The Public Procurement (Miscellaneous Amendments) (Scotland) Regulations 2023
| Jurisdiction | Scotland |
| Citation | SSI 2023/124 |
| Year | 2023 |
2023 No. 124
Public Procurement
The Public Procurement (Miscellaneous Amendments) (Scotland) Regulations 2023
Made 18th April 2023
Laid before the Scottish Parliament 20th April 2023
Coming into force 30th May 2023
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 1(1) of the Trade (Australia and New Zealand) Act 20231, section 5(2) of the Procurement Reform (Scotland) Act 20142and all other powers enabling them to do so.
PART 1
Introductory
Citation
1. These Regulations may be cited as the Public Procurement (Miscellaneous Amendments) (Scotland) Regulations 2023.
Commencement
2. These Regulations come into force on 30May 2023.
Saving
3.—(1) The amendments made by these Regulations do not apply to a procurement commenced before 30 May 2023.
(2) For the purposes of paragraph (1)—
(a)
(a) a procurement commences when the person carrying out the procurement, or a person acting on that person’s behalf—
(i) publishes an advertisement seeking expressions of interest or offers in relation to the contract to be awarded at the conclusion of the procurement,
(ii) contacts another person to seek an expression of interest or offer in relation to the contract, or
(iii) responds to an unsolicited expression of interest or offer in relation to the contract,
(b)
(b) nothing done in the course of holding a design contest is to be regarded as commencing a procurement in relation to the subject matter of the contest.
(3) In this regulation—
“contract” includes—
(a) framework agreement (as defined by any of the Regulations amended by Part 2), and references to a contract’s award include conclusion of a framework agreement,
(b) dynamic purchasing system (as defined by any of the Regulations amended by Part 2), and references to a contract’s award include the establishment of a dynamic purchasing system,
“design contest” means any process treated as a design contest by any of the Regulations amended by Part 2,
“procurement” means the process leading to the award of a contract.
PART 2
Amendments
Public Contracts (Scotland) Regulations 2015
4.—(1) The Public Contracts (Scotland) Regulations 20153are amended as follows.
(2) In regulation 2 (interpretation), in paragraph (1), in the definition of “procurement document”, omit “where it is used as a means of calling for competition”.
(3) In regulation 5 (thresholds)—
(a)
(a) in paragraph (3)(b) for “regulation 6” substitute “regulation 6(1)(a)”,
(b)
(b) after paragraph (3) insert—
“
3A For the avoidance of doubt, in determining for the purpose of paragraph (3)(b) the estimated aggregate value of all the lots, no account is to be taken of a lot if its estimated value is taken to be a certain amount by virtue of regulation 6(1)(b) (rather than being an amount calculated in accordance with regulation 6(1)(a)).
(4) In regulation 6 (methods for calculating the estimated value)—
(a)
(a) in paragraph (1)—
(i) the words from “calculate” to the end become sub-paragraph (a),
(ii) in that sub-paragraph, after “calculate” insert “in accordance with the following paragraphs”,
(iii) at the end of that sub-paragraph insert—
“
; or
(b)
(b) if it is not possible to calculate the estimated value of a contract, take its estimated value to be equal to the relevant threshold mentioned in regulation 5
”,
(b)
(b) the regulation’s heading becomes “Estimating value”.
(5) In regulation 27 (choice of procedures)—
(a)
(a) for paragraph (2) substitute—
“
2 A call for competition must be made by means of a contract notice in accordance with regulation 50 (contract notices).
”,
(b)
(b) omit paragraph (8).
(6) In regulation 28 (open procedure), in paragraph (4) omit from “which was” to “procedures)”.
(7) In regulation 29 (restricted procedure)—
(a)
(a) omit paragraph (3)(b) and the “or” immediately preceding it,
(b)
(b) in paragraph (7), omit from “which was” to “competition”.
