24) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(20)(d)(i) (with sch. paras. 1-5)

F12 Words in reg. 23(24)(b) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(20)(d)(ii) (with sch. paras. 1-5)

[F13 Powers to amend regulation S

23A.— (1) The Scottish Ministers may make regulations amending paragraph (3) of regulation 23 by—

(a) omitting any of the situations described in that paragraph where the Scottish Ministers consider that technological developments render it inappropriate for that situation to continue to be an exception from the obligation to require electronic means of communication, or

(b) inserting a description of a new situation where the Scottish Ministers consider that it should become a new exception because of technological developments.

(2) Where the Scottish Ministers consider that technological developments render it inappropriate for there to continue to be any exceptions from the obligation to require electronic means of communication, the Scottish Ministers may make regulations omitting paragraph (3) from regulation 23.

(3) Where regulations have been made under paragraph (2) and the Scottish Ministers consider that a new exception should be provided for because of technological developments, the Scottish Ministers may make regulations re-inserting paragraph (3) into regulation 23 in terms which give effect to that new exception (and the powers conferred by paragraphs (1) and (2) of this regulation may subsequently be exercised in relation to paragraph (3) as re-inserted).

(4) The Scottish Ministers may make regulations amending the technical details and characteristics set out in regulation 23(17) if the Scottish Ministers consider it appropriate to do so to take account of technical developments.]

Textual Amendments

F13 Reg. 23A inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(21) (with sch. paras. 1-5)

Nomenclatures S

24.  A contracting authority must, when making any reference to nomenclatures of the subject matter of a public contract in the conduct of a procurement, do so by using the CPV.

Conflicts of Interest S

25.—(1) A contracting authority must take appropriate measures to prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.

(2) Without prejudice to the generality thereof, reference to “conflicts of interest” in paragraph (1) includes any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure.

(3) In paragraph (2)—

“relevant staff members” means staff members of the contracting authority or of a procurement service provider acting on behalf of the contracting authority, who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure; and

“procurement service provider” means a public or private body which offers ancillary purchasing activities on the market.