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Tax & Social Security Obligations

The Scottish Government treats tax and social security obligations seriously.

Organisations can exclude a bidder where they have established that the bidder has breached its tax or social security obligations.  Organisations must determine on a case-by-case basis whether a particular piece of evidence (which falls short of a judicial or administrative decision) is sufficient to demonstrate “appropriate means”.

Examples of evidence which may demonstrate breaches in tax or social security obligations, on which organisations can seek clarification from bidders, could include:

 Credit references

i.e. details of any outstanding tax debt

Company accounts

depending on the size of the tax debt the bidder may be obliged to include this in their accounts

OONC

an admission by a bidder to an Occasion of Non-Compliance (OONC) or

Avoidance scheme failure

an admission by a bidder of the failure of an avoidance scheme which they were involved in and was, or should have been, notified under Disclosure of Tax Avoidance Scheme (DOTAS) 

 

Where a bidder admits to a breach of its tax or social security obligations, which did not involve a judicial or administrative decision, the organisation can request further details and any mitigating factors, from the bidder.  This is to further understand the nature of the breach.

.This could include:

  • a brief description of the OONC and which tax it applied to
  • where the OONC relates to a DOTAS, the number of the relevant scheme
  • the date of the original breach
  • corrective action taken by the bidder to date
  • planned corrective action to be taken
  • changes in personnel or ownership since OONC; and
  • changes in financial, accounting, audit or management procedures

Self-Cleansing – Tax and Social Security Contributions

Where the bidder can provide evidence that it has fulfilled its obligations by paying the amount due, it must not be excluded from the procurement exercise on this basis alone.  This also applies where it has entered into a binding agreement with the intention of paying taxes or social security contributions, including any interest due. Evidence of this could include:

  • a receipt or confirmation of payment requested from the relevant tax authority or
  • a written copy of the agreement to pay obligations.

Additionally, where excluding a bidder would be disproportionate, you may decide not to exclude them. 

For example this could be because a minor amount of tax or social security contributions are owed, or a bidder has not had a sufficient time to pay the amount owed.

You must take a balanced view when deciding not to exclude on this basis. This could include considering the bidder’s overall tax and social security obligations and the overall risk to  contract delivery. 

For example there may be instances where an apparent "minor amount" may significantly affect the liquidity of the bidder and its ability to perform the contract, or where sufficient time did exist for the outstanding amounts to be paid.

Blacklisting

The Scottish Government regards blacklisting or the compiling of a blacklist as totally unacceptable. 

Blacklisting refers to the practice of systematically denying individuals employment, who would otherwise be able to be employed.  Blacklisting is done on the basis of information, accurate or not, held in some type of database.

The Employment Relations Act 1999 (Blacklists) Regulations 2010 [6] provide rights for individuals if blacklisting results in refusal of employment, detriment, dismissal or redundancy.  

Any bidder which has been found to have breached, or who have admitted to breaching, these Regulations must be excluded from the procurement process for a period of three years.  This is unless the bidder can demonstrate  that it has taken appropriate remedial steps to your satisfaction. 

Criminal Offences

Exclusion grounds must be applied where a bidder has been convicted in the last five years by final judgment of one of the criminal offences contained in the regulations. These offences are:

  • Participation in a criminal organisation
  • Corruption
  • Bribery and Fraud
  • Terrorist offences or offences linked to terrorist activities
  • Money laundering or terrorist financing
  • Child labour and other forms of trafficking in human beings

Lifecycle Impact Mapping

Lifecycle Impact Mapping focuses on social and environmental impact rather than cost.   It helps the user identify and assess impacts. 


Example
 
It may help to focus attention on the disposal phase before the procurement is carried out.  This would allow you to build end-of-life management requirements into successful contract performance clauses and your own internal management procedures. For example the uplift and recycling of printer cartridges, reusing delivery pallets, etc.

Please note:  Life cycle impact mapping can be used alongside life cycle costing as part of the procurement process.

