Scottish Government

Second consultation on implementing the EU Remedies Directive

Responses to the Consultation

March 2010SCOTTISH GOVERNMENT CONSULTATION ON THE APPROACH TO IMPLEMENTATION OF THE EU REMEDIES DIRECTIVE - RESPONSES TO THE CONSULTATION

The above consultation document was published on the Scottish Government website on 3 June 2009: http://www.scotland.gov.uk/Publications/2009/06/03095738/0. Responses were requested by 21 August 2009.

We received 24 responses to the consultation. The following respondents agreed to their responses being made available to the public; their responses appear in full in this document.

Next steps

We have taken full account of the responses to the consultation, together with other available evidence, in finalising the Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2009: http://www.opsi.gov.uk/legislation/scotland/ssi2009/ssi_20090428_en_1. We intend to issue a report on the consultation process shortly.

Scottish Procurement Directorate

March 2010

Advanced Procurement for Universities and Colleges Ltd

Question 1: The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

Question 3: The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

Question 4: The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

Question 6: The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

Question 7: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

Question 10: The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

Question 11: The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

Question 14: The Scottish Government seeks stakeholders' comments on the draftRIAatAnnex B.

Allan Mackenzie

The Directive describes the standstill period as:

"the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision ."

The draft Scottish regulations describe the period as follows:

"(i) where the notice referred to in paragraph (1) is sent [only] by facsimile or by electronic means, 10 days from the date on which the notice is sent to the economic operators; or

(ii) where the notice referred to in that paragraph is sent by post, or by a combination of facsimile or electronic means and post, 15 days from the date on which the notice is sent to the economic operators;"

and the draft English/Welsh/NI Regulations describe the period as follows:

"standstill period ends at midnight at the end of the 11th day following the relevant sending date.." for electronic/fax notice and, for any other form of notice, whichever of the following occurs first:

"midnight at the end of the 16th day following the relevant sending date" and

"midnight at the end of the 11th day following the date on which the last economic operators to receive such notice receives it".

I think there are errors in both the Scottish and the English/Welsh/NI draft Regulations.

The standstill definition in the Directive appears to be quite straight forward. So, by way of example, if an electronic notice was given on the 31st day of July, the standstill period would expire at midnight at the end of the 10th of August. So the contract could be signed at 00.01am on the 11th of August.

Under the draft Scottish Regulations, with electronic notice, a contract could be signed any time on the 10th of August as there is no reference to calendar days or to midnight at the end of the 10th day. Since the period specified in the draft Regulations is less than the mandatory minimum period specified by the Directive the draft Regulations are clearly contrary to EU law.

If other means of notification are used the draft Scottish Regulations only refer to the minimum 15 days period. The Directive additionally states that the standstill period must extend for "at least 10 calendar days with effect from the day following the date of receipt of the contract award decision". There is no reference to this alternative period in the draft Scottish Regulations. 10 days after receipt could be longer than 15 days after sending if the post is slow. There is no indication in the Directive that whichever is the shorter period should apply. In fact I think the opposite conclusion can be drawn from the text since both periods are prefaced by the words " at least".

regarding the definition of standstill time periods I spotted the following note in your Transposition Table:

"Note that the application of regulation 2(4) of the Public Contracts (Scotland) Regulations 2006 means that the 10 or 15 day calendar day periods commence on the day following the date on which the contract award decision is sent. This does not need to be re-stated in regulation 32(16)(c)."

However, paragraph 2(4) of the existing regulations says:

4) Where a thing is required to be done under these Regulations-

(a) within a period after an action is taken, the day on which that action is taken shall not be counted in the calculation of that period;

(b) within a certain period, that period must include two working days; and

(c) except for regulation 32(3), within a certain period and the last day of that period is not a working day, the period shall be extended to include the next working day.

Regulation 2(4) cannot apply to the prohibition on executing the contract during the standstill period because that is an obligation not to do something (Reg 32(3)). Regulation 2(4) is probably poorly drafted but it is not redundant because there are positive obligations it could apply to like the obligation to supply information in accordance with Regulation 32(7).

I think the standstill period needs to be unambiguously stated in Regulation 32 to avoid confusion and error. Failure to observe the standstill period is the very thing which could lead to a Court ruling of "ineffectiveness" which is the worst possible outcome for public authorities.

Barony Consulting Group Limited

Consultation on the Remedies Directive

In recent years, we have seen a shift in interpretation of the EU Directives on procurement where in effect the gap between Part A and Part B services has been narrowed. Indeed the thresholds are now common and the CPV status has been refined.

In addition, the Commission Interpretative Communication SEC(2007) 1514

Commission Staff Working Document reinforces this convergence. As we have communicated many times in the past to OGC, in our view, Part B services represent major risks to HMG and the wider public sector regarding compliance with the EU Procurement directives.

The position relates to the UK's stance of minimum compliance with EU Directives.

Therefore, how can you take a position of exempting Part B services from the Remedies Directives when these represent the major areas of breach and the following content from SEC ( 2007) 1514 exists?

Frequently asked questions concerning the application of public procurement.

What are the obligations deriving from the principles of transparency and non-discrimination?

According to the case-law of the European Court of Justice the principles of transparency, equal treatment and non-discrimination require an adequate publicity of the public authority's intention to conclude a public contract or a concession. The advertisement may be limited to a short description of the essential details of the contract to be awarded and of the award method together with an invitation to contact the public authority. It is essential that all potentially interested service providers have the possibility to express their interest in bidding for the contract.

The public authority may then select in a non-discriminatory and impartial way the applicants to be invited to submit an offer and eventually negotiate the terms of the contract or of the concession. During such negotiations all operators should be on an equal footing and receive the same information from the public authority.

In accordance with the ECJ case-law on effective judicial protection, at least decisions adversely affecting a person having or having had an interest in obtaining the contract, such as any decision to eliminate a bidder, should be subject to review for possible violations of the basic standards derived from primary Community law.

When applying these principles the public authorities can inspire themselves by the Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives. As already stated, this Communication also encompasses contracts only partially covered by the Directives, such as health and social services. Since the Communication contains a general interpretation of the principles of transparency, equal treatment and non-discrimination, it can also be used as guidance for concessions, bearing in mind that these usually represent a value well above the thresholds of the public procurement Directives and therefore normally require a publicity in a medium with European-wide coverage.

Surely the general transparency provisions of EU law mean that Part B services are covered by the Remedies Directive? Failure to do will inhibit many of HMG's other policies in health, education and social care.

Central Government Centre of Procurement Expertise

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

Regulation 32(16)(c)

3.8 Article 2a(2) of the new Directive allows Member States to choose the standstill period to be applied if the award decision is sent by post - either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers or candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision. In our view, it would be difficult for contracting authorities to calculate the standstill period from the date(s) of receipt with any accuracy. To ensure legal certainty, we believe that it would be preferable to specify a standstill period of 15 calendar days where communication with at least one economic operator is by post. We would be grateful for stakeholders' views on this approach.

The detail in bold, does not match drafting - see comment on draft regulation 32(16)

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4)..

Prefer expressly implementing article 2 (4) as this is clearer for buyers.

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System

Draft regulation 48 is confusing e.g. if 48(4) applies how can 48(5) apply?

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

Agree with the Commission's view

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

Do not see the purpose of notifying economic operators who have been notified that they have not been selected previous at PQQ stage.

3.28 A mid-way option of issuing information to tenderers concerned, but not candidates, is not considered attractive because there is no express requirement on a contracting authority to notify unsuccessful candidates when selection decisions are made, and accordingly it is quite possible that there will be candidates "concerned" at the point when the award decision is made. The approach taken in the accompanying draft regulations is based upon the Scottish Government's previously broader policy of issuing information to all economic operators. However, this is provided as an example only and is not intended to imply that that is our favoured approach.

