As we continue to adapt to fight the battle with the Coronavirus, the Scottish Government has produced a Scottish Procurement Policy Note (SPPN) relating to public procurement, noting that in the current circumstances public bodies may need to act quickly to procure goods and services.
We discuss the key points of the Scottish Government's Note below and take the opportunity to highlight some useful information and reminders for bodies covered by the procurement regime.
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The existing rules can be used to justify urgent purchases
Although there is no indication that the procurement regime will be amended or relaxed notwithstanding the current crisis, the SPPN identifies the existing grounds in the Procurement Rules that justify making urgent purchases.
Check the continuity and resilience of existing suppliers
Continuity of key services is identified as a priority, with contracting authorities being encouraged to act early to seek assurances from providers of key services that those providers have plans to allow them to continue to deliver in the current climate.
Many public bodies will have Risk Registers and Business Continuity Plans which, in combination with their Contracts Register, should assist in identifying the key contracts for their organisation.
Annex A to the SPPN includes a template letter that the Scottish Government has used to approach its own suppliers.
Modifying existing contracts
Contracting authorities should consider whether existing contracts can be lawfully modified to take account of the urgent situation. The Procurement Rules provide grounds to justify modifying existing contracts for reasons of extreme urgency if it is needed to address the Covid-19 outbreak, as well as other grounds that may be available in the circumstances.
Frameworks/ Dynamic Purchasing Systems
Contracting authorities may also want to look to see whether they can call off contracts from an existing Framework Agreement or use a Dynamic Purchasing System if one is available or appropriate in the circumstances. Annex B to the SPPN contains some useful links to available Frameworks and Dynamic Purchasing Systems.
Awarding new contracts
If a contracting authority does have to start a new procurement process, it is possible to accelerate the timescales in certain circumstances. Annex D to the SPPN describes the timescales in detail, and a template is provided for the reason for the acceleration (connected to Covid-19), as this would require to be set out in any Contract Notice.
In terms of making a direct award, the note states: “COVID-19 is serious and its consequences pose a risk to life.” Direct awards are permitted in specific circumstances that are discussed at Annex E, including:
- Extreme urgency, not attributable to the contracting authority – clearly Covid-19 is not attributable to any contracting authority
- Absence of competition for technical reasons
- Protection of exclusive rights, including intellectual property rights
- Additional supplies from the original supplier where it would be disproportionately disruptive to change to a different product
- Further works or services from a supplier, where the original procurement documents suggested this may be needed
Public bodies are also invited to consider whether the 'Light Touch Regime' applies to the type of contract to be procured (such as Health or Social Care contracts), or whether they could break down contractual requirements into separate, smaller contracts (Lots).
Value for Money
The SPPN reminds contracting authorities that it is important that they should continue to deliver value for money and exercise sound commercial judgement in reaching decisions.
Potential Procurement Challenges
The Procurement Rules have not been suspended, so it is still open to an aggrieved supplier to raise proceedings where an award without competition is made.
Contracting authorities will need to ensure they have a robust audit trail for the decisions that they make, so that they can demonstrate how those decisions are compliant with the rules.