It is expected that bidders will comply with all relevant legal obligations, including workplace standards, health and safety, and employment laws.
A public body 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.
A public body may exclude a bidder from tendering for public contracts where it falls within one of the discretionary 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 social, environmental or employment law (these obligations include any relevant national law, including relevant collective agreements and specific international agreements) and obligations under 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, 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”. A public body 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 public body 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 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 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 public body can provide more information about specific exclusion grounds in the Contract Notice. The Annex 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.
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.
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.
Any selection criteria deemed appropriate must be tested through the Single Procurement Document (SPD). For example, it may be appropriate to require bidders have relevant quality assurance, or environmental management systems or accreditation in place, or to ask for evidence of safe handling / use / disposal of chemicals including appropriate training of staff, policies and procedures.
The Annex includes examples of wording that may be used for this purpose.
It may be proportionate to seek final clarification and confirmation of information supplied as part of selection criteria through the SPD, and where appropriate, this could be done through site visits.
