The Public Contracts (Scotland) Regulations 2012 have been published

Thursday April 5th, 2012

By Ruth McNaught, Solicitor, Harper Macleod LLP

The Public Contracts (Scotland) Regulations 2012 (the “Regulations”) – which consolidate the Public Contracts (Scotland) Regulations 2006 and all subsequent amendments – have now been published.

The Regulations also introduce a number of amendments. For example, the list of criminal offences relevant to the rejection of economic operators now includes new bribery offences under the Bribery Act 2010.

In addition, the Regulations contain an amendment to Regulation 47, to revise the time limit within which economic operators must commence court proceedings under the Regulations. The new limit is 30 days from the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.  The court will have what appears to be a broad discretion to extend the 30-day period up to a limit of three months where it considers that there is a “good reason” for doing so.

These changes reflect the Public Procurement (Miscellaneous Amendments) Regulations 2011 – which apply to the Public Contracts Regulations applicable in England, Wales and Northern Ireland – as well as the Utilities Contracts Regulations and the Defence and Security Public Contracts Regulations.

As explained in our blog of 7 September 2011 (“New public procurement regulations impact timelines for making complaints”), the change to the time limits in England and Wales, and now in Scotland, is a mechanism to implement the European Court of Justice (ECJ)’s decision in the Uniplex case (Uniplex (UK) Limited v NHS Business Services Authority).

The Regulations are a departure from the previous regime whereby an aggrieved tenderer had to bring claims “promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose, unless the Court considers that there is good reason for extending the period” (Regulation 47 (7(b)). It was this requirement to bring proceedings ‘promptly’ that was brought into question in the Uniplex case, the ECJ determining that it “leaves the Court with the discretion to dismiss an application even where the three-month time limit has not yet expired…[which] is inconsistent with EU law as it is not precise and makes the limitation rules uncertain”.

The Regulations will come into force on 1 May 2012.

Ruth is a solicitor at Harper Macleod LLP and can be contacted on ruth.mcnaught@harpermacleod.co.uk

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