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One of the several discretionary grounds for exclusion relates to social, environmental and labour law obligations.  These obligations include any relevant national and European law, as well as relevant collective agreements and specific international agreements.

Bidders may be excluded if you can show they have breached any of these obligations. This exclusion ground is discretionary therefore for you to decide if exclusion is appropriate.  You should be proportionate in your decision, taking into account:

  • the size of the contracts,
  • the relevance of the breach, and
  • its impact on the operational and reputational risk to the contract delivery

Bankrupt or Insolvent Businesses

Where a bidder is bankrupt or subject to insolvency proceedings, you can choose whether to exclude it from the procurement exercise. 

Potential evidence could include:

  • copies of accounts verifying they have sufficient liquidity to perform contract
  • its business plan outlining steps the potential supplier will take to address concerns, or
  • references from other recent customers

When considering whether to exclude such a bidder you should consider contract delivery potential risks, such as:

  • the impact this may have on the sub-contracting supply chain. 
  • the scale of the contract
  • potential consequences of the contract failing.  

Additionally, organisations should take into account the potential benefits of awarding a contract to such a bidder. These can include:

  • providing opportunities to contribute to increased employment in communities
  • the wellbeing of local and regional communities  
  • helping unlock the innovation or economic potential with local businesses.
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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 amoutn 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 aparent "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.

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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. 

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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

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