Written Question · S2W-09434 · Session 2
With reference to the report in Scotland on Sunday on 27 June 2004 relating to the tender and post-tender process followed by the City of E…
The question
To ask the Scottish Executive, with reference to the report in Scotland on Sunday on 27 June 2004 relating to the tender and post-tender process followed by the City of Edinburgh Council for the #60 million extension to the Edinburgh International Conference Centre (EICC), (a) what information it has received about the matter, (b) whether the Executive has offered any advice to the council on the matter, (c) whether one bidder was permitted to alter the details of their bid after being named the preferred bidder, whether this procedure is in accordance with procurement law and whether the Executive has offered any advice on this matter and, if not, whether it will now do so, (d) whether one bidder, the Cala-Morrison consortium, was given specific information that other bidders did not receive, namely, that the council had agreed to rent the offices being built next to the EICC on a 20-year lease at #5.4 million a year, (e) whether providing information to one bidder and not other bidders is a breach of the rules and law governing the tender process, (f) what its position is on whether the council should invite all parties to resubmit their offers and what the reasons are for its position on the matter, (g) whether legal responsibility on such matters lies with the council and, if so, whether any extra costs that may result from, for example, any legal action in respect of any breach of the tender process, should be solely the responsibility of the council and not the Executive, (h) whether it will intervene in respect of this matter, (i) whether the Executive is in regular contact with the council in a similar manner to its regular contact with Her Majesty's Government, (j) whether the Executive is concerned that a director of one of the property developers quoted in the report stated that “None of the other bidders got to consider the deal with a pre-let to the council”, (k) whether the Executive considers that one bidder has been preferred in the tender process, (l) whether, in relation to the Executive's tendering process, all bidders must be treated equally and, in particular, post-tender negotiations must not, in accordance with HM Treasury guidance, be treated preferentially, (m) whether it will now order, or recommend, an investigation into the matter and, if so, by whom such an investigation should be carried out and whether, pending the outcome of such an investigation, the tender process should be the subject of intervention in order to protect the rights of all parties who submitted a tender, (n) whether rival bidders to Cala-Morrison were informed that Cala-Morrison's bid was not “commercially viable” in its original draft and whether the council indicated that the office should be taken by the council on a 20-year lease on terms communicated to Cala-Morrison, but not to rival bidders, (o) whether the Executive has referred the circumstances of the matter to the Auditor General for Scotland and, if no such referral has been made, whether it will now be made, (p) whether the council has referred the matter to the Auditor General and, if no such referral has been made, whether the council will now refer the matter and (q) what action the Executive will now take in relation to this issue.
The answer
The conduct of procurement procedures by local authorities is largely a matter for the individual authority concerned, subject of course to any relevant legal requirements such as obligations under EU procurement law. Also, we understand that the procurement procedure in question has not yet been concluded. In light of this, it would not be appropriate for the Executive to comment on the case in question. In response to the specific questions (a) to (q):
(a) the procurement procedure in question is a matter for Edinburgh City Council and Edinburgh International Conference Centre Ltd (EICC). No information has been received by the Executive other than that reported in the media and some background information provided by Edinburgh City Council (the council) to assist the Executive in responding to these questions;
(b) The Executive has not provided advice to the council or EICC on this procurement procedure;
(c) The question of whether or not in fact one bidder was permitted to alter the details of its bid is a matter for the council and EICC. Caselaw of the European Court of Justice suggests that it is not appropriate to allow only one bidder to alter the terms of its bid if competition might be distorted as a result (for example, where the bidder would gain an unfair advantage over its competitors). The Executive does not routinely advise councils on procurement matters, although informal advice on procurement policy and EU procurement law obligations is provided on an ad hoc basis as and when requested. To date, the council and EICC have not sought advice from the Executive;
(d) The question of whether or not one bidder was given specific information that other bidders did not receive is a matter for the council and EICC;
(e) Caselaw of the European Court of Justice suggests that providing material information to some bidders and not to others, to the effect that recipients gain an advantage over their competitors, would be contrary to EU procurement law;
