This month, the Scottish Government published a consultation paper seeking views on amendments to the Public Contracts (Scotland) Regulations 2006 and the Utilities Contracts (Scotland) Regulations 2006 (the "2006 Regulations") to take account of:
- the judgment of the European Court of Justice (ECJ) in the case of Uniplex v NHS Business Services Authority (January 2010) (see our e-update on this case here);
- new offences introduced by the Bribery Act 2010 (see our e-update on the procurement aspects of this Act here); and
- new offences relating to serious organised crime introduced by the Criminal Justice and Licensing (Scotland) Act 2010.
Uniplex
The ECJ held in Uniplex that the requirement in the 2006 Regulations to bring court enforcement proceedings "promptly" is incompatible with EU law. The requirement gives rise to uncertainty because it allows for discretion as to what is prompt in any case. The Court also decided that the period for bringing proceedings should start from the date on which the challenger knew, or ought to have known, of the infringement. The 2006 Regulations currently provide that proceedings must be brought within 3 months from the date when grounds for the bringing of proceedings first arose.
Implementation of the ECJ's decision is mandatory, so the consultation seeks views on whether amendments should be made to the 2006 Regulations to:
- remove or redefine reference to the requirement to bring proceedings "promptly";
- determine how knowledge of the infringement should be established; and
- impose a new time limit for bringing proceedings from the relevant date of knowledge.
Bribery Act and Criminal Justice and Licensing (Scotland) Act (the "2010 Acts")
Put simply, the 2006 Regulations currently impose mandatory requirements for public bodies and utilities to exclude potential tenderers from the procurement process if they have "actual knowledge that the economic operator or its directors or any other person who has powers of representation, decision or control of the economic operator" has been convicted of certain offences. New offences created by the 2010 Acts, and the repeal of other Acts currently referred to in the 2006 Regulations. mean that amendments are required to the 2006 Regulations.
The consultation seeks views on the treatment of new and current offences in the 2006 Regulations.
Commentary
The submission of stakeholders' views on the amendments required to account for the Uniplex judgment is particularly important. Public bodies will want the 2006 Regulations to be framed in a way which will not leave them unsure for how long their decisions will be subject to a challenge. Tenderers and potential challengers will wish the regime to be clear and to allow a sufficient period to enable them to challenge decisions where necessary. The views of those experienced in public and utilities procurements will be very useful to the Scottish Government in striking a fair and legally robust compromise.
Responses to the consultation are required by 31 January 2011 and the full consultation paper can be found at http://www.scotland.gov.uk/Publications/2010/12/03145348/0
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
