We will have new Scottish Procurement Regulations later this year or early next year. These will implement last year's EU directive, which has already been implemented in England & Wales. The new Regulations will introduce a number of important changes to the law and there will be further changes for Scottish public bodies to deal with when the Procurement Reform (Scotland) Act 2014 comes into effect.
The work which public bodies will require to undertake to ensure compliance with both the new Regulations and the Act will be significant. All template documentation and internal policies and guidance will require to be updated to ensure compliance with the new regime, including appropriate references to the new legislation and that selection and award criteria reflect the new regime.
One major impact - making all procurement documents available from day one
One important change for public bodies will be the new obligation to make all "procurement documents" available from the date of publication of the OJEU contract notice. Under the current regime, in a restricted (two-stage) procedure, public bodies generally make the PQQ available electronically at the time of publication of the contract notice but not many public bodies make the ITT and contract conditions electronically available at that point (often because of restricted organisational capacity or to allow for the ITT and contract conditions to be amended to reflect any queries raised in the selection stage).
Under the new regime, all procurement documents (including ITT and contract conditions) will require to be electronically available from the date of publication of the OJEU notice, however. This is likely to impact significantly on the many public bodies who currently draft procurement documents on a phased basis, over the course of the procurement procedure. Particularly in relation to complex procurements (e.g. competitive dialogue where the form of final contract cannot usually be specified at the outset), it may be difficult to comply with this requirement in practice and it may be an area where guidance is issued in due course.
If there are significant changes to procurement documents after publication, depending on how material they are, this may require abandonment of the procedure and commencement of a replacement procedure or, at the very least, extension of time limits.
Making time for compliance
This is just one example of how the new Regulations will substantially impact on the workload of public bodies. Particularly when taken together with the changes introduced by the Act, public bodies should ensure they are able to dedicate sufficient time and resources to comply with the new regime.
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