(f) This is a matter for the council and EICC subject to any over-riding requirements of EU procurement law;
(g) Failure to comply with EU procurement law is actionable in the Court of Session. Complaints may be brought by aggrieved bidders who can seek interdicts and/or damages against the individual contracting authority. Costs and damages associated with Court of Session actions for non-compliance are the responsibility of the contracting authority and complainant(s). Complaints regarding failure to comply with EU procurement law can also be made to the European Commission. If the European Commission brings legal proceedings, responsibility rests with the Member State. Since procurement is a devolved matter, the Executive takes the lead in handling European Commission complaints regarding Scottish public procurement. The council has advised that a contract has not yet been let and therefore in such circumstances damages may not be applicable;
(h) The Executive has no plans to intervene in what is essentially a matter for the council and EICC;
(i) The Executive has regular contacts with Edinburgh City Council
(j) It would be inappropriate for the Executive to comment at this stage on what is essentially a matter for the council and EICC;
(k) It would be inappropriate for the Executive to comment at this stage on what is essentially a matter for the council and EICC;
(l) It is a fundamental principle of both EU procurement law and the Executive’s procurement policies that all bidders must be treated fairly and equally. Also, post-tender negotiations must not be conducted in a manner which results in preferential treatment for particular bidders or which results in the distortion of competition. Procurement is a devolved matter and HM Treasury Guidance has in some cases been superseded by Executive guidance;
(m) As explained in the response to question (g) above, aggrieved bidders have the right o
(a) the procurement procedure in question is a matter for Edinburgh City Council and Edinburgh International Conference Centre Ltd (EICC). No information has been received by the Executive other than that reported in the media and some background information provided by Edinburgh City Council (the council) to assist the Executive in responding to these questions;
(b) The Executive has not provided advice to the council or EICC on this procurement procedure;
(c) The question of whether or not in fact one bidder was permitted to alter the details of its bid is a matter for the council and EICC. Caselaw of the European Court of Justice suggests that it is not appropriate to allow only one bidder to alter the terms of its bid if competition might be distorted as a result (for example, where the bidder would gain an unfair advantage over its competitors). The Executive does not routinely advise councils on procurement matters, although informal advice on procurement policy and EU procurement law obligations is provided on an ad hoc basis as and when requested. To date, the council and EICC have not sought advice from the Executive;
(d) The question of whether or not one bidder was given specific information that other bidders did not receive is a matter for the council and EICC;
(e) Caselaw of the European Court of Justice suggests that providing material information to some bidders and not to others, to the effect that recipients gain an advantage over their competitors, would be contrary to EU procurement law;
(f) This is a matter for the council and EICC subject to any over-riding requirements of EU procurement law;
(g) Failure to comply with EU procurement law is actionable in the Court of Session. Complaints may be brought by aggrieved bidders who can seek interdicts and/or damages against the individual contracting authority. Costs and damages associated with Court of Session actions for non-compliance are the responsibility of the contracting authority and complainant(s). Complaints regarding failure to comply with EU procurement law can also be made to the European Commission. If the European Commission brings legal proceedings, responsibility rests with the Member State. Since procurement is a devolved matter, the Executive takes the lead in handling European Commission complaints regarding Scottish public procurement. The council has advised that a contract has not yet been let and therefore in such circumstances damages may not be applicable;
(h) The Executive has no plans to intervene in what is essentially a matter for the council and EICC;
(i) The Executive has regular contacts with Edinburgh City Council
(j) It would be inappropriate for the Executive to comment at this stage on what is essentially a matter for the council and EICC;
(k) It would be inappropriate for the Executive to comment at this stage on what is essentially a matter for the council and EICC;
(l) It is a fundamental principle of both EU procurement law and the Executive’s procurement policies that all bidders must be treated fairly and equally. Also, post-tender negotiations must not be conducted in a manner which results in preferential treatment for particular bidders or which results in the distortion of competition. Procurement is a devolved matter and HM Treasury Guidance has in some cases been superseded by Executive guidance;
(m) As explained in the response to question (g) above, aggrieved bidders have the right o
In the Official Report
No contribution in the Official Report cites S2W-09434 by reference.