Lifecycle Costing

Lifecycle costing covers part or all of the following product or service costs::

a) costs produced by the Organisation or other users, such as:

  • purchase costs 
  • usage costs e.g. energy consumption, other resources;
  • maintenance costs;
  • end of life costs, such as collection and recycling costs; and

(b) product or service life cycle environmental costs  To include such values you must be able to calculated and confirm them.  This may include the cost of greenhouse gas emissions, other pollutant emissions, other climate change aviodance costs.

Design Specification

In very exceptional circumstances a "design" specification may be unavoidable for a product or service. In such cases the type of requirement makes it essential to narrow the options by writing a detailed full design specification including exact details.


Examples

  • physical dimensions;
  • materials to be used;
  • power input and output; and
  • the manufacturing processes required.

Technical Specification and Standards

Within a technical specification you should avoid references which may unduly favour or eliminate suppliers e.g. by asking for a specific material or goods.  

You should not reference a specific make or source or to a particular process, trademark, patent, type, origin or means of production.

Examples

Do not specify "Hoover" when you mean a vacuum cleaner or "Intel" when you mean a central processing unit of a personal computer.

In exceptional circumstances such mention may be justified if:

  • the contract's subject makes using it unavoidable or
  • the contract's subject cannot be described in any other way that is precise and able to be understood by all potential bidders.

In either of the above circumstances such mentions should be accompanied by the words "or equivalent".

Accessibility

Where the goods or services are intended to be used by people, the technical specifications must, except in duly justified cases, take into account accessibility criteria e.g. people with disabilities.

Technical specifications must afford equal access to bidders and must not create obstacles to competition. For more information, reference 11 (7) (8) (9) PSR2016.

 

Exit Strategy

An exit strategy is necessary to:

  • Identify possible risks;
  • Define potential losses;
  • Ensure service continuity.

It should be a ‘front end’ activity created before the contract is signed. This may appear counterintuitive.  However without a well thought out strategy (which is consistent with your overall sourcing strategy) your Organisation risks:

  • Becoming stuck in an unsatisfactory contract relationship;
  • Being forced to pay more to terminate the contract and minimise operational impact.

Having an exit strategy in place at the start of a supplier relationship means not only that your Organisation’s needs will be included into the contract, but that the supplier will have a clear road map through to contract close (this is particularly supportive for smaller business who may rely heavily on public sector contracts). The exit strategy should also include what would happen in the case of early termination and so help to ensure there will be minimum business and customer disruption if the relationship were terminated.

Please note: you cannot terminate a contract with the aim of avoiding procurement rule obligations.

Exit strategies should be reviewed annually, or when significant change occurs

There are several considerations to be made when developing an exit strategy, including:

  1. Continuing Service Requirements;
  2. Data Security and Privacy;
  3. Knowledge and Documentation Transfer;
  4. Costs;
  5. Personnel.

Below suggests some factors for consideration.  This is not an exhaustive list. Each contract / supplier relationship should be considered on its own merits.

1. Continuing Service Requirements

An exit strategy should set forth your organisation’s service requirements when the parties are transitioning out of the relationship. These requirements may include:

2. Data Security and Privacy

Data privacy and security are critical.  The Exit Strategy should consider provision for:

3. Knowledge and Documentation Transfer

Strict documentation and knowledge transfer contract requirements will be advantageous. Be sure to:

  • Require the supplier to give you access to everything your organisation will need to maintain the service;

  • Clearly state responsibilities i.e. which party owns the work performed by the supplier and which party is responsible for the transfer of ownership;

  • Fully document the service description for any transition period additional services.  These are services required from the supplier (e.g. employee training,  training new supplier personnel);

  • Require the supplier to provide your Organisation with copies of data, procedures, access logs, error logs, documentation and other information generated as part of providing the contract services. The supplier should also grant your organisation the right to provide this information to potential successor suppliers.

4. Costs

Transition, termination and timing are a key part of the financial aspects of an exit strategy. Be sure the contract:

5. Personnel

An exit strategy should cover personnel issues, such as: