General procurement duties for RSLs and contracting authorities

As we quickly approach the end of the financial year and look forward to what the coming year has in store, it is perhaps an appropriate time to consider and review your organisation’s compliance with the various relevant procurement duties. Such duties placed on contracting authorities (such as RSLs), can include the preparation and/or review of procurement strategy and annual report documents, and the requirement to keep and maintain a contracts register (all as touched on briefly below).

Procurement Strategy and Annual Report

Where significant expenditure is anticipated in the coming financial year (i.e. from April 2022 to April 2023), it is key that contracting authorities consider their duty in relation to either the preparation or review (and publication) of their procurement strategy, so as to ensure compliance with the relevant Scottish procurement legislation. Contracting authorities must ensure that certain information is contained within their procurement strategy, and of course also ensure that procurement exercises for the year to which the strategy relates, are carried out in accordance with the strategy. Where a contracting authority concludes that there will not be significant expenditure during the financial year (and no procurement strategy is accordingly prepared/reviewed), and this position subsequently changes through the course of the relevant year, the contracting authority must (as soon as it becomes aware of this change) prepare or review the procurement strategy.

In circumstances where a contracting authority is required to prepare or revise a procurement strategy, preparation of an annual report will also be required as soon as possible following the end of that financial year. Again, specific information must be included in the annual report in advance of its publication.

Contracts Register

In addition to the above general duties – and entirely separate and independent – contracting authorities are required to maintain and keep a contracts register. The register must include specific information in relation to certain contracts entered into as a result of any regulated procurements that the contracting authority has gone out to market with. Whilst there are some very limited exceptions that allow contracting authorities to withhold entries on the contracts register, generally speaking the contracting authority must ensure that the contracts register is maintained and also made publically available.

Prudent upkeep and maintenance of the contracts register should also allow an opportunity for contracting authorities to pause and reflect on the ongoing contracts, including identification of any contracts are coming to an end in the near future, and which would require a new procurement procedure. It may also be an opportunity for contracting authorities to consider whether any contractual extension could be exercised – or consideration of any permitted modification to the contract (for example an extension that was not provided for in the original tender process). Caution must be exercised when considering to modify any contract in this way, and we would always recommend that advice is sought in advance of any proposed extension, where the contracting authority has any doubts.

Going forward

Should your organisation need any assistance and/or guidance in relation to any of the above procurement duties, or in relation to procurement generally, please do not hesitate to get in touch with our procurement team.