Scottish public bodies need a clear strategy to embrace new sustainable procurement duty, says expert

The new duty was set out in the Procurement Reform (Scotland) Act 2014 and is now coming into effect. According to explanatory notes attached to the Act, the duty requires public bodies to consider, "before starting a procurement competition, how, by the way in which it conducts the procurement process, it might improve the economic, social and environmental well-being of the authority’s area".

The new duty creates a statutory basis for ensuring that sustainability is at the heart of public procurement in Scotland, although for many authorities in Scotland the principles that make up the duty will not be new.

Many authorities have historically used their procurement processes to deliver social benefits.  However, the introduction of the new duty should prompt public bodies to establish and maintain a suitable audit trail so as to justify procurement activities.

The sustainable procurement duty will come in to force for all regulated procurements as of 1 June 2016. The duty will require authorities to set out how they intend to ensure regulated procurements comply with the sustainable procurement duty in a proportionate and achievable way. This will need to be set out prior to any regulated procurement, as well as included within the annual publication of the authority's procurement strategy.

The sustainable procurement duty requires public bodies to consider, where relevant, economic, social, and environmental wellbeing in their buying decisions, as well as how to facilitate the involvement of small/medium enterprises, third sector bodies and supported businesses in the procurement process, and the promotion of innovation.

To comply with the wellbeing requirements, public bodies will for many procurement processes therefore have to specifically reference wellbeing factors within their tender specifications. mindful always of the broader rules on procurement specifications contained within the Public Contracts (Scotland) Regulations 2015.

Tools have been developed by the Scottish Government to help public bodies comply with the new sustainable procurement duty. They help public bodies to plot the wellbeing factors relevant to their project, test the sustainability of proposals and assess the risks to and opportunities for sustainable procurement throughout the procurement process.

The sustainable procurement duty focuses on balance and the need for competition, transparency and accountability in public procurement. The duty should be applied to regulated procurements in a way which is proportionate and practical for promoting sustainability.

Authorities should ensure that they have a clear strategy and consistent consideration of the duty in all aspects of the procurement process.

Elaine McLean is an expert in public procurement law at Pinsent Masons, the law firm behind Out-Law.com.