Annex A - Compliance with Legislation

Section 15(5) of the Procurement Reform (Scotland) Act 2014 and the published Statutory Guidance, sets out what should be included in Transport Scotland’s Procurement Strategy. This section can be broadly divided into two parts, firstly how specific tasks will be achieved as set out in section 15(5) (a) and (d) and secondly what policies and approaches are in place as set out in section 15(5) (b) and (c).

In terms of the requirements of section 15(5) (a) and (d), Transport Scotland is required to set out how it intends to ensure that:

1. The regulated procurements will contribute to the carrying out the functions and achievement of our purposes (section 15(5)(a)(1) of the Act)
2. The regulated procurements will deliver value for money (section 15(5)(a)(2) of the Act)
3. The regulated procurements will be carried out in compliance with the duty to treat relevant economic operators equally and without discrimination (section 15(5)(a)(3) of the Act)
4. The regulated procurements will be carried out in compliance with the duty to act in a transparent and proportionate manner (section 15(5)(a)(3) of the Act)
5. The regulated procurements will be carried out in compliance with the sustainable procurement duty (section 15(5)(a)(3) of the Act)
6. So far as reasonably practicable, the following payments are made no later than 30 days after the invoice (or similar claim) relating to payment is presented:
   • payments due by the authority to a contractor
   • payments due by a contractor to a sub-contractor
   • payments due by a sub-contractor to a sub-contractor (section 15(5)(d) of the Act)

The following statements demonstrate how Transport Scotland will ensure the delivery of the above requirements.

1. Regulated procurements will contribute to carrying out Transport Scotland’s functions and achieving the purposes:
• Transport Scotland’s Corporate Procurement Strategy and the commitments set out the strategic direction of its procurement activity for 2024-2025 and progress on delivery will be reported on a quarterly basis to Senior Management through the Procurement Group
• Robust investment decision making and procurement approval processes are in place to provide assurance that the decision to invest and place a contract directly supports a corporate delivery commitment and that the selection of an appropriate procurement route has been made in accordance with policy and legislation
• Effective contract and supplier management will ensure delivery in accordance with the contract terms
• Stakeholder engagement will be undertaken during project development and procurement preparation
• Corporate delivery commitments will be communicated to all Transport Scotland staff
2. Regulated procurements will deliver value for money:
• Robust investment decision making and procurement approval processes are in place to provide justification for the requirement and assurance that value for money will be obtained
• Early market engagement is undertaken as appropriate to enable areas of savings, added value and innovation to be identified
• Collaborative opportunities are identified during preparation of a project procurement strategy
• Effective contract and supplier management procedures are in place to enable delivery in accordance with the contract terms
• The lessons learned process allows identification of areas for improvement
• Effective stakeholder engagement will be undertaken, both internally and externally, to drive innovation and ensure that purchase requirements are fully understood
• Analysis of previous procurement activity and contract performance data will be undertaken to identify potential areas of savings and added value
• Supplier feedback system enables performance feedback to suppliers on a regular basis
3. Regulated procurements will be carried out in compliance with its duty to treat relevant economic operators equally and without discrimination:
• A project procurement strategy approval process is in place to provide assurance that the selection of an appropriate procurement route has been made in accordance with policy and legislation
• Early market engagement is undertaken and, where appropriate, industry days are hosted
• The Public Contracts Scotland portal is used for the publication of contracts and primary contractor’s sub-contract opportunities where appropriate
• An appropriate lot structure is considered and developed for frameworks
• Transport Scotland’s Contracts Register is published on Public Contracts Scotland
• Suitable feedback is provided to unsuccessful tenderers
• Proportionate requirements are specified for insurance and financial requirements at tender stage
4. Regulated procurements will be carried out in compliance with its duty to act in a transparent and proportionate manner:
• A procurement strategy approval process is in place to provide assurance that the selection of an appropriate procurement route has been made in accordance with policy and legislation
• The Public Contracts Scotland portal is used for publication of contract and main contractors’ sub-contract opportunities where appropriate
• The use of Meet the Buyer events and industry days
5. Regulated procurements will be carried out in compliance with the sustainable procurement duty:
• The Scottish Government’s recommended sustainable procurement tools are utilised to identify and address how Transport Scotland can optimise economic, social and environmental outcomes of procurement activity
• Project procurement strategies require to be approved prior to procurement commencing. These take account of sustainable procurement practices and the output of the sustainability tools
• Sustainable procurement principles and requirements are embedded in project and contract documentation, processes, and procedures
• Transport Scotland will engage with stakeholders to advance its scientific and engineering knowledge and, where practical, enhance the natural and physical environment
• Transport Scotland provide sustainable procurement training to staff throughout the organisation
6. Payments are made no later than 30 days after the invoice (or similar claim) relating to the payment is presented including:

1. 1. Payments due by the authority to a contractor
   2. Payments due by a contractor to a sub-contractor

• • Transport Scotland is committed to the prompt payment of invoices for works, goods and services and aims to settle all undisputed invoices within contract terms and also in line with the Scottish Government’s 10-day payment policy
  • Prompt payment clauses requiring a 30-day payment term are embedded within contracts and these are required to be replicated throughout the supply chain
  • Project Bank Accounts will be in place for all works contracts of value equal to or greater than £5 million in accordance with the Scottish Government requirements

In terms of section 15(5) (b) and (c) of the Procurement Reform (Scotland) Act 2014 Transport Scotland is required to set out the agency’s general policy on:

1. The use of community benefit requirements (section 15(5)(b)(1) of the Act)
2. Consulting and engaging with those affected by its procurements (section 15(5)(b)(2) of the Act)
3. The payment of a living wage to persons involved in producing, providing, or constructing the subject matter of regulated procurements (section 15(5)(b)(3) of the Act)
4. Promoting compliance by contractors and sub-contractors with the Health and Safety at Work etc. Act 1974 (c. 37) and any provision made under that Act (section 15(5)(b)(4) of the Act)
5. The procurement of fairly and ethically traded goods and services (section 15(5)(b)(5) of the Act)
6. How Transport Scotland intend to approach its regulated procurements involving the provision of food to:
   1. improve the health, wellbeing, and education of communities in the authority’s area (section 15(5) (c) of the Act)
   2. promote the highest standards of animal welfare (section 15(5) (c) of the Act)

The following statements demonstrate how Transport Scotland will ensure the delivery of the above requirements.