Think that all tenderers should be notified and candidates concerned

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

Agree with drafting

SUGGESTED AMENDMENT TO REGULATIONS

Section 32 (3)

Think this should still say "proposes" otherwise looks like a fait accompli with no recognition of legal rights and possible action

Section 32 (6)(b)

Think this should read "awarded under a framework agreement" [not "based on a framework agreement"]

Section 32 (7) (b)

Is this not covered by paragraph 6 above? Why the difference between "tenderer concerned" and "tenderer" at 6(a) above?

Section 32(9)

Replace "shall" with "must"

Section 32(16)(c)

(i) where the notice referred to in paragraph (1) is sent [only] by facsimile or by electronic means, 10 days from the date on which the notice is sent to the economic operators; or

(ii) where the notice referred to in that paragraph is sent by post, or by a combination of facsimile or electronic means and post, 15 days from the date on which the notice is sent to the economic operators;

Consultation question 2 states 15 calendar days with effect from the day following the date from notice

Throughout I would suggest defining as either calendar days or working days

Section 47 (9)

Should "regulation" read "Part"

Section 47(16)

Insert a comma between "against the Crown" and "the Court"

Section 47 (18)

"contract " - could be read to mean a contact must comprise all three. Suggest replacing "and" with "or"

"tenderer concerned" - replace "is" with "it"

Section 48(7)(a)

(7) The third ground for ineffectiveness is that-

(a) the contract is a specific contract based on a framework agreement or a contract awarded under a dynamic purchasing system;

.

(b) the contract was awarded in breach of a duty imposed by regulation 19(7)(b), 19(8) or 19(9), in the case of a specific contract based on a framework agreement, or regulation 20(11), 20(12), 20(13) or 20(14), in the case of a contract awarded under a dynamic purchasing system; and

Suggest that the highlighted words should read "awarded under a framework agreement"

CharteredInstitute of Purchasing and Supply

Question 1. The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

The CIPS responds on behalf of practitioners and our main concerns are that the new legislation should be easily read and understood by practitioners and that there is both clarity and certainty in the Regulations.

Our concern is for professional purchasers working in the many hundreds of small organizations who may let only one or two EU contracts per annum and where the purchasing officer has none of the legal or other professional support staff available to purchasers in the major purchasing organizations. For these buyers it is particularly important that the legislation may be easily read and understood.

An example of how the rules could be made more readable would be if under Paragraph 48 6a instead of cross referencing to regulations 32(3), or 47(17) the paragraph referred to content of these regulations egg standstill period.

Some examples of where further clarity is concerned are included under the detailed comments below.

Question 2. The Scottish Government seeks stakeholder's views on the approach taken in regulation 32(6) and 32(7).

The CIPS supports the approach taken in regulation 32(6) and 32(7)

Question 3. The Scottish Government seeks stakeholders' comments on regulation 32(16) (c) as drafted.

The CIPS agrees with the view that a standstill period of 15 days should be specified where communication to at least one of the economic operators is by post

Question 4. The Scottish Government seeks stakeholders' comments on regulation 47 (6) as drafted

The CIPS agrees that the approach taken should be consistent with that taken by the UK and that applications under the Scottish Regulations should be restricted to the Scottish Courts.

Question 5. The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2 (4).

The CIPS believes that purchasers require a degree of certainty in these matters and support the implementation of Article 2 (4)

Question 6. The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

Our preferred option is that the new rules should apply to new procurements beginning after the 20th December 2009. For ease of operating this transitional process there should also be included within the regulations a clear definition of what is meant by "the beginning of the procurement process". For contracts where a Contract Notice is issued it may be appropriate to take the date the notice was sent to the OJEU as a suitable date but for a Utility that goes to the market by selecting suppliers from a list of Pre Qualified economic operators the rules may need to be different.

Question 7. The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

For contracts that have not been advertised in accordance with the contracting procedures we have no objection to the start of the procurement being defined as the time when the purchasing authority contacts economic operators to seek expressions of interest.

Question 8. The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System.

Our preferred option would be to apply the same regulations to contracts let under a framework agreement or DPS as those that applied to the letting of the original framework agreement or DPS. This would be consistent with previous transitional arrangements for framework agreements and would be easily understood and operated by purchasing authorities.

Question 9. The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

In response to this question the CIPS wishes to confirm its support for the principle of prospective rather than retrospective ineffectiveness.

Question 10. The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

The CIPS preferred option would be to protect any live call off contracts from any challenges provided they were made before the framework was declared ineffective.

This would provide certainty in the contracting arrangements and would help ensure continuity of supply. We note however the comments in paragraph 3.20 that the European Commission are unlikely to find this option acceptable.

Our second option would be the procedure outlined in paragraph 3.20 (iii)

Question 11. The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

The CIPS understands that the new Remedies Directive require a mandatory standstill period for the award of the DPS but not for contracts placed under a DPS. We consider that to apply the mandatory standstill period every time a supplier applies to join a DPS would be expensive and time consuming for purchasers without any potential benefit to other economic operators. Because the purchaser must accept onto the DPS all economic operators that meet the relevant criteria the acceptance of any one supplier onto the DPS has no adverse effect on any other supplier so it is unlikely that any supplier would challenge the decision to include a new supplier onto the DPS.

We agree that the European Commission needs to provide clarification.

Question 12. The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

Our view is that the ineffectiveness remedy can only be applied to contracts let under a DPS in a similar manner to contracts let under framework agreements.

Question 13. The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

The CIPS takes the view that the new Scottish Regulations should adopt the rules outlined under Article 2a of the new Directive.

The need to send information only to candidates that have not previously been informed of their elimination would be welcomed by purchasers. This will avoid duplication of work and reduce costs accordingly.

Directive 2004/18/EC gives a definition for "candidates" but a clear definition in these Regulations of what is meant by a candidate for this purpose would be welcome. The advice we have received from the Commission is that for this purpose a candidate is any economic operator that has responded to a contract notice and provided the compliant application but this is not defined in the legislation.

Question 14. The Scottish Government seeks stakeholders' comments on the draft RIA at Annex B

The CIPS has no comment to make

Dundas & Wilson CS LLP

We welcome the opportunity to comment on the Scottish Government's 2nd Consultation Document on the transposition of Directive 2007/66/EC (the Directive).

Dundas & Wilson LLP is a national law firm operating in all three legal jurisdictions within the UK (England & Wales, Northern Ireland and Scotland). We advise both public sector/utilities clients and private sector clients on the application of the EU public procurement rules and refer to the implementing regulations and case-law on a daily basis.

There is a clear desire for greater legal certainty and we strongly recommend that this objective is pursued by the Scottish Government in its approach to transposing the Directive. Whilst we recognise the complexity of the Directive, we believe that the proposed draft Regulations could be simplified further and that some aspects of the approach being adopted by the Scottish Government risk over-complicating this already complicated piece of legislation.

Our response responds to each of the Questions set out in the Consultation Document and includes our suggested alternative amended regulations 32, 47 and 48 of the Public Contracts (Scotland) Regulations 2006 (the Regulations). The suggested amended regulations can be found in Appendix 1.

Our response does not cover the necessary amendments to the Utilities Contracts (Scotland) Regulations 2006. We recognise that the necessary amendments are broadly equivalent, though care will need to be taken with the detailed drafting of the replacement provisions.

Question 1: The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

Regulation 32 (Information about contract award procedures)

We have suggested alternative amendments to regulation 32 of the Regulations (see Appendix 1). These amendments attempt to more accurately reflect the wording of the Directive and to try to clarify and simplify the language of the provision.

There are a number of technical points around, for example:

· the concepts of "tenderers and candidates concerned";

· simplifying the provisions on derogations from the standstill requirement;

· the timing of the standstill period, the first day being the day following the date of dispatch of the notice;

· the more general provision on feedback (15 day provision) applying at any point during the contract award procedure; and

· including a definition of "contract" to simplify the language around provisions applying to public contracts, framework agreements and dynamic purchasing systems. the Directive does not require the "accelerated debrief" required in the current set of Regulations. Accordingly, consistent with our comments in response to Question 13, we believe that regulations 32(4) and (5) are unnecessary provided that contracting authorities are required to notify the exact standstill period to the individual candidates and tenderers concerned as part of the Alcatel letter ("regulation 32(1) notice").

