Publication - Advice and guidance

Procurement Reform (Scotland) Act 2014: statutory guidance

Published: 17 Mar 2016
Directorate:
Scottish Procurement and Property Directorate
Part of:
Public sector
ISBN:
9781786520272

Guidance on procurement strategies and annual reports, the sustainable procurement duty, community benefit, tenders and award of contracts.

104 page PDF

4.5 MB

104 page PDF

4.5 MB

Contents
Procurement Reform (Scotland) Act 2014: statutory guidance
ANNEX D: DEFINITIONS

104 page PDF

4.5 MB

ANNEX D: DEFINITIONS

  • award notice
    For the purposes of the Act, the information published in accordance with section 23(2) of the Act which states that a contracting authority must publicise the award of a contract under a regulated procurement on the Public Contracts website.
  • businesses
    For the purposes of public procurement in Scotland, businesses are defined as follows:
    • Micro – 1–9 employees;
    • Small – 10–49 employees;
    • Medium – 50–250 employees; and
    • Large – more than 250 employees.

This is a simplification of the definition used by the European Commission [55] .

  • candidate
    Means an economic operator that has sought an invitation to or has been invited to take part in any of the following:
    (i) a restricted procedure;
    (ii) a competitive procedure with negotiation;
    (iii) a negotiated procedure without prior publication;
    (iv) a competitive dialogue procedure;
    (v) an innovation partnership.
  • community benefit requirement
    For the purposes of the Act, a community benefit requirement is a contractual requirement imposed by a contracting authority-
    a) relating to-
    (i) training and recruitment, or
    (ii) the availability of sub-contracting opportunities, or
    b) which is otherwise intended to improve the economic, social or environmental wellbeing of the authority’s area in a way additional to the main purpose of the contract in which the requirement is included.
  • contract award notice
    Means the notice referred to in regulation 51 (contract award notices) or, where relevant, regulation 75(3) (publication of notices) of The Public Contracts (Scotland) Regulations 2015.
  • contract notice
    For the purposes of the Act, means the information published in accordance with section 23(1) of the Act which states that a contracting authority must publicise its intention to seek offers as part of a regulated procurement on the Public Contracts website.
    For the purposes of The Public Contracts (Scotland) Regulations 2015, Subject to regulation 98(6), means the notice referred to in regulation 50 (contract notices) or, where relevant, regulation 75(1)(a) (publication of notices).
  • contracting authority
    For the purposes of the Act, a contracting authority is-
    (a) a body, office-holder or other person listed in the schedule to the Act, or
    (b) any other person who is a contracting authority for the purposes of the Public Contracts Regulations and whose functions-
    (i) are exercisable in or as regards Scotland, and
    (ii) do not relate to reserved matters within the meaning of the Scotland Act 1998.
  • contracting authority’s area
    For the purposes of the Act, means the area by reference to which the contracting authority primarily exercises its functions, disregarding any areas outside Scotland.
  • DOTAS
    Means the Disclosure of Tax Avoidance Schemes rules which require a promoter of tax schemes to tell HM Revenue and Customs of any specified notifiable arrangements or proposals and to provide prescribed information on those arrangements or proposals within set time limits as contained in Part 7 of the Finance Act 2004 and in secondary legislation made under vires contained in Part 7 of the Finance Act 2004 and as extended to National Insurance Contributions by the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012, SI 2012/1868 made under s.132A Social Security Administration Act 1992.
  • Economic operator
    Means any person who offers the execution of works, the supply of products or the provision of services on the market.
  • EU-regulated procurement
    For the purposes of the Act, means a regulated procurement to which The Public Contracts Regulations apply.
  • ESPD
    Means the European Single Procurement Document referred to in regulation 60(1) (European single procurement documents: Use, content and form of ESPD) of The Public Contracts (Scotland) Regulations 2015.
  • excluded contract
    For the purposes of the Act, a contract is an excluded contract for the purposes of section 3 of the Act if-
    (a) it is a contract of a kind to which The Public Contracts (Scotland) Regulations 2015 do not apply by virtue of regulation 4 or 7 to 18 of those regulations,
    (b) the following conditions apply-
    (i) it is for the purpose of acquiring goods, works or services in order to sell, hire or provide them to other persons,
    (ii) the contracting authority will not have an exclusive right to sell, hire or provide the goods, works or services, and
    (iii) the conditions on which the contracting authority intends to sell, hire or provide them are the same or similar to the conditions on which another person could sell, hire or provide the same or similar goods, works or services, or
    (c) the principle purpose of the contract is to acquire goods, works or services in connection with research or development undertaken by the contracting authority.
  • financial year
    For the purposes of the Act, means the period of 12 months in respect of which the accounts of the contracting authority in question are prepared.
  • framework agreement
    (a) a framework agreement is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing public contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged,
    (b) a call-off contract is a contract awarded under a framework agreement.
  • general anti abuse rule ( UK)
    (a) Part 5 of the Finance Act 2013; and
    (b) any future legislation introduced into parliament to counteract tax advantages arising from abusive arrangements to avoid national insurance contributions
  • general anti-avoidance rule
    (a) Part 5 of the Revenue Scotland and Tax Powers Act 2014; and
