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 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 contract notice.
It is possible to clarify what bidders should consider when responding to the questions in respect of environmental, social or labour law.
For example: ‘Economic operators may be excluded from this competition if they are in any of the situations referred to in regulation 58 of the Public Contracts (Scotland) Regulations 2015.’
‘Bidders will be required to adhere to, and fulfil all obligations relevant under the Human Trafficking and Exploitation (Scotland) Act 2015 and the Modern Slavery Act 2015.’
‘Bidders will be required to adhere to, and fulfil all obligations relevant under The Waste Electrical and Electronic Equipment Directive (WEEE Directive) (2012/19/EU) and The Restriction of Hazardous Substances Directive (RoHS) (2002/95/EC).’
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). Buyers must issue an SPD for procurement exercises over the threshold (route 3) and it is recommended that it is also used for all route 2 procurements.
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: ‘Bidders will be required to confirm that they have (or have access to) the relevant supply chain management and tracking systems used by them to deliver the types of requirements detailed in II.2.4 in the contract notice or the relevant section of the site notice.’
‘Relevant protocols, standards, systems include those by the International Labour Organisation, Fairtrade Foundation, Ethical Trading Initiative, SA8000 or ISEAL, or equivalent.’
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