Regulation 47 (Enforcement obligations)

We have suggested alternative amendments to regulation 47 of the Regulations (see Appendix 1). Again, these amendments attempt to more accurately reflect the wording of the Directive and to try and clarify and simplify the language of the provision.

We have not suggested any substantive changes to those included in the Consultation Document. The principal changes we have suggested are:

· Whilst not part of the implementation process, simplifying regulation 47(1) by deleting the reference to "enforceable Community obligation", which is not necessary for the purposes of construction of the Regulations (in our view, and the Regulations should not serve as an enforcement vehicle for general EC Treaty obligations outside the scope of Directive 2004/18, eg in relation to advertising and standstill requirements for Part B services contracts);

· Clarifying and simplifying the provision on time-limits for bringing proceedings and the relevant date for the purposes of the 30 day limitation period;

· Moving the "automatic suspension" provision up to draft regulation 47(10), in terms of the structure of draft regulation 47 (and reflecting it in the following provision in relation to the Court's powers to over-ride the automatic suspension);

· Including the "ineffectiveness" remedy as one of the Court's powers (remedies) under draft regulation 47, tying together that general provision with the specific draft regulation 48 provision on ineffectiveness; and

· including a definition of "contract" to simplify the language around provisions applying to public contracts, framework agreements and dynamic purchasing systems.

Regulation 48 (Ineffectiveness)

We have suggested alternative amendments to draft regulation 48 (see Appendix 1). These amendments attempt to more accurately reflect the wording of the Directive and try to clarify and simplify the language of the provision.

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

We have suggested simplifying paragraph 4 of draft regulation 32 to include the three derogations to the standstill period requirements provided for in the Directive (see Appendix 1).

As regards the need to consider whether, even though the standstill period will not apply in these three circumstances, contracting authorities should still be required to provide information about the contract award procedure, we do not consider it necessary to make any provision for this in the Draft Regulations. Article 41 of Directive 2004/18 is a general provision on informing candidates and tenderers and, in our view, applies - following a request from a candidate or tenderer - at any point during the contract award procedure (as provided for in regulation 32(9) of the Regulations). However, those provisions only apply to the award of contracts for which there has been a "call for competition", ie prior publication of an OJEU contract notice.

Question 3: The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

We have suggested some amendments to draft regulation 32(16)(c) (see Appendix 1) that attempts to more accurately reflect the wording of the Directive.

Question 4: The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

We support draft regulation 47(6).

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

We consider that the approach taken in the draft regulation 47 is not consistent with the Directive and have suggested alternative wording in our amended regulations 47(10) and (11) (see Appendix 1). Subject to those suggested amendments, our preference would be to maintain the existing approach of leaving the courts' discretion in relation to interim measures to the common law.

Question 6: The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

We agree with the suggested transitional policy. The new rules should only apply to new procurement processes beginning after 20 December 2009 (adopting the approach provided for in regulation 49 of the Regulations). However, it would have been helpful to have included provisions in the Draft Regulations.

Question 7: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

We agree with the transitional policy approach (based on r.49(2)(c) of the Regulations).

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System.

We support the second option proposed by the Scottish Government - the ineffectiveness remedy and power to fine contracting authorities should only apply to call-offs from framework agreements or dynamic purchasing systems the procurement of which was commenced after 20 December 2009.

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

We support the approach proposed in regulation 48(2) and consider it unnecessary to refer to the common law doctrine of frustration.

Question 10: The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

We have some reservations over the favoured middle course approach suggested as Option iii). In particular, how the discretion of a court to make a declaration of ineffectiveness in relation to a live call-off contract sits with the mandatory requirement to declare contracts ineffective unless they can be saved by the overriding public interest grounds. What test would a court apply when deciding whether or not to declare a live-call off contract ineffective for the purposes of Option iii) (a)?

Question 11: The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

We agree with the proposed approach of applying the standstill requirements when the Dynamic Purchasing System is first established.

In our view, there are grounds for adopting a position that no standstill period is required each time a new supplier joins a DPS. Whilst it does not appear to be reflected in regulation 20 of the Regulations, Article 33(4) of Directive 2004/18 applies a form of standstill period where a contracting authority is unable to evaluate an application for admission to a DPS within 15 days of the date of submission of the indicative tender from a new supplier. In other words, if the contracting authority cannot evaluate the application within 15 days it is prevented from using the DPS until the evaluation is completed. It may be worth discussing with the European Commission whether that provision makes it unnecessary to apply additional standstill periods, which effectively freeze any call-offs every time a new supplier applies to be admitted to the DPS. In our view, such an approach would not be inconsistent with the objective of protecting "pre-contractual" remedies, as new suppliers applying to join a DPS are doing so after the "contract" has been entered into. Whilst no standstill period would apply, any unsuccessful applicant applying to join the DPS would still have the right to feedback.

As regards call-offs from a DPS, we agree that a similar approach should be adopted to that applied to call-offs under framework agreements.

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

Consistent with our view that a standstill period is not required every time a new supplier applies to join a DPS, we do not consider that the Directive requires that the ineffectiveness remedy be available to new suppliers applying to join a DPS once it has already been set up. In terms of the effectiveness of the approach we are proposing, it is perhaps worth noting that any call-off contract concluded under a DPS at a time when the contracting authority had failed to comply with its obligations under Article 33(4) of Directive 2004/18 would have to be considered as an illegal direct award (assuming it was above threshold). In other words, if a call-off contract was made at a time when the contracting authority had failed to evaluate a new supplier's application within the 15 day period provided for in Article 33(4) of Directive 2004/18.

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

In accordance with the Directive, contracting authorities should only be required to issue "Alcatel letters" to "tenderers and candidates concerned" (Article 2a(2) of the Directive).

Candidates concerned: There should be no requirement to issue the Alcatel letter to those applicants excluded at PQQ stage to whom the contracting authority has already offered debrief information / feedback. Such an approach would not be inconsistent with the wording of the Directive, which refers to the contracting authority making "available information about the rejection of" the application and we suggest adopting the same wording as the Directive in the Draft Regulations.

Tenderers concerned: Equally, there should be no requirement to issue the Alcatel letter to tenderers who have already been "definitively excluded" from the tender process and either have not challenged the decision to exclude them or are otherwise time-barred from bringing any such action. These "tenderers concerned" would include tenderers who have been down-selected during the process (eg. in a staged competitive dialogue procedure) and tenderers who have submitted non-compliant tenders. Again, we suggest adopting the wording of the Directive in the Draft Regulations.

Contract award decision: We suggest that consideration be given to including a definition of "contract award decision" in draft regulation 32 (see Appendix 1). The lack of a precise definition has caused confusion as to whether the Alcatel letter has to be issued following the appointment of the preferred bidder or at a later date shortly before the contract is to be concluded with the preferred bidder.

" Summary of relevant reasons": The Directive does not require an "accelerated debrief" as currently provided for in the Regulations. Our preference would therefore be to remove that additional requirement from the Regulations (ie. delete regulations 32(4) and (5) of the Regulations). Such an approach would also avoid the legal uncertainty as to whether, for the purposes of fulfilling the standstill obligations and the establishing the availability of the ineffectiveness remedy, the contracting authority had informed the unsuccessful tenderer of the " characteristics and relative advantages of the successful tender" (current regulation 32(4)). It would nevertheless be important that the Scottish Government issued guidance on the standstill obligations and the relationship between the standstill period and the availability of the ineffectiveness remedy.

These views are reflected in our suggested amendments to the Draft Regulations (see

Appendix 1).

Question 14: The Scottish Government seeks stakeholders' comments on the draft RIA at Annex B.

