SPCB procurement is governed by a framework of rules including:
- Treaty on the Functioning of the European Union (EU Treaty) – fundamental principles of transparency, equal treatment, non-discrimination, proportionality and mutual recognition apply to all SPCB procurements, regardless of whether the full EU procurement rules apply
- EU Procurement Directives - The Public Contracts Directive 2014 provides detailed procedural rules that the SPCB must comply with when procuring and awarding contracts above EU financial threshold. Directive is given effect into Scots law by the Public Contracts (Scotland) Regulations 2015.
- The Public Contracts (Scotland) Regulations 2015 – these regulations apply to SPCB procurement when the estimated value of the contract equals or exceeds the current EU financial threshold. They impose minimum procurement standards that must be followed at all times.
- Procurement Reform (Scotland) Act 2014 - The Act applies to contracts and framework agreements whose total estimated value is of £50,000 or more for goods/services, and £2,000,000 or more for works (referred to as "Regulated" contracts). The Act introduces a number of obligations that extend into the EU regime.
- Procurement (Scotland) Regulations 2016 - These regulations draw-down certain obligations from the EU regime to Regulated contracts under the Reform Act.
- European Court of Justice and national case law as published.
The legal framework is not static and therefore SPCB policy will evolve through new and amended legislation, European Commission decisions and relevant Court judgments.
Challenges
Formal challenges and complaints may be brought against the SPCB alleging a breach of these rules. The consequences of a successful challenge may, depending on the nature of the breach, result in the SPCB being fined; the duration of a contract being shortened; the contract or procedure being set aside; damages being awarded against the SPCB; and reputational damage to the SPCB and the Scottish Parliament.
Any challenges raised and any correspondence from legal advisors challenging an SPCB procurement process or contract award decision must be forwarded to the Head of Procurement immediately.
Conditions of Contract
It is SPCB policy that all contracts awarded should be subject to Scots law and using SPCB agreed contract conditions. Any proposal to the contrary, or an attempt by a supplier to make any other law applicable or any proposal for changes or amendments must be referred to Procurement Services for approval.
Commitment of a Contract
Under Scots law, a contract is an agreement between 2 or more parties that is enforceable by law. There is no fundamental difference between a “purchase”, and “agreement” or a “contract”.
It is SPCB policy that all contracts are in writing and awarded by a purchaser with the appropriate level of purchasing authority. Legally contracts can be made by word of mouth, or implied by the action of the parties. Therefore, in discussion with suppliers, it is essential that staff ensure that a contract is not unintentionally created.
The exception to the above Conditions of Contract and Commitment of a Contract are purchases made using the Corporate Card as these purchases are made under the card provider’s contract conditions and there may be no commitment in writing. All purchases made using the Corporate Card must comply with the Card Policy to ensure that an effective record of each commitment is maintained.