(8) In regulation 30 (competitive procedure with negotiation)—
(a)
(a) omit paragraph (5)(b) and the “or” immediately preceding it,
(b)
(b) in paragraph (7), omit from “which was” to “competition”.
(9) In regulation 35 (dynamic purchasing systems)—
(a)
(a) omit paragraph (8)(b) and the “or” immediately preceding it,
(b)
(b) in paragraph (22), omit from “or” to the end of the paragraph.
(10) In regulation 37 (electronic catalogues), in paragraph (5)(a), omit from “or” to “competition”.
(11) In regulation 46 (variants), in paragraph (2), omit from “or,” to “interest,”.
(12) In regulation 49 (prior information notices)—
(a)
(a) omit paragraphs (6) and (7),
(b)
(b) in paragraph (8), for “Subject to paragraph (9), the” substitute “The”,
(c)
(c) omit paragraph (9).
(13) In regulation 51 (contract award notices), omit paragraph (3).
(14) In regulation 55 (invitations to candidates)—
(a)
(a) omit paragraph (3),
(b)
(b) in paragraph (4), for “to (3)” substitute “and (2)”,
(c)
(c) omit paragraph (6).
(15) In regulation 73 (termination of contracts), after paragraph (3) insert—
“
4 A contracting authority must not terminate a public contract in a manner that circumvents the obligations under these Regulations.
(16) In regulation 75 (publication of notices), omit paragraph (1)(b) and the “or” immediately preceding it.
(17) In regulation 76 (principles of awarding contracts), in paragraph (4), omit “or prior information notice”.
(18) In schedule 4A (international trade agreements), after the last entry (for Iceland, the Principality of Liechtenstein and the Kingdom of Norway), insert—
“
Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and Australia, signed at London on 16th December 2021 and Adelaide on 17th December 2021.
Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and New Zealand, signed at London on 28th February 2022.
Utilities Contracts (Scotland) Regulations 2016
5.—(1) The Utilities Contracts (Scotland) Regulations 20164are amended as follows.
(2) In regulation 2 (interpretation), in paragraph (1)—
(a)
(a) omit the definition of “invitation to confirm interest”,
(b)
(b) in the definition of “periodic indicative notice”, omit from “, or where” to “notices)”.
(3) In regulation 15 (thresholds)—
(a)
(a) in paragraph (2)(b), for “regulation 16” substitute “regulation 16(1)(a)”,
(b)
(b) after paragraph (2) insert—
“
2A For the avoidance of doubt, in determining for the purpose of paragraph (2)(b) the estimated aggregate value of all the lots, no account is to be taken of any lot if its estimated value is taken to be a certain amount by virtue of regulation 16(1)(b) (rather than being an amount calculated in accordance with regulation 16(1)(a)).
(4) In regulation 16 (methods for calculating the estimated value)—
(a)
(a) in paragraph (1)—
(i) the words from “calculate” to the end become sub-paragraph (a),
(ii) in that sub-paragraph, after “calculate” insert “in accordance with the following paragraphs”,
(iii) at the end of that sub-paragraph insert—
“
; or
(b)
(b) if it is not possible to calculate the estimated value of a contract, take its estimated value to be equal to the relevant threshold mentioned in regulation 15
(b)
(b) the regulation’s heading becomes “Estimating value”.
(5) In regulation 38 (rules applicable to communication)—
(a)
(a) in paragraph (14)(a), omit from “or” to “sent”,
(b)
(b) in paragraph (16), omit “or the invitation to confirm interest”.
(6) In regulation 42 (choice of procedures)—
(a)
(a) omit paragraph (5)(a),
(b)
(b) omit paragraph (6).
(7) In regulation 43 (open procedure), in paragraph (4)—
(a)
(a) omit from “which was” to “procedures)”,
(b)
(b) for sub-paragraph (a) substitute—
“
(a)
(a) the periodic indicative notice included (in addition to the information required by regulation 65(2)) the information set out in section II of Part A of Annex VI to the Utilities Contracts Directive, read subject to the...
To continue reading
Request your trial