We are concerned that the implementation of the Directive, as currently proposed in the Annexes to the Consultation Document, creates an unnecessary level of legal uncertainty.

Whilst perhaps providing support for the legal profession in the current economic climate, it is important that the costs of compliance and risks of litigation are kept to a minimum by the drafting of clear legal rules and by ensuring that implementing domestic legislation does not over-complicate an already complex body of EU legislation. In particular, it is important to ensure that the additional burdens resulting from implementation are proportionate to the objectives to be achieved and minimise the imposition of additional administrative requirements.

East Renfrewshire Council

Question 1: Request for feedback on the draft regulations

No comment

Question 2: Policy on the application of the standstill derogations

Agree with proposal

Question 3: Duration of the standstill period

Agree that this approach provides greatest degree of certainty

Question 4: Restricting applications under the Scottish Regulations to the Scottish Courts

Agree that challenges to Scottish procurements should only be made in the Scottish Courts

Question 5: Court discretion not to grant interim measures

Please note that the references throughout the consultation to regulation 47(10) should, I think, be to 47 (12). Courts should definitely have the discretion not to grant interim measures. I do not believe that the wording in 47(12)(a) is not particularly clear. What is meant by "as rapidly as possible"? Decisions on whether to grant interim orders are based on the court's view as to whether or not there is a prima facie case of breach and the time taken by the courts to consider a substantive case where an economic operator is claiming breach of the procurement regime, can run to many many months, if not years. Unless there are plans to introduce some fast track hearing for such cases, then it will have to be recognised that the grant of interim orders could delay a procurement process for a substantial period of time and this should be considered by the court.

It is preferable to implement Article 2(4) of the Directive as suggested in draft regulation 47(12), rather than maintaining the existing approach of leaving the courts' discretion not to grant interim measures to the common law. This approach gives greater clarity to the powers of the courts. However, it may be advisable to clarify that the procurement process should be delayed only where the applicant has demonstrated that there is a strong prima facie case of breach.

Question 6: Transitional policy for migrating to the new rules

Agree that the most sensible approach is for the new rules to apply to all contracts where Contract Notice is placed after 20 December 2009. This provides certainty.

Question 7: Transitional policy in respect of illegal direct awards

Agree with proposed approach

Question 8: Transitional policy in respect of contracts awarded under a framework or Dynamic Purchasing System

Agree with proposed option to use a similar approach to the one used in Regulation 49(3).

Question 9: Legal effect of ineffectiveness

Think this is a reasonable approach. The numbering is wrong. In Para 3.19 references to draft Regulation 48(10)(b) should be to 48(9)(b) and to Regulation 48(11) should be to 48(10). I consider the word "terminate" would be better than "avoid".

Question 10: Policy on call-off contracts where a framework agreement is declared ineffective

Would favour the mid way option.

Question 11: Policy on the application of the standstill requirements to Dynamic Purchasing Systems

Proposals seem reasonable. Reference in Para 3.23(ii) should be to Regulation 48(8), not 48(9).

Question 12: Policy on the application of ineffectiveness to Dynamic Purchasing Systems

Proposals seem reasonable

Question 13: Policy on limiting certain communications to tenderers and candidates concerned

Although it would appear to be the safest option to communicate to everyone who has expressed an interest, would it be possible to restrict this to those economic operators who have provided email contact details if they have not progressed beyond the stage of expressing an interest in a restricted procedure (or downloaded the contract documents in the open procedure). This would ensure that in most cases, the contracting authority would be able to rely on the shortened 10 day standstill period

.
Question 14: Draft Regulatory Impact Assessment

Procurement law is becoming more and more onerous for local authorities and although I fully support the requirement for equal treatment, there has to be some recognition that ITT documentation cannot be perfect and that the amount of time spent on preparing an evaluation methodology will be directly related to the value of the contract. The cost to the public purse in defending challenges can be extremely high. The cost to public authorities in defending a challenge can run to many thousands of pounds, even when their position is ultimately vindicated by the courts, particularly where an economic operator challenges a procurement exercise in the Court of Session, rather then the Sheriff Court, a factor over which the public authority has no control.

Glasgow City Council

Introduction

This document is the formal response from Glasgow City Council to the Scottish Government's second consultation on the implementation of the EU Remedies Directive, Directive 2007/66/EC.

Glasgow City Council is a contracting authority for purposes of the European procurement rules and this submission is primarily based on that position. However, the Council also owns a number of subsidiary bodies, mostly limited liability partnerships, which also operate as economic operators. The Council is a major purchaser of works, goods and services with an annual procurement spend in the region of £1.3 billion.

General comment on the consultation document

The Council would point out that the transposition tables in part 2 of the consultation document are incorrect in a significant number of places, in that the cross references to the new regulations explaining where particular provisions have been implemented are wrong in very many instances and appear not to have been updated to reflect the re-numbering of the draft provisions where new draft provisions have been inserted. This significantly complicated attempts to follow the proposals.

Feedback on the consultation:

The consultation document sets out a series of 14 questions in part 3. The Council's response to these 14 questions are as follows:

Question 1: The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

Response : The draft regulations appear fit for purpose.

In terms of the specific drafting points identified by the use of square brackets, we support the inclusion of most of the bracketed text in the final version of the Regulations. However, in our opinion regulation 48(7)(c) would be clearer if it instead stated "the estimated value of the contract at the relevant time (net of value added tax) equals or is greater than the relevant threshold." The use of the word "avoids" in regulation 48(2) would also be opaque in its meaning to most readers, although we accept that it is the correct technical term. In keeping with the general approach we detect of trying to make the legislation as legible and comprehensible as possible, we feel it might be better to instead include a narrative explaining that an order for ineffectiveness ends the legal rights and obligations in question.

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

Response: This question covers two separate areas - application of mandatory standstill period, and rights to information.

The Council does not consider that it is necessary to implement any of the three derogations in question, at least in the way suggested. As a matter of good practice, this Council does and will continue to ensure that all candidates and tenderers are fully informed as to the progress of their own application/tender as well as the status of the procurement activity as a whole, at each significant stage of the process. Any administrative savings generated through not having to notify all parties at all stages of the process would be more than offset by the extra administrative burden of having to keep track of each individual operator's status in terms of entitlement to information. We consider that the general principles of openness, transparency and even-handedness are better served by retaining the position whereby all operators who had expressed an interest in a given procurement are entitled to full information at each relevant stage.

In terms of the standstill period, we think this should apply to the award of a specific contract under a framework agreement where a mini-competition has been held (in terms of current Regulation 19(7)(b)) but agree that it would not be necessary for direct awards under a framework (i.e. in terms of Regulation 19(7)(a)). Our interpretation of the expression "where an OJEU contract notice is not required" is that this would cover, for example, Part B services and is not intended to cover procurements which are below the relevant threshold. We would not support extending the standstill provisions to procurements below the relevant EU threshold.

In terms of providing information, our primary position as stated above is that everyone should be told everything at each stage.

Question 3: The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

Response: The Council agrees with the policy of having a date which can be ascertained with certainty by the contracting authority.

However, the current practice of this Council (and we are probably not unique in this) is that we email or fax award notices and letters to unsuccessful parties and then follow this up by postal delivery of the notices and letters. On one reading of the regulation as currently drafted, this means that the notices are not sent "only" by facsimile/electronic means, and therefore the longer period applies. We think the intention of the drafting is to say that provided all interested parties are notified by facsimile/electronic means, the shorter period should apply. But in the circumstances of email followed by posted letter, we do not think the regulation as drafted achieves this objective in a clear and unambiguous way.

Question 4: The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

Response: the Council wholeheartedly supports regulation 47(6) as presently drafted and agrees that only the Scottish courts should have jurisdiction in these matters.

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

Response: the Council believes it is clearer to include the grounds specified in Article 2(4) within the Regulations (but would point out that they appear to have been included in draft regulation 47(12) and not 47(10) as specified in the consultation document).

Question 6: The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

Response: the Council agrees that the new rules should only apply to procurements which begin after 20 December 2009.

