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CONCORDAT ON CO-ORDINATION OF EU, INTERNATIONAL AND POLICY
ISSUES ON PUBLIC PROCUREMENT
1.1 This document is to be read in conjunction with:
- the Memorandum of Understanding (MOU) between the UK Government
and Scottish Ministers and the enabling legislation which establishes
the Scottish Executive. Reference to devolved or non-devolved matters
will be construed in accordance with the MOU;
- the overarching Concordat on the co-ordination of European Union
Policy Issues;
- the overarching Concordat on International Relations;
- the Concordat between the Scottish Executive and H M Treasury;
and
- the Concordat between the Scottish Executive and the Department
of Trade and Industry.
1.2 This agreement between the Scottish Ministers and the UK Government
is not intended to constitute a legally enforceable contract or to
create any rights or obligations which are legally enforceable. It
is intended to be binding in honour only.
2. Purpose
2.1 This Concordat sets out the mechanisms between the UK Government
and the Scottish Executive for the handling of EU and international
policy issues on public procurement. Specifically it covers:
- provision of information;
- formulation of UK policy;
- attendance at EU and international (eg WTO) meetings;
- implementation of EU and international obligations; and
- infraction proceedings.
2.2 It is intended to guide the actions of officials working on these
matters in the Scottish Executive and the UK Government, in particular
the joint H M Treasury and DTI Procurement Policy Unit (PP).
2.3 The general principles on which this Concordat is based are those
set out in the overarching Concordat on the co-ordination of European
Union policy issues.
3. General
3.1 Relations with the EU on public procurement policy and the development
of EC legislation and international agreements in this field are the
responsibility of the United Kingdom, as member state, Parliament
and Government. The development and application of public procurement
policy in Scotland, however, is a devolved matter. The UK Government
therefore wishes to involve the Scottish Executive as directly and
fully as possible in decision-making on EU and international public
procurement matters.
3.2 To ensure that non-devolved matters which may affect devolved
areas and devolved matters which may affect non-devolved areas are
considered fully, Ministers and officials of the Scottish Executive
and the UK Government will maintain close working relationships and
will inform each other at an early stage of any relevant proposals
or other developments on procurement policy and legislation, including
litigation and infraction cases of potentially wider significance.
3.3 Given the common aim of achieving value for money, normally through
competition and having due regard to propriety, regularity and the
costs of acquisition, the Scottish Executive will seek to ensure that
the policy and legal framework for public procurement in Scotland
complies appropriately with the UK's EU and international obligations
and will not prejudice the UK's objective of seeking EU and international
measures which are effective in opening procurement markets while
not imposing any unnecessary burdens or constraints on purchasers
or suppliers.
4. Consultation and Exchange of Information
4.1 The parties confirm their commitment to consult and exchange
information on matters of mutual interest in a timely and helpful
manner. There will be regular consultation between officials from
the Procurement Policy Unit (PP) and the Scottish Executive to ensure
that there is co-operation between the two administrations and that
the business of both operates effectively and efficiently.
4.2 To this end there should be a formal liaison meeting between
officials at least twice a year. In addition, the Director of Procurement
of the Scottish Executive will normally be invited to participate
in the Procurement Policy Committee and its Sub-Committees. Similarly,
the Head of PP will be invited to any equivalent Scottish meetings.
4.3 In accordance with the framework set out in the Memorandum of
Understanding, advance notification of, and consultation on, policy
initiatives and associated announcements will normally take place
not less than one month prior to the announcement. In the case of
legislative proposals, including subordinate legislation, advance
notification and consultation shall normally take place not less than
three months prior to the introduction of primary legislation and
the making of secondary legislation.
4.4 Each party undertakes to ensure that policy statements, interpretative
documents or guidance notes are copied in draft to the other. This
shall normally be in sufficient time to allow the other party to give
full and proper consideration to the draft. Officials of each administration
shall also ensure that relevant officials in the other are included
in the circulation lists for such material when finalised.
4.5 In accordance with the Memorandum of Understanding both parties
will also encourage joint working. For example, by inviting officials
of the other administration to join working groups which may be of
interest to them.
