The first instrument for consideration is the Public Contracts (Scotland) Regulations 2015 (SSI 2015/446). Its purpose is to revoke and replace the Public Contracts (Scotland) Regulations 2012 (SSI 2012/88) and to transpose into domestic law directive 2014/24/EU on public procurement.
The regulations could be clearer in the following respect. Regulation 2 defines the term “central government authority” as
“the authorities listed in Schedule 1 and, where any such authority is succeeded by another authority which is itself a contracting authority, their successors”.
Regulation 2 also defines the term “contracting authority” as
“the state, a regional or local authority, body governed by public law or association formed by one or more such authorities or bodies”.
Directive 2014/24/EU defines “central government authorities” as the contracting authorities that are listed in annex 1, but the definition of “central government authority” in regulation 2 refers not to “contracting authorities” but only to “authorities”. The central government authorities that are listed in schedule 1 of the regulations are intended to be contracting authorities for the purposes of the regulations, but the definition of “central government authority” as set out in regulation 2(1) does not make that policy intention clear.
The regulations also contain a number of cross-referencing errors. Paragraphs (5), (6) and (7) of regulation 4 refer to, respectively, paragraphs (5)(a), (5)(b) and (5)(c). The references should instead be to paragraphs (4)(a), (4)(b) and 4(c). Regulation 38(1) refers to paragraph (9)(a), but there is no paragraph (9) in regulation 38. Regulations 85(3)(a) and 85(3)(b) refer to, respectively, regulations 43(11) and 43(10). The references should instead be to regulations 43(14) and 43(13). Regulation 91(2) refers to paragraph (10)(b). The reference should instead be to regulation 92(1)(b).
Regulation 99(5) defines the term “the Utilities amendments” as the amendments made to the Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89)—which are defined as “the UCR”—by paragraph 9 of schedule 6. The reference to paragraph 9 should instead be to paragraph 8. Finally, the new paragraphs (10)(1)(b) and 10(2) of schedule 3 to the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013 (SSI 2013/50) as substituted by paragraph 10 of schedule 6 to the regulations refer to regulation 80 when they should refer to regulation 79.
Do members have any comments?