It is expected that bidders will comply with all relevant legal obligations, including workplace standards, health and safety, and employment laws. Scottish Procurement legislation places a legal obligation on a public body to include relevant clauses in their contracts to ensure those they contract with comply with environmental, social, health and safety and employment law obligations. A public body can reject a bid or terminate a contract that does not comply with these applicable obligations.
A contracting authority must exclude a bidder from tendering for a public contract where it falls within a mandatory ground for exclusion in accordance with regulation 58(1) of Public Contracts (Scotland) Regulations 2015; for example an act prohibited under the Employment Relations Act 1999 (Blacklists) Regulations 2010, regulation 58(3)(b) of the Public Contracts (Scotland) Regulations 2015.
A contracting authority may exclude a bidder from tendering for public contracts where it falls within one of the discretionary ground for exclusion in accordance with regulation 58(8) of Public Contracts (Scotland) Regulations 2015. For example, breach of any obligations in the fields of social, environmental or employment law. These obligations include any relevant national law, including relevant collective agreements (see below for more information on collective agreements) and specific international agreements as well as obligations under the Equality Act 2010, the Human Trafficking and Exploitation (Scotland) Act 2015, the Modern Slavery Act 2015, and the Health and Safety at Work etc. Act 1974.
It must be noted that there are time limits that apply to exclusion grounds. These are for 5 years for a mandatory exclusion ground or 3 years for a discretionary exclusion ground 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, they must be given the opportunity to provide evidence to show that they has taken remedial action to demonstrate its reliability, this is known as “self-cleansing”. A contracting authority must not exclude the bidder on those grounds if it is satisfied that the evidence provided is sufficient to demonstrate the bidder’s reliability. It is for a contracting authority to consider all relevant factors, when forming a view of whether the measures taken are sufficient to demonstrate the reliability of the bidder.
Where a contracting authority 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 contracting authority 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 the Procurement Journey.
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 contracting authority can provide more information about specific exclusion grounds in the Contract Notice. Annex E includes model wording that may be used for this purpose.
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.
Collective bargaining covers the negotiation with an employer of terms and conditions by a group of employees in a defined ‘bargaining unit’. This can include all employees in a workplace or just certain groups of workers, for example technicians.
If collective bargaining leads to an agreement with an employer, for example about a pay increase or change in working conditions, it’s called a ‘collective agreement’. More information is available from the webpage ‘Working with trade unions: employers’.
The following are some examples of collective agreements in the construction sector:
Selection criteria applied to individual procurement processes must be relevant and proportionate to the subject matter of the contract.
It is possible that selection criteria may address social issues by applying relevant criteria in respect of the technical and professional ability of those involved in the performance of the contract. For example, where high volumes of workers are involved, a contracting authority may ask for evidence of capacity and capability to recruit and retain staff in a fair way or ask for evidence of staff development practices.
