A contracting authority can exclude a bidder from tendering for public contracts where they fall within a ground for exclusion, for example Child labour and other forms of trafficking in human beings; any offence under Part 1 of the Human Trafficking and Exploitation (Scotland) Act 2015, or under any provision referred to in the Schedule to that Act. And breach of any obligations in the fields of environmental, social or labour law. These obligations include any relevant national and European law, as well as relevant collective agreements and specific international agreements, and for example would include obligations under the Modern Slavery Act.
Where a contracting authority decides that there may be a risk of exclusion grounds applying to a sub-contractor, they 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 at II.2.14 Additional Information. A contracting authority can provide more information about specific exclusion grounds in Section II.2.14 Additional information of the OJEU Contract Notice. For example, it is possible to clarify what bidders should consider when responding to the questions in respect of environmental, social or labour law.
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.
The contracting authority must not exclude the bidder on those grounds if they are satisfied that the evidence provided is sufficient to demonstrate their reliability.
Selection criteria that contracting authorities apply 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 within supply chains - for example by applying relevant criteria in respect of the technical and professional ability of those involved in the performance of the contract.
Any selection criteria deemed appropriate must be tested through the format of the Single Procurement Document (SPD).
For example, it may be appropriate to require bidders to demonstrate their experience of managing their supply chain as a means of determining their ability to tackle ethical and social issues. This could be worked into the experience related sections of the SPD parts 4C.1 and 4C.1.2, or part 4C.4 Supply chain management.
The Annex includes examples of wording that may be used for this purpose.