Question 7: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

Response: we agree that seeking expressions of interest is the right trigger point in relation to illegal direct awards, but the drafting of the relevant provisions would need to clearly differentiate between taking this sort of action and from, for example, taking soundings from the market ahead of a legitimate procurement.

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System

Response: we feel that the policy considerations described in paragraph 3.14 of the consultation document apply equally to specific contracts awarded under a framework agreement or dynamic purchasing system - in other words, if the new rules apply to such contracts but the parent framework agreement (or DPS) was set up under the old rules, then the contracting authority would be subject to the new penalties without having had adequate opportunity to protect itself. We therefore think that a call-off contract should be governed by the same rules as apply to the parent framework agreement or DPS.

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

Response: we agree with the policy decision that the regulations should only provide for prospective ineffectiveness.

In terms of how this is implemented, we have commented under question 1 above on the wording of draft Regulation 48(2). We agree with the approach adopted in relation to giving the courts flexibility to address future rights and obligations between the parties to the contract avoided and in relation to previously agreed terms addressing possible ineffectiveness. We would, however, note that these provisions are covered in draft Regulations 48(9)(b) and 48(10) respectively, and not in 48(10)(b) and 48(11) as stated in paragraph 3.19.

Question 10: The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

Response: The Council's preferred option here is option (iii), i.e. to provide that call-off contracts in this situation should be treated in the same way as "freestanding" contracts. There are potentially wide ramifications in avoiding all call-off contracts already in place under a framework agreement which the courts would not be able to take full cognisance of or deal adequately with in the absence of such flexibility. The courts would, of course, be able to apply such flexibility so as to give effect to the Commission's view that the call-off contracts would normally suffer the same fate as the parent framework agreement, but option (iii) would allow them to permit exceptions to this general rule on a case by case basis.

We note the comments at paragraph 3.21 that this approach is not strictly speaking within the scope of the Directive. However, in our opinion it is compatible with European law and would provide a degree of clarity in domestic law which would otherwise be lacking.

Question 11: The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

Response: The Council does not presently have a DPS so our response to this question is more by way of observation. However, we think it would be helpful to allow contracting authorities to apply the standstill period if they wanted to do so, if this would help to safeguard an established DPS from future challenge.

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

Response: As noted above, the Council does not presently have a DPS so again our response to this question is more by way of observation. However, we can see the logic in not applying ineffectiveness to subsequent admissions to a DPS, given that there are more useful and sensible avenues open to persons aggrieved at decisions relating to such subsequent admissions.

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

Response: as noted above under question 2, we feel that the general principles of openness, transparency and even-handedness are better served by retaining the position whereby all operators who had expressed an interest in a given procurement are entitled to full information at each relevant stage. We therefore support retaining the current scope of regulation 32(1).

Question 14: The Scottish Government seeks stakeholders' comments on the draftRIAat Annex B.

Response: the RIA's conclusion regarding no increased public sector costs appears to be based on a historical assessment of the prevalence of litigation in procurement, a situation which has changed dramatically with the current economic downturn. We also feel that the implementation of the Remedies Directive will in itself make litigation more likely in future, and the Costs analysis of the RIA should reflect this.

Highland Council

Question 1: The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

The Highland Council is content with the proposed regulations as currently drafted

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

Highland Council agrees with this approach

Question 3: The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted. The Highland Council is content with the current drafting and this proposal

Question 4: The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

The Highland Council agrees with this approach

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

The Highland Council's view is that draft regulation 47 (10) should be implemented.

Question 6: The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

The Highland Council's view is that the new rules should apply only to processes commenced after 20th December 2009.

Question 7: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

The Highland Council agrees with this approach

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System

The Highland Council's view is that taken to regulation 49(3) is the appropriate one to take with regard to this question

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

The Highland Council's view is that prospective rather than retrospective ineffectiveness is the most appropriate position.

Question 10: The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

The Highland Council's view is that the third option should be pursued

Question 11: The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

The Highland Council sees no advantage to any interested party in implementing a new standstill period on every occasion on which a new provider is introduced into an exiting Dynamic Purchasing System

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

The Highland Council agrees with the Scottish government's approach in this question.

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

The Highland Council's view is that award information should be issued only to those economic operators who have submitted PQQs. Issuing information more broadly than that is pointless because those operators not interested enough to, or not capable of, submitting a PQQ will have no real interest in who was eventually awarded the contract(s). It would present us only with a bureaucratic burden and an invitation to vexatious challenges we could well do without.

Question 14: The Scottish Government seeks stakeholders' comments on the draft RIA at Annex B.

The Highland Council has no particular comments on this matter.

Maclay Murray & Spens

1. INTRODUCTION

Maclay Murray & Spens LLP welcomes this opportunity to give its views on the Scottish Procurement Directorate's (SPD) draft amendments to the Public Contracts (Scotland) Regulations 2006 and the Utilities Contracts (Scotland) Regulations 2006, designed to implement in Scotland Directive 2007/66/EC (the "2007 Remedies Directive"). These comments have been prepared by our European, Competition and Regulatory team and are based on our experience of advising both public and private sector client in matters of public procurement law. In the two years that have passed since the adoption of the 2007 Remedies Directive, the prevalence of procurement law challenges has already gathered considerable momentum, with tenderers showing greater awareness of the remedies currently available. However, with the implementation of the 2007 Directive, the scope for legal challenge of procurement processes will broaden significantly and the new Scottish rules are likely to be frequently put to use. We therefore consider this to be a very important consultation.

2. GENERAL

We also responded to SPD's first consultation on the implementation of the 2007 Remedies Directive, in November 2008. Please refer to that response for our broad views on the 2007 Directive and its implementation. The comments in this response address SPD's current draft amendments and the specific questions asked in this consultation.

However, as with our response to SPD's first consultation, our comments below in relation to the implementation of the 2007 Directive in Scotland are caveated by an over-arching consideration that the new rules should, insofar as possible, be uniform throughout the UK, in order not to create an over-complicated, dual legal framework for suppliers operating on both sides of the border.

Our responses to the particular questions posed in the consultation document are set out below. We have only included those questions on which we have a particular view. In respect of consultation questions not included here, we have no comment on SPD's proposals.

3. COMMENTS ON PARTICULAR CONSULTATION QUESTIONS

Below are our responses to SPD's specific consultation questions.

Question 1: Request for feedback on the draft regulations

The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

We note that SPD's current draft of Regulations 32, 47 and 48 is significantly different from the draft amendments to the Public Contracts Regulations 2006 and the Utilities Contracts Regulations 2006 recent consulted upon by OGC in England. We would prefer to see, to the furthest possible extent, an alignment of the two sets of rules. That principle should only be departed from where there is a need for materially different rules (for instance in order to take account of differences between the Scottish and English legal systems), and not simply a result of different drafting styles.

Question 2: Policy on the application of the standstill derogations

The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

We agree generally with the suggested approach. Our one concern is that the effect of Regulation 32(6)(b), read together with Regulation 32(8), is that contracts awarded under framework agreements ("call-offs") would not be the subject of any debriefing obligation upon the contracting authority. Call-offs made following a re-opening of competition (in multi provider frameworks) are often of very significant value and, in our view, should be subject to a debrief obligation. Many frameworks are sometimes abused and can be used as a means of disguising breaches of the procurement rules. No-one wants to waste time, but there is a real risk of unaccountability if tenderers have no insight into the authority's procedure. We note, however, that contracting authorities would only be protected against the risk of ineffectiveness of above-threshold contracts called off under a framework agreement if they have complied with the debriefing and standstill obligations set out in draft Regulation 48(8) (see also draft Regulation 48(7)). If that proposed rule is adopted, that would partly address our concerns expressed here.

Question 3: Duration of the standstill period where communication is by post

The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

Regulation 32(16)(c)(ii) as currently drafted could be interpreted to mean that the longer, 15-day standstill period will apply where a contracting authority has notified all economic operators by fax/email and then followed up by sending the same notification by post. This is not the intention, as we understand it. We would propose instead using the wording;

"where the notice referred to in that paragraph is sent to at least one of the economic operators by post only, 15 days from the date on which the notice is sent to the economic operators"

This suggested wording would allow deleting the word "only", currently in square brackets, from Regulation 32(16)(c)(i). We believe that would make the meaning of Regulation 32(16)(c)(i) clearer.

Question 4: Restricting applications under the Scottish Regulations to the Scottish Courts

The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

We are in favour of this proposal. On a broader view, however, we wonder if the Scottish Government may have missed an opportunity here, to review the framework for dealing with public procurement law challenges. We believe there are strong arguments to support the creation of a specialist procurement tribunal which could hear complaints from aggrieved tenderers quickly and, compared to the civil courts, cheaply. Under the current system, the costs involved in challenging a procurement procedure in court is often prohibitive, especially in respect of contracts of relatively low value, albeit the problem is not as acute in Scotland as in England and Wales. A specialist tribunal could also bring the benefit of having specific procurement expertise.

Question 5: Court discretion not to grant interim measures

The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

The proposed wording in Regulation 47(12) is not a precise reflection of the test currently used by the Scottish courts in deciding whether to grant interim orders. We believe that it would be more beneficial not to include the draft Regulation 47(12), in order that courts can continue to decide such cases using their expertise, rather than introducing a slightly different statutory test only applicable to procurement cases.

Question 6: Transitional policy for migrating to the new rules The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

We are strongly in favour of SPD's proposal.

Question 7: Transitional policy in respect of illegal direct awards

The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

We agree with the proposal to apply the new rules to contracts where economic operators were first approached after 20 December 2009. In respect of illegal direct awards the procedure for which was commenced prior to that date, such contracts of long duration are still vulnerable following the ECJ's decision in C-503/04, Commission v Germany.

Question 8: Transitional policy in respect of contracts awarded under a framework or Dynamic Purchasing System

The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System.

We would favour an approach where all call-offs under a framework agreement were made under the rules which applied when the framework agreement was procured. The current rules would thus continue to apply also to call-offs made after 20 December 2009 under frameworks set up prior to that date. We believe this solution would best ensure clarity and legal certainty. In any event, the impact of this transitional rule is limited given the derogation proposed in draft Regulation 32(6).

Question 9: Legal effect of ineffectiveness

The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

We agree with SPD's proposal to introduce ineffectiveness as a sanction with prospective effect. As discussed at Question 2 above, we also welcome in particular the draft Regulation 48(8) which would seem to us to be a sensible complement to the derogation proposed in Regulation 32(6).

Question 10: Policy on call-off contracts where a framework agreement is declared ineffective

The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

We do not believe that the European Commission's apparently favoured option, that call-off contracts automatically would share the fate of the framework agreement in the event the latter is deemed ineffective, would produce the best results in terms of legal certainty and fairness to third parties. Given that option (i) in the consultation appears to be unavailable due to the Commission's adverse view of it, we are in favour of the halfway-house solution proposed in option (iii).

Question 11: Policy on the application of the standstill requirements to Dynamic Purchasing Systems

The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

Our view is that it would be excessive to have a standstill rule applying in these circumstances.

Question 13: Policy on limiting certain communications to tenderers and candidates concerned

The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

Draft Regulation 32(1) appears only to place an obligation on contracting authorities to notify tenderers and candidates of its decision to award the contract, as opposed to decisions to exclude/deselect tenderers at an earlier stage of the procedure. We believe that there ought to be an obligation also to notify excluded/deselected tenderers as soon as possible after any such decision is taken, throughout the procedure, and to offer a debrief to tenderers so excluded/deselected. (This would also appear better to comply with Article 41 of Directive 2004/18.)

We note that the wording in draft Regulation 32(1), "…its decision in relation to […] the award of the contract" could be read as relating to a broader range of decisions than only the award decision. This wording is of course already (largely) contained in the current regulation 32(1); however this would have been a good opportunity to clarify exactly what decisions it refers to. It is not clear to us, for instance, if it might include decisions to exclude/deselect individual tenderers; but if that is the case, the draft Regulation 32(1) would have the effect that all candidates and tenderers would have to be informed of every such decision.

We favour SPD's option (ii) in paragraph 3.27 of the consultation (which is the option adopted in draft Regulation 32(1) and 32(2), obliging contracting authorities to send notification and attendant information to "all candidates and tenderers" of its decision in relation to the award of the contract. Although in many cases the information to be provided would not be immediately relevant to tenderers excluded/deselected at an earlier stage (for instance information as to the scores of the winning tender), there are likely to be instances where a potential procedural breach may become apparent to an excluded/deselected tenderer only once the final award decision is made. This benefit appears to us to outweigh any inconvenience to contracting authorities; especially considering that this proposed option would not result in extended standstill periods or delays.

With regard to Regulation 32(2), we are uncertain of how "a summary of the reasons…" required in Regulation 32(2)(d) relates to the requirement to provide "the reasons…" in regulation 32(4). There is already considerable uncertainty as to the meaning of "the characteristics and relative advantages" in the current Regulation 32(4), and it would seem to add further confusion to introduce a requirement for "a summary" thereof in regulation 32(2), in addition to maintaining the current requirement in Regulation 32(4). We presume that there is a difference in the level of detail required under Regulation 32(2)(d) and Regulation 32(4); if not, it would seem the proposed Regulation 32(2)(d) would make Regulation 32(4) redundant. This would benefit from clarification. Overall, however, we are sympathetic to what this is aimed at achieving, given the minimalistic approach some contracting authorities currently adopt to giving information upon tenderers' request; an approach which often appears incompatible with the ruling of the Court of First Instance in T-183/00, Strabag.

McGrigors LLP

I have had the opportunity to consider the second consultation issued by the Scottish Government in connection with implementing the EU Remedies Directive. So far as I can determine, the approach taken is identical with that of the OGC although the wording of the Scottish Regulations is slightly different. It appears to me that they achieve the same objects by way of different routes.

As you are aware, I submitted, on behalf of McGrigors LLP, substantial comments to the first consultation. Some of the points we made appear to have been taken on board whilst others have not. That is to be expected in any consultation and I do not intend to revisit the matters which I raised earlier in the consultation process.

The second consultation does pose a few questions regarding the operative date of the new rules and whether they should apply to the procurements commenced prior to 20 December 2009. When the Public Contracts (Scotland) Regulations 2006 were introduced these new Regulations only applied to procurements commenced on or after the operative date of the 2006 Regulations i.e. 31 January 2006. This was a sensible approach and procurement professionals and contractors alike were quite clear where they stood with regard to the applicability of the old and the new rules. It is my strongly held view that a similar methodology should be employed with regard to implementation of the Remedies Directive. The new rules should only apply to procurements beginning on or after the operative date of the new Regulations (no later than 20 December 2009). It is my view that, in the interests of consistency, this should also apply to illegal direct awards.

Frameworks fall within a slightly different category. It is my view that the new rules should only apply to procurement processes for framework agreements commenced on or after the date on which the new Regulations come into force. However, I think the Regulations should be applied to call off contracts on or after the operational date of the new Regulations even although the framework agreements may have been set up prior to that date. If that approach is not adopted then we will have the position where the old Regulations will continue to apply to call off contracts for a period of four years (or possibly longer in exceptional circumstances) after the date in which the new Regulations come into operation). I think this is only going to give rise to confusion to practitioners and contractors alike.

I am of the view that the most important consideration is that the Scottish Government move quickly to introduce the new Regulations. These Regulations will of necessity be detailed and fairly complicated. A programme of education and training will be required for procurement professionals and contractors so that everyone understands the full extent of the new Regulations and how these might impact upon flawed procurement procedures. It is in the best interests of business generally that we have as long a lead in period as possible to enable the training and education to be meaningful and properly targeted.

