The Scottish Government has published a new Procurement Policy Note setting out proposed changes to public procurement legislation in Scotland in the event the UK leaves the EU without a deal. Most of these changes are technical in nature, and they do not fundamentally change the process of advertising and awarding public contracts in Scotland.
Summary of proposed key changes
The changes are designed to address deficiencies in legislation caused by the UK’s exit from the EU. They are therefore primarily technical in nature - for example, removing references to “member States”, and deleting requirements to send reports to the European Commission.
Procurement procedures would be fundamentally unchanged – financial thresholds, the basic requirements to advertise contacts, observe minimum timescales, and follow rules on technical specifications and award criteria, remain in place. The ESPD would remain, but would be re-named the Single Procurement Document.
The biggest change is that contracting authorities would no longer be required to publish notices in the OJEU. Instead, these notices would be published on a new UK e-notification system. The requirement to publish notices on Public Contracts Scotland (PCS) which comes from the Procurement Reform (Scotland) Act 2014 would not be affected. In practice, contracting authorities use PCS to send notices to the OJEU and steps are being taken to ensure that it will be possible to use PCS to send notices to the new UK e‑notification system.
Other proposed changes
The requirement to afford equal treatment to bidders from countries which are signatories to the World Trade Organisation’s Government Procurement Agreement (the GPA) would remain in place for a period of eight months after exit day, for contracts currently described as being worth at least the EU thresholds. This is at the request of the UK Government, and is in anticipation of the UK joining the GPA in its own right.
The requirement to have recourse to e-Certis, the EU’s online database of documentary evidence required in each member State, would be removed, as would the references to the EU’s State aid regime. Contracting authorities would no longer be required to exclude companies which have been convicted of fraud affecting the European Communities’ financial interests.
Next steps
The Scottish Parliament will consider the draft legislation, and these changes would take effect if the UK exits the EU without an agreement which covers procurement. More detailed guidance will be issued as exit day approaches.
The UK government has also published updated procurement guidance in the event of a no-deal Brexit – see our Law-Now for more information.
If you would like further information, please contact your usual CMS contact or our key contacts.
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