A public body may exclude a bidder from tendering for a public contract where it falls within one of the grounds for exclusion in accordance with regulation 58(8) of Public Contracts (Scotland) Regulations 2015; for example breach of any obligations in the fields of environmental, social or employment law (these obligations include any relevant national law, as well as relevant collective agreements and specific international agreements).
It must be noted that a time limit of 3 years applies to discretionary exclusion grounds from the date of the conviction or misconduct, depending on the nature of the offence.
If a bidder is in a situation which might result in its exclusion due to breach of any of the exclusion grounds, it must be given the opportunity to provide evidence to show that it has taken remedial action to demonstrate its reliability, this is known as self-cleansing.
It is for a public body to consider all relevant factors, when forming a view of whether the measures taken are sufficient to demonstrate the reliability of the tenderer. In doing so it is important to take into account the gravity and particular circumstances. The public body must not exclude the bidder on those grounds if they are satisfied that the evidence provided is sufficient to demonstrate their reliability.
Where a public body decides that there may be a risk of exclusion grounds applying to a sub-contractor, it can choose to verify this at any stage in the procurement process. This can be an effective way to help ensure a robust approach is taken throughout the supply chain.
A public body should only ask for verification of exclusion grounds from sub-contractors in circumstances where it is regarded as proportionate and necessary to do so. A full list of the exclusion grounds can be found in Annex B of the Procurement Reform (Scotland) Act 2014 statutory guidance.
It is mandatory that the relevant exclusion grounds statement from the standardised statement document is included in the Contract Notice for procurements carried out under the Restricted Procedure. A public body can provide more information about specific exclusion grounds in the Contract Notice.
Model clauses to allow for termination of a contract or framework in the case of breaches of social, environmental and employment law are available from SPPN 9/2016.
Selection criteria applied to individual procurement processes must be relevant and proportionate to the subject matter of the contract, and there must be a clear methodology to evaluate responses. Where services are being procured care must be taken to make sure that requirements placed on tenderers are both relevant and proportionate. In terms of products supplied a tenderer may have responsibility for the production methods and place of origin.
Where a biodiversity requirement is considered relevant, it may not always be appropriate to assess it at this stage. Contracting authorities must consider whether previous experience of delivering a contract where biodiversity was relevant is required to be able to deliver the proposed contract. Care must be taken when establishing relevant experience so small and medium-sized enterprises and new suppliers in the market are not deterred or prohibited from bidding.
When selecting suppliers, it is essential to assess the technical capabilities that will be required for the products or services you are procuring to meet your needs. Not only is this useful from the buyer’s point of view, as suppliers that can clearly not meet the requirement will be eliminated, but it is also useful for the suppliers as they have a very clear understanding of how serious you are about sustainability and what will be essential for their submission to be successful.
An environmental management system is likely to only be relevant in the procurement of some products or services. Its requirement should be proportionate according to the market and the scope of the requirement, and you must be prepared to accept an equivalent to a system accredited to ISO14001 or EMAS for example. Rather than asking for a specific standard buyers could identify the elements of these standards and decide what is relevant to their organisation and the procurement. It would be essential that suppliers are notified of which elements they will be evaluated on. This would provide good evidence of their professional and technical ability – particularly where ‘sustainability’ is a desired outcome.
Any selection criteria deemed appropriate must be tested through the format of the Single Procurement Document (SPD). The SPD consists of a fixed set of questions that allows bidders to self-declare whether they meet the exclusion and selection criteria. Contracting authorities must incorporate statements into their contract notice or prior information notice (PIN) to help with the interpretation of the standardised questions in the SPD.
For example, if you are looking for experience of biodiversity in the past, then this could be worked into the experience related sections of the SPD (parts 4C.1 and 4C.1.2 asking bidders to provide relevant examples of contracts carried out in the past, “as specified in the Contract Notice”). If it is appropriate to require environmental management standards to be in place, the bidder should be asked to provide confirmation of this in the quality assurance schemes and environmental management standards section of the SPD (part IV, Selection Criteria, Section D).
See the Annex for examples.