NHS National Services Scotland

Thank you for giving NHS National Services Scotland the opportunity to respond to the second consultation on implementing the EU Remedies Directive. Our comments are shown below:

Q.1 The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

A. We would appreciate some clarity regarding the distinction between what is referred to at 32(2)( d) as a "summary of the reasons why the economic operator was unsuccessful". And what is referred to at 32(4). There is no mention at 32(4) of the concept of a summary. Hence we presume that something different is envisaged - having two different levels of detail further confuses what is already an uncertain area. What is envisaged at 32(2)(d)? What is comprised within "a summary"? Also, what are the "characteristics and relative advantages" of the successful· tender, and how is it envisaged that these be summarised? Is 32(4) necessary? And should it only refer to information insofar as not already provided pursuant to 32(2)(d)? Generally, greater clarity and guidance is sought around what will be required by way of notification to unsuccessful bidders. Is-it possible to avoid uncertainty by being specific about what information must be provided at each section? And if it is intended that one set of information is a subset (or summary) of another then this should be explicitly stated.

We suggest that the words "as soon as possible" at 32(1) and 32(10) are replaced with something more practical meaning - for example "as soon as reasonably practicable"

Q.2 The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

A. We consider the approach suggested by the Scottish Government to be an appropriate one.'

Q.3 The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

A. We consider the approach suggested by the Scottish Government to be an appropriate one.

Q.4 The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

A. We agree that it would be appropriate to restrict applications under the Scottish Regulations to the Scottish Courts.

Q.5 The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

A. We consider that maintaining the status quo is preferable to expressly implementing Article 2(4).

Q.6 The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

A. We believe that the new rules should apply only to new procurement processes where an OJEU notice is submitted after 20th December 2009.

Q.7 The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

A. We agree that the proposed solution here would be the most appropriate way to proceed in relation to illegal direct awards.

Q.8 The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System.

A. For consistency, and certainty among contracting authorities (and buyers) we consider that call offs under a framework should be subject to the same rules as the framework from which they are to be made. Therefore, only call offs under a framework which is subject to the new rules (those frameworks advertised after 20th December 2009) would themselves be subject to those rules.

Q.9 The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

A. We are not supportive of the suggestion that a financial penalty be imposed on contracting authorities (47(13)(a) and 48(9)(a». If there is general support for these, we are not clear regarding the level at which they would be set, and how they would be applied/quantified.

At 48(9) and 48(14) we would suggest it preferable for these provisions to provide that the Court "may" rather than "must" take the steps specified in those sections.

Can we suggest 48(9) ought properly to read "without prejudice to the other powers and duties of the Court". This is only relevant however, if "must" is retained as per the current draft (see comment above).

The concept of "disproportionate consequences" is used at 48(12) in the context of establishing when the Court may decline to make an order for ineffectiveness. We feel there is little clarity around how the Court will assess each set of facts and consequences. Particular queries are:

• How are these assessed?

• For whom must the consequences be disproportionate? And disproportionate to what?

• Is this referring to broader social issues such as employment levels?

Q.10 The Scottish Government seeks stakeholders' comments on the treatment of live calloff contracts if a framework agreement is declared ineffective.

A. After much consideration we feel that the mid-way option is the most preferred of the options presented.

Q.11 The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

A. We have no comments to make in relation to the approach in respect of Dynamic Purchasing Systems, and the perceived usefulness of a standstill period.

Q.12 The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

A. We have no comments to make in relation to the approach proposed in respect of Dynamic Purchasing Systems and the approach to implementing the ineffectiveness provisions.

Q.13 The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

A. We believe that it should only be those parties which submit tenders who should receive information relating to a contract award decision.

Q.14 The Scottish Government seeks stakeholders' comments on the draft RIA at Annex B.

A. We have no comments to make on the draft Regulatory Impact Assessment.

Renfrewshire Council

Question 1: The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

Response - The general approach of incorporating the changes in consolidated regulations is welcomed.

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

Response: Given the decision in the recent case of Federal Security Services v Chief Constable for the Police Service of Northern Ireland and Resources Group Limited 2009, should draft regulation 32 (7) (a) be amended particularly in relation to high value Part B services contracts that might attract cross border interest?

Question 3: The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

Response - Usually, the letter containing the notice of an award decision will be sent by facsimile with a "hard copy" following by post. In such circumstances, the 10 calendar day standstill would apply. However, to avoid any confusion on this, it is suggested that the word "only" which appears in brackets and is being considered for inclusion in Regulation 32 (16) (c) (i) should not be included. It is suggested that where notices are sent on different dates, the 10 or 15 day period should run from the date on which the last notice is sent and both Regulations 32 (16) (c)(i) and (ii) should include specific provisions to that effect.

Question 4: The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

Response - Agreed that only the Scottish Courts should have jurisdiction to deal with applications under the Scottish Regulations.

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

Response - Agreed that the usual common law test should be applied on whether an interim order should be granted (however, it appears that this question actually relates to draft Regulation 47 (11)).

Question 6: The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

Response - The suggested policy is agreed. However, clarification of what is meant by "beginning after" would be useful.

Question 7: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

Response - In principle this is agreed. However, in some cases, around the time of transition, it may not be easy to establish when economic operators were first contacted.

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System

Response - It is suggested that the current rules should apply to call-offs under a framework agreement or dynamic purchasing system that has been established before 20 December 2009.

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

Response - Approach agreed in principle, however, it appears that the references to Regulations 48 (10) (b) and 48 (11) should in fact be 48 (9) (b) and 48 (10).

Question 10: The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

Response - Given the view of the Commission, the midway option outlined at (iii) above would the preferred approach.

Question 11: The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

Response - It is suggested that the appropriate time for a standstill period would be when the DPS is being established only and that a requirement for a standstill period each time a new supplier joins would be unduly onerous. The question of who should be notified would also arise. Nonetheless, if it is decided that a standstill period should be applied whenever a new supplier joins the DPS, it is suggested that the standstill should apply in respect of the newly admitted supplier(s) only and have no effect on any previously admitted suppliers.

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

Response - It is suggested that the remedy of ineffectiveness would be appropriate for contracts awarded under a DPS but not for the establishment of the DPS itself given that aggrieved suppliers always have another opportunity to apply to join the DPS.

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

Response - In the interests of transparency, and in the absence of any obligation following the selection stage to notify candidates who have not been selected, the broader approach as included in the draft regulations would seem most appropriate. Nonetheless, it is recognised that this is onerous and goes beyond what is strictly required by the directive.

Question 14: The Scottish Government seeks stakeholders' comments on the draft RIA at Annex B.

Response - The RIA appears to present a balanced view of the likely effects of the amended regulations.

Scottish Environmental Services Association

SESA is the sectoral trade association for Scotland's managers of waste and secondary resources, a sector with an annual turnover of around £9 billion in the UK. SESA's Members seek to align economic and environmental sustainability through delivering compliance with relevant EU waste and environmental law.

General comments

At the time of the first consultation on the implementation of the EU Remedies Directive, SESA's Members welcomed the formal adoption of the standstill procedure to enable illegal procurement processes to be challenged. SESA also welcomed the introduction of a concept of 'ineffectiveness' where illegal direct awards had been made. SESA's Members were however concerned about attempts to introduce the retrospective cancellation of a lawful contract, which could for example prove completely impractical under circumstances where the construction of physical assets had already begun. SESA also sought further clarification of how prospective contract cancellation would work in practice where assets had been constructed using a long-term PFI contract to underpin their financing.

SESA notes that the Office of Government Commerce has recently consulted on these issues in England and Wales and been in broad support with the views of industry, shared by SESA as well as by the CBI. SESA supports the CBI's position in England and Wales and believes that the Scottish Government should seek to coordinate its implementation of the EU Remedies Directive so as to align processes with those elsewhere in the UK.