4.6 In respect of the EC/WTO rules, information will be provided
by PP in accordance with the overarching Concordat on Co-ordination
of European Policy Issues.
5. Formulation of policies and guidance in support of
the common aim
5.1 When considering new policies, interpretative documents or guidance,
in support of the agreed common aim (as set out above) the parties
will ensure that they give full and proper consideration to each other's
views and that, wherever possible, agreement is obtained in advance.
The parties also undertake to conduct their relationship on a "no
surprises" basis.
5.2 DTI Ministers in consultation with Treasury Ministers will retain
lead responsibility for developing UK policies in respect of the EC/WTO
rules, taking into account the views of the Foreign and Commonwealth
Office.
6. Attendance at Council of Ministers and Related Meetings
6.1 Arrangements for attendance at the Council of Ministers and related
meetings (including the standing Advisory Committee on Public Contracts)
will be in accordance with the overarching Concordat on Co-ordination
of European Policy Issues.
6.2 Officials of the Scottish Executive will have a role in supporting
the single UK negotiating line and might, for example, attend Council
Working Groups on procurement matters and the Advisory Committee on
Public contracts as observers. They will be kept fully informed by
PP of the arrangements for such meetings, including being provided
with any relevant documentation. In practice attendance would be agreed
bilaterally with PP as the lead Whitehall department as provided for
by the overarching Concordat on Co-ordination of European Policy Issues.
6.3 Where appropriate, and by prior agreement, it will be open for
Ministers or officials of the Scottish Executive to represent the
UK at such meetings.
7. Implementation of EC Procurement Directives
7.1 Arrangements for the implementation of the EC procurement directives
will be in accordance with the overarching Concordat on Co-ordination
of European Policy Issues.
7.2 As procurement is a matter falling within the responsibility
of the Scottish Executive, Scottish Ministers will have the power
to implement EC public procurement directives separately. Should Scottish
Ministers prefer not to implement separately, they may opt for GB
or UK implementing legislation to be made (or introduced) by the Treasury
as the designated department. In accordance with the overarching Concordat
on Co-ordination of European Policy issues, where Scottish Ministers
choose to implement separately, they will have a responsibility to
consult UK Ministers and others as appropriate. Close liaison will
be necessary to ensure consistency of effect and, where appropriate,
timing.
8. Procurement Related Infraction Proceedings
8.1 Arrangements for the handling procurement related infraction
proceedings will be in accordance with the overarching Concordat on
Co-ordination of European Policy Issues.
8.2 Where cases relate to the conduct of Scottish contracting authorities,
or exclusively to Scottish implementation of the procurement directives,
a draft reply will be prepared by officials of the Scottish Executive.
The draft will be agreed at official, and where necessary Ministerial,
level with interested Whitehall departments. It will then be submitted
through UKRep in the normal way. All formal Commission correspondence
and UK replies to procurement related infraction proceedings (including
pre-Article 226 letters) will be copied in draft to officials of the
Scottish Executive, to ensure that they are kept fully informed of
developments and that they have the opportunity to comment.
8.3 Officials of the Scottish Executive will also be invited to participate
in any "package meetings" arranged to discuss procurement infraction
cases.
9. Resolution of Disagreements
9.1 The main intention of this Concordat is to provide a framework
for full and proper consultation and co-operation. It is hoped that
this will minimise the chances of disputes occurring.
9.2 Where disputes do arise, both parties should strive to resolve
them through the general framework for consultation set out above.
If it is not possible to resolve a dispute by such means, resolution
will be in accordance either with the relevant provisions set out
in the DTI and HM Treasury Concordats with the Scottish Executive
or, if more appropriate given the nature of the dispute, with the
relevant provisions of the overarching Concordat on Co- ordination
of European Policy Issues.
10. Review
10.1 This Concordat, and the functioning of bilateral relations generally,
will be reviewed one year after coming into operation and every three
years thereafter. Either party may request an additional review if
they consider it necessary (for example to propose new provisions
as the relationship develops). Any changes to the Concordat must be
with the agreement of both parties.
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