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Blacklisting in Scotland – can public bodies turn policy into practice?

Thursday December 5th, 2013

On 20 November 2013, the Scottish Government issued a Scottish Procurement Policy Note (“SPPN”) on the exclusion from public contracts of suppliers which engage in blacklisting (the compilation or use of lists of trade union members to exclude such people from employment opportunities). This development is significant for a number of reasons, not the least of which is political (the Welsh Assembly has already issued advice on this issue but the UK Government has not). It also raises interesting procurement law issues.

Jill Fryer

Jill Fryer

Although the SPPN is not legally binding, there will be significant pressure on public bodies to follow the SPPN and incorporate the new questions which it suggests into their Pre-Qualification Questionnaires (PQQs) and the new condition which it suggests into their contracts.

The Public Contracts (Scotland) Regulations provide for mandatory and discretionary grounds of exclusion. The SPPN states that if a supplier has breached the relevant blacklisting legislation, the supplier could be considered to have “committed a grave misconduct in the course of its business or profession”. This is a discretionary ground of exclusion. The difficulty with discretionary grounds of exclusion is that any exclusion must be proportionate to the scale and nature of the offence or misconduct. Each case needs to be considered on its own merits, taking account the specific circumstances of the case. Case-law from the European Courts on the meaning of “grave misconduct” as a grounds for exclusion confirms this principle.

Applying the SPPN in practice may be difficult for public bodies. Because suppliers cannot be automatically excluded for breach of the relevant blacklisting legislation and each case must be assessed on its own merits, there will be implications for public bodies in terms of resources and timescales. Applying the SPPN may also expose public bodies to an increased risk of challenge because of the discretion afforded to public bodies in making that assessment.

Blacklisting is currently a controversial issue which the Scottish Government has the political will to address. Procurement documentation may require further amendment in the future if the Scottish Government decides that breaches of other specific laws require specific mention/ highlighting rather than relying generally on the “grave misconduct in the course of its business or profession” ground for exclusion.

 

Jill is an Associate with Harper Macleod LLP and can be contacted at jill.fryer@harpermacleod.co.uk

Twitter: @HarperMacleod

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Website: www.harpermacleod.co.uk

 

Gov Opps’ training partner, PASS (Procurement Advice Support Service) runs relevant procurement training courses, which include Drafting a Compliant PQQ, Introduction to Public Procurement, Competitive Dialogue and New EU Procurement Directive – A Buyer’s Perspective. To get more info on the courses, click HERE.

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