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Public Sector Procurement
Response from UNISON Scotland to the
Scottish Executive Consultation Paper:
New Public Sector Procurement Directive 2004/18/EC

October 2004


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.


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
14, West Campbell Street,
Glasgow G2 6RX
Tel 0845 355 0845 Fax 0141 342 2835

e-mail matt.smith@unison.co.uk



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