Scottish Local Government Procurement Forum

Question 1: The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

Question 3: The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

Question 4: The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

Question 6: The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

Question 7: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

Question 10: The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

Question 11: The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

Question 14: The Scottish Government seeks stakeholders' comments on the draft RIA at Annex B.

Any Additional Comments:

Sheriff Court Rules Council

Transposition table : The terminology used in the comments at article 2d and 2e is confusing in respect that the use of the word 'fine' (at 2d) implies a penalty for a criminal offence. The use of 'civil financial penalty' throughout may avoid any ambiguity.

The Draft regulations revise Part 9 of the Regulations governing applications to the Court by amending regulation 47 and introducing a new regulation 48 on

ineffectiveness.

Content of regulations: some minor matters which may require to be considered in due course by SCRC

• Draft regulation 32 - no comment, no relevant matters for SCRC consideration.

• Draft regulation 47 - any application under this section would appear to be an ordinary cause action for damages. The Court of Session procedure will require to be considered also as this differs from sheriff court procedure. Michael Anderson, Lord President's Private Office will require to comment on their behalf.

• Draft regulation 47(6)

Agreed it is appropriate to restrict applications under the Scottish Regulations to the Scottish Courts.

• Draft regulation 47(7)(a) - members may wish to consider the need for any rules to make provision that the applicant aver specific details under this section and any specific averment required by an applicant seeking extension of time limits

• Draft regulation 47(10) - Court discretion not to grant interim measures - draft regulation expressly implements Article 2(4) - views as to whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4). No comment, this is a matter of SG policy.

• Draft regulation 47(19)- In OGCs draft regulations (part 9 applications to Court), section 47N makes reference to the imposition of a 'civil financial penalty'. I suggest that this terminology would be appropriate for replication throughout the Scottish regulations to avoid any ambiguity. The OGC regulations go on to outline the method of recovery. I suggest that the Scottish regulations should contain the provision that any civil financial penalty imposed will be recovered by civil diligence which is the normal procedure in Scotland for such matters. You may be aware that Scottish Courts are not involved in the enforcement of civil court decrees in Scotland and there is no precedence for this as far as I am aware. Scottish Court Service will have concerns if Scottish Courts are to become a form of 'enforcement agency' for this civil penalty and will no doubt discuss with you the operational and financial impact of departing from the norm.

• I note that there is no appeal provision specified in the regulations and can advise that this will, by default, allow appeal to sheriff principal and thereafter court of session under existing procedures. If this meets your policy intention, no amendment will be necessary. Should you wish to limit the scope of any appeal then the regulations will require to specify this.

Transitional policy

The new Directive requires the new rules to be implemented by 20 December 2009. I agree that the new rules should apply only to new procurement processes beginning after 20 December 2009.

Comment on draft RIA: The terminology used in Background paragraph, bullet point 2 and 3 is contradictory and confusing in respect that the use of the word 'fine' implies a penalty for a criminal offence. The use of 'civil financial penalty' throughout may avoid any ambiguity.

Tayside Procurement Consortium

Question 1: The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

Question 3: The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

Question 4: The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

Question 6: The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

Question 7: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

Question 10: The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

Question 11: The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

Question 14: The Scottish Government seeks stakeholders' comments on the draft RIA at Annex B.

Any Additional Comments:

University of Edinburgh

General Comment

The Higher Education sector collaborates for some contracts across the UK, e.g. for research equipment and is probably not be the only sector so to do. It will be potentially confusing for both suppliers and procurers if there are two different interpretations of the Remedies Directive in England and Scotland. I would therefore urge that there is close consultation between the English and Scottish administrations to ensure that differences in interpretation are minimised and the implications of any differences properly understood.

Question 1: The Scottish Government seeks general comments on any aspect of the draft regulations 32, 47 and 48.

The amended wording is mostly clear, however it would be useful to provide more clarity on the timing related to electronic and hard copy communications (see Q3 below)

Question 2: The Scottish Government seeks stakeholders' views on the approach taken in regulation 32(6) and 32(7).

I support the principle of specifying that there need be no standstill period in the situations defined. However, in the interests of efficiency, consideration should be given to minimising the need for contracting authorities to provide information. For contracts below the OJEU threshold, the cost and effort of providing of information could be out of proportion to the value of the contracts

Question 3: The Scottish Government seeks stakeholders' comments on regulation 32(16)(c) as drafted.

I would support the approach of specifying a 15 day period where communication is by post or by a combination of post and electronic means; and a 10 day period where communication is solely by electronic means

Question 4: The Scottish Government seeks stakeholders' comments on regulation 47(6) as drafted.

Whilst the wording is fine, I believe there remains the possibility of confusion regarding collaborative or framework contracts which are let on a UK basis - whether the letting body is in England or in Scotland. I refer back to the general comment made above.

Question 5: The Scottish Government seeks stakeholders' views on whether the existing approach of leaving the courts' discretion not to grant interim measures to the common law is preferable to expressly implementing article 2(4).

I believe there would be greater clarity if article 2(4) was implemented rather than leaving matters to the courts' discretion under common law.

Question 6: The Scottish Government seeks stakeholders' comments on the suggested transitional policy.

I support the transition proposal that the new rules apply to contract processes beginning after 20 December 2009. It would however be helpful to be clearer as to what point this represents i.e. contract notice, PIN, or any other point. The approach taken in Scotland should be the same as adopted in the rest of the UK

Question 7: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of illegal direct awards.

The approach of stating that these procurements 'begin' with an approach to suppliers for expressions of interest on 20 December 2009 seems the sensible approach. It is difficult to envisage any other approach. The approach taken in Scotland should be the same as adopted in the rest of the UK

Question 8: The Scottish Government seeks stakeholders' comments on suitable transitional provisions in respect of contracts awarded under a framework agreement or Dynamic Purchasing System.

I believe that the sensible approach is to adopt the principle whereby call-offs from framework contracts established under the old rules, operate to the old rules, and call-offs from contracts established under the new rules operate under the new rules. This promotes continuity of existing contracts and avoids confusion and additional work for contracts already in place.

Question 9: The Scottish Government seeks stakeholders' comments on the approach taken in regulation 48.

I support operating ineffectiveness provisions prospectively rather than retrospectively.

Question 10: The Scottish Government seeks stakeholders' comments on the treatment of live call-off contracts if a framework agreement is declared ineffective.

It is important that contracting authorities supply positions under existing contracts are not threatened and that neither contracting authorities nor suppliers are exposed to excessive liabilities in the event that under the new rules an existing contract is declared ineffective only due to the change of rules. There must be a managed transition from the old arrangements to new (compliant) arrangements for both the contracting authority and the supplier. It is also important that the same approach is adopted across the UK. If Option i) is deemed to be unacceptable, then adoption of Option iii) seems the sensible approach

Question 11: The Scottish Government seeks stakeholders' views on its approach to implementing the standstill requirements in respect of Dynamic Purchasing Systems and the perceived usefulness of a standstill period each time a new supplier joins a Dynamic Purchasing System.

No comment - other than a common approach across the UK should be adopted, when clarity from the EU has been obtained

Question 12: The Scottish Government seeks stakeholders' views on its approach to implementing the ineffectiveness provisions in respect of Dynamic Purchasing Systems and contracts awarded under Dynamic Purchasing Systems.

No comment - other than a common approach across the UK should be adopted, when clarity from the EU has been obtained

Question 13: The Scottish Government seeks stakeholders' views on who should receive information relating to a contract award decision.

The preference is for option 1 such that in multiple stage processes suppliers receive appropriate communication at the point they are knocked out, rather than receiving multiple communications at subsequent stages when they are no longer being considered nor have a direct interest. This would avoid the risks of a 'technical' breach due to failure to duplicate 'rejection' communications.

Question 14: The Scottish Government seeks stakeholders' comments on the draft RIA at Annex B.

There continues to be a concern that the RIA will lead to additional time and cost in the procurement processes, and potentially contracting authorities having to deal with more legal challenges, some of which may be of a nuisance or frivolous nature.