Publication - FOI/EIR release

Information pertaining to procurement policy: FOI release

Published: 20 Dec 2021

Information request and response under the Freedom of Information (Scotland) Act 2002

Published:
20 Dec 2021
Information pertaining to procurement policy: FOI release
FOI reference: FOI/202100246285
Date received: 9 Oct 2021
Date responded: 22 Nov 2021
Information requested

1) Can you send me a copy of the current Scottish Government policy on preferred or negotiated provider?
2) How many contracts have been awarded using this route in the last 3 financial years?
3) Can you share the template or.guidance used by procurement officers to assess if a contract is best awarded directly without a tender process?
4) What is the Scottish Government policy relating to "Teckal" as a route for procurement?
5) How many times has the Scottish Government used "Teckal" as a route for direct award of a contract in the last 3 financial years?
6) As the European Union EJEU rules no longer apply can you share with me the change made to Scottish Government procurement rules allowing more contracts to remain in Scotland.
7) All of these requests apply to all procurement bodies used by the Scottish Government?

Response

Response to your request
1) Can you send me a copy of the current Scottish Government policy on preferred or negotiated provider?

When read in conjunction with questions 2 & 3, our interpretation of the term “preferred or negotiated provider” is that this question relates to the Scottish Government’s policy on contracts awarded using Non-Competitive Actions (“NCA”).

Mandatory guidance for core Scottish Government staff who are involved in procurement activity is set out in the Scottish Government Procurement Policy Manual. Section 8 of this guidance states that “NCA is only granted in exceptional circumstances. It is strictly limited to situations where competition is not deemed appropriate”.

The Scottish Government issued guidance to purchasers across the public sector in Scotland in March 2020 raising awareness of the options available to them in procuring urgent requirements as a consequence of the COVID-19 pandemic - Coronavirus (COVID-19): procurement regulations for public bodies SPPN 4/2020. This included an option of a non-competitive action leading to a Direct Award (see paras 23-27 and Annex E).

2) How many contracts have been awarded using this route in the last 3 financial years?

When read in conjunction with question 3, our interpretation of this question is that it relates to the direct award of new contracts using the NCA process. There were a total of 106 new contracts awarded by the Scottish Government using the NCA route in the last three financial years (up to the date of receipt of this FOI request). This is comprised of the following: 

 

Period

Number of contracts awarded

01/04/2019 - 31/03/2020

31

01/04/2020 - 31/03/2021

53

01/04/2021 - 09/10/2021

22

Total

106

3) Can you share the template or guidance used by procurement officers to assess if a contract is best awarded directly without a tender process?

Authorisation to buy goods, works and services without competition by the Scottish Government is granted in exceptional circumstances only. Requests to dispense with competition are assessed on a case-by-case basis, taking account of legislation and policy.

Section 8 of the Scottish Government Procurement Policy Manual, sets out the Scottish Government policy and procedure for consideration of NCA requests. Regulation 6 of The Procurement (Scotland) Regulations 2016 and Regulation 33 of the Public Contracts (Scotland) Regulations 2015 set out the circumstances in which contracts that are governed by these regulations can be awarded without competition.

4) What is the Scottish Government policy relating to "Teckal" as a route for procurement?

By “Teckal”, we understand that you are referring to the exclusions from procurement legislation which apply to public contracts between entities within the public sector, deriving from the European Court of Justice’s judgment in 1999 of Teckal (C-107/98). The court’s conclusions were codified into the 2014 EU Procurement Directive (Article 12 of EU Directive 2014/24/EU) and then transposed into domestic law through Regulation 13 of The Public Contracts (Scotland) Regulations 2015, which remains in force today.

Where the criteria in Regulation 13 are met, the provisions of the Public Contracts (Scotland) Regulations 2015 do not apply to the award of a contract between the Scottish Government and another public body, meaning that any contractual arrangement between those bodies can be set up in a manner that does not have to be consistent with the processes and procedures set out in the 2015 Regulations.

5) How many times has the Scottish Government used "Teckal" as a route for direct award of a contract in the last 3 financial years?

We are not aware of any Scottish Government NCA applications to dispense with competition on the basis of Regulation 13 of The Public Contracts (Scotland) Regulations 2015 during this period.

6) As the European Union EJEU rules no longer apply can you share with me the change made to Scottish Government procurement rules allowing more contracts to remain in Scotland.

Following the end of the transitional period of the UK’s exit from the European Union on 31st December 2020, some technical legislative changes were made to amend deficiencies that would have arisen as a result of the exit from the EU. These are outlined in Scottish Procurement Policy Note 5/2021 (Changes
to Scottish procurement legislation following the UK’s exit from the EU: SPPN 5/2021 - gov.scot (www.gov.scot)).

However, procurement processes largely operate on the same basis as before. This means that current legislation, such as the Public Contracts (Scotland) Regulations 2015 which was transposed from EU procurement Directives, remain substantially the same as they were prior to the UK leaving the EU.

Details of procurement legislation made as a result of leaving the EU can be found in Scottish Procurement Policy Note 11/2020 (Changes to procurement legislation at the end of the EU Exit Transition Period: SPPN 11/2020 - gov.scot (www.gov.scot))

7) All of these requests apply to all procurement bodies used by the Scottish Government

The Scottish Government can only provide information on behalf of the Scottish Government and not any other public body. Separate requests should be directed to the relevant body.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG