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 labour 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. 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 (the Act) 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. 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 (Scotland) (SPD). Associated guidance and standardised statements are available which encourages contracts to include environmental management measures that require bidders to provide a climate change plan at the selection stage. This can be done at Part 4: Selection criteria, Section C: Technical and Professional Ability of the SPD.
It may be appropriate to require bidders to have relevant environmental management systems or accreditation in place, for example ISO14001 or equivalent, where key environmental risks and opportunities rest in the production and associated process. This can be done at Part 4: Selection criteria, Section D: Quality Assurance Schemes and Environmental Management Standards of the SPD.
The Annex includes model wording that may be used for this purpose.
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