    (b) any future legislation introduced into parliament to counteract tax advantages arising from abusive arrangements to avoid national insurance contributions
  • life cycle
    Means all consecutive or interlinked stages, including research and development to be carried out, production, trading and its conditions, transport, use and maintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilisation.
  • living wage
    Is a rate of pay which is sufficient to ensure that the recipient may enjoy an acceptable standard of living. The rate will be different for different places, reflecting costs of living. In the UK the rate is an hourly rate set independently and updated annually by the Living Wage Foundation and calculated by the Centre for Research in Social Policy at Loughborough University’. More information is available at – http://www.livingwage.org.uk/waht-living-wage – and is consistent with the definition provided in section 15(7) of the Act.
  • member state
    Means a state which is a member of the European Union. As of the date of publication of this guidance, there are 28 member states: http://europa.eu/about-eu/countries/index_en.htm.
  • Occasion Of Non-Compliance
    (a) any tax return of the supplier submitted to a relevant tax authority on or after 1 October 2012 is found on or after 1 April 2013 to be incorrect as a result of:
    (i) a relevant tax authority successfully challenging the supplier under the General Anti-Abuse Rule, the General Anti-Avoidance Rule or the Halifax Abuse Principle or under any tax rules or legislation that have an effect equivalent or similar to the General Anti-Abuse Rule, the General Anti-Avoidance Rule or the Halifax Abuse Principle.
    (ii) the failure of an avoidance scheme which the supplier submitted to the relevant tax authority on or after 1 October 2012 gives rise, on or after 1 April 2013, to a criminal conviction in any jurisdiction for tax related offences which is not spent at the effective date or to a civil penalty for fraud or evasion.
  • procurement
    Means the process leading to the award of a public contract or framework agreement or establishment of a dynamic purchasing system for the acquisition of works, supplies or services from an economic operator.
  • procurement document
    Means any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice, the prior information notice where it is used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents.
  • public contracts
    subject to regulation 98(6) of The Public Contracts (Scotland) Regulations 2015, means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as its object the execution of works, the supply of products or the provision of services.
  • public service contracts
    Means a public contract having as its object the provision of services not including those comprising a public works contract (except a subsidised public service contract).
  • public supply contracts
    Means a public contract having as its object the purchase, lease, rental or hire purchase, with or without an option to buy, of products which contract may include, as an incidental manner, siting and installation operations.
  • public works contracts
    means a public contract having as its object one of the following-
    (a) the execution or the design and execution of works related to one of the activities within the meaning of schedule 2 of The Public Contracts (Scotland) Regulations 2015;
    (b) the execution or the design and execution of a work;
    (c) the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work;
    (except a subsidised public works contract).
  • regulated contract
    For the purposes of the Act, a contract is regulated if-
    (a) it is a public contract,
    (b) the estimated value of the contract is equal to or greater than the contract threshold [56] , and
    (c) the contract is not an excluded contract.
  • regulated procurement
    For the purposes of the Act, a regulated procurement is-
    (a) any procedure carried out by a contracting authority in relation to the award of a proposed regulated contract including, in particular-
    (i) the seeking of offers in relation to the contract, and
    (ii) the selection of economic operators,
    (b) the award of a regulated contract by a contracting authority.
  • relevant Tax Authority
    HM Revenue & Customs, Revenue Scotland or, if applicable, a tax authority in the jurisdiction in which the supplier is established.
  • reserved contracts
    A process where participation in a procurement exercise is restricted to (reserved) only those economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons and where at least 30% of the employees are disabled or disadvantaged persons.
  • selection criteria
    Means selection criteria set out by a contracting authority in accordance with regulation 59 of The Public Contracts (Scotland) Regulations 2015.
  • significant procurement expenditure
    For the purposes of the Act, an authority has significant procurement expenditure in a year if the sum of the estimated values of the contracts to which its regulated procurements in that year relate is equal to or greater than £5,000,000.
  • supported business
    Means an economic operator whose main aim is the social and professional integration of disabled or disadvantaged persons and where at least 30% of the employees of the economic operator are disabled or disadvantaged persons.
  • sustainable procurement duty
    For the purposes of the Act, is the duty of a contracting authority-
    (a) before carrying out a regulated procurement, to consider how in conducting the procurement process it can-
    (i) improve the economic, social and environmental wellbeing of the authority’s area,
    (ii) facilitate the involvement of small and medium enterprises, third sector bodies and supported businesses in the process, and
    (iii) promote innovation, and
    (b) in carrying out the procurement, to act with a view to securing such improvements identified as a result of paragraph (a)(i).
  • tenderer
    Means an economic operator that has submitted a tender.
  • third sector bodies
    For the purposes of the Act, means organisations (other than bodies established under an enactment) that exist wholly or mainly to provide benefits for society or the environment.

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