Public Sector Procurement
Response from UNISON Scotland to the
Scottish Executive Consultation Paper:
New Public Sector Procurement Directive 2004/18/EC
October 2004
Introduction
This paper constitutes UNISON Scotland's response
to the Scottish Executive consultation document ‘The Approach
to Implementation in Scotland of the New Public Sector Procurement
Directive 2004/18/EC.
UNISON is Scotland's largest trade union representing
over 150,000 members working primarily in the public sector.
UNISON Scotland welcomes the opportunity to
put forward our views regarding the implementation of the procurement
directive.
Response
UNISON welcomes the aim of the new European
Public Procurement Directive to modernise, simplify and clarify
the provisions of the pre-existing Public Procurement Directives
covering works, supplies and services.
Legal certainty on the use of social and
environmental criteria
UNISON welcomes the legal certainty derived
from the text of the New Directive. This makes it clear that
contracting authorities are legally allowed to include social
and environmental criteria in the evaluation and award of criteria
as long as the criteria are linked to the subject matter of
the contract as stated in Recital 1 and Article 26 of the Directive.
This will ensure that there is no doubt that public authorities
are able to consider employment issues, including statutory
guidance and legislation on fair employment and to tackle the
two-tier workforce as set out in PPP Staffing Protocol, The
Local Government in Scotland Act 2003 and related guidance.
Article 25 - Sub-contractors
UNISON believes that Article 25 of the new
Directive should be transposed as mandatory rather than optional.
This means that a contracting authority must ask tenderers
to indicate any share of the contract s/he may intend to sub-contract
to third parties and any proposed measures contained in the
Best Value Code of Practice on Workforce Matters in local authority
service contracts. It is therefore important for the public
authority to have knowledge of the primary provider's plans
for sub-contracting in order to comply with the staffing protocol
and other guidance.
Article 27 - Obligations relating to taxes,
environmental protection, employment protection provisions and
working conditions
UNISON is of the view that Article 27 of the
new Directive should be transposed as mandatory rather than
at contracting authorities' discretion. If contracting authorities
were required to state in contract documents where tenders can
get information on these obligations, they would have to ask
tenderers to show that they have taken them into account during
the contract award procedure. Such a requirement would strengthen
existing and planned guidance including the PPP Protocol. It
would also support any future policies or legislation designed
to tackle the two-tier workforce and promote a fair wages/fair
employment agenda.
Framework agreements
UNISON is concerned about the potential lack
of transparency of framework agreements which allows call-off
contracts, without the need to go out to tender for each contract
and advertise in the Official Journal of the European Union.
Currently, when such framework agreements are made, employees
are left in an uncertain position, not knowing if or when their
service will be contracted out and their employment transferred
to a service provider. It also raises difficulties regarding
compliance with TUPE legislation, the Best Value guidance and
the PPP Protocol provisions.
UNISON suggests that guidance accompanying
the regulations implementing the new Directive should require
contracting authorities to ensure that trade unions and staff
are consulted and involved in good time before each contract
(call-off contract) is entered into under framework agreements.
For Further Information Please Contact:
Matt Smith, Scottish Secretary
UNISONScotland
UNISON House
14, West Campbell Street,
Glasgow G2 6RX
Tel 0845 355 0845 Fax 0141 342 2835
e-mail matt.smith@unison.co.uk