1. General policy on the use of community benefit requirements:

• • Transport Scotland require that the potential for community benefits to be delivered is considered at procurement preparation stage for regulated procurements, prior to approval of the project procurement strategy. When developing any contract specification, consideration must be given to the suitability of including community benefit clauses, such as the requirement to provide targeted recruitment and training. Where appropriate, the delivery of community benefits will be a contractual commitment
  • The delivery of community benefits through Transport Scotland’s contracts continues to provide opportunities for targeted training and recruitment, including training and jobs for long-term unemployed people, development of the skills and qualifications of the existing workforce, apprenticeships and job start positions and professional graduate training opportunities

This policy will be monitored and reported on by:

• • Undertaking contract management to ensure delivery in accordance with contractual requirements
  • Undertaking procurement strategy compliance checks to provide assurance that the requirements identified at development stage are carried through to the contract
  • Summarising the outcome of the monitoring in Transport Scotland’s Annual Procurement Report, in compliance with section 21 of the Procurement Reform (Scotland) Act 2014

2. General policy on consulting and engaging with those affected by Transport Scotland’s procurements:

• • Consultation and engagement with key stakeholders affected by procurement activity is embedded in the processes, both during project development and any subsequent procurement activity. This consultation may include public engagement, consultations with other statutory bodies (such as SEPA and NatureScot), consultation with suppliers at open days or market engagement events and meetings with specialist groups, such as the Civil Engineering Contractors Association and the Association for Consultancy and Engineering. The appropriate level of consultation and engagement for projects will be identified at the procurement development stage and feedback from the consultation will be reported in the procurement strategy. This provides assurance that an appropriate level of consultation has been undertaken to inform the decision making process
  • Information about the progress of major projects is supported by an appropriate approach to communication. This may include the use of the agency’s website, specific project websites and press releases to provide progress reports and other information of interest to the public about major projects throughout their lifecycle 
  • Transport Scotland advertise tender opportunities for lower value procurements and those regulated under the Procurement Reform (Scotland) Act 2014 through the Public Contracts Scotland portal. Procurements valued at over UK thresholds are also advertised on the Find a Tender service

This policy will be monitored and reported on by:

• • Undertaking lessons learned reviews to identify any issues arising from the consultation
  • Undertaking compliance checks to ensure that the level of consultation stated in the procurement strategy is proportionate and appropriate
  • Undertaking compliance checks on procurements to ensure that they have been advertised appropriately

3. General policy on the payment of a living wage to persons involved in producing, providing, or constructing the subject matter of regulated procurements:

• • Transport Scotland understands the need to support a society that offers equal opportunity and ensures the benefits from a stronger economy are shared fairly
  • Transport Scotland became an Accredited Living Wage employer in 2016 and considers payment of the Real Living Wage to be a significant indicator of a supplier’s commitment to its workforce. Transport Scotland is committed to supporting the Scottish Government in its objective of implementing the payment of the real Living Wage through its procurement activities in line with updates to the Procurement Reform (Scotland) Act 2014: Statutory Guidanceand encourages a proactive approach from its contractors and sub-contractors by utilising scored and non-scored fair work practice award criteria within the Invitations to Tender in relevant contracts
  • Transport Scotland undertakes to include relevant and proportionate questions on Fair Work First for all regulated procurements in line with SPPN 6/2021, the Scottish Government’s Fair Work First Guidance which was published in March 2023 and their supplementary guidance on Fair Work Practices published in February 2024
  • Consideration of the need to include a scored question on a supplier’s approach to fair employment, including the Real Living Wage, are considered at the procurement strategy stage. Transport Scotland include a pass/fail question for suppliers in its procurements asking them commit to paying the Real Living Wage, where it is relevant and proportionate to do so

This policy will be monitored and reported on by:

• • Undertaking contract management to ensure delivery in accordance with contractual requirements
  • Undertaking procurement strategy compliance checks to provide assurance that the requirements identified at development stage were carried through to the contract

4. General policy on promoting compliance by contractors and sub-contractors with the Health and Safety at Work etc. Act 1974 (c. 37) and any provision made under that Act:

• • Health and safety risks are taken into consideration at the design stage of a project as well as during preparation for procurement. Factors pertaining to specific health and safety requirements are recorded in project procurement strategies on a case-by-case basis. These will vary depending on the nature of the works, services or goods being purchased. The supplier will be required to provide information in its tender to demonstrate compliance with the necessary legislation, such as the Construction Design and Management Regulations 2015

This policy will be monitored and reported on by:

• • Undertaking contract management to ensure delivery in accordance with contractual requirements
  • Undertaking procurement strategy compliance checks to provide assurance that the requirements identified at development stage were carried through to the contract

5. General policy on the procurement of fairly and ethically traded goods and services:

• • Consideration of specific requirements and availability in relation to fairly and ethically traded goods and services will be considered at project development stage and recorded in the project procurement strategy
  • The use of the Single Procurement Document for above threshold procurements allows consideration of whether a potential supplier has been convicted of certain offences and/or committed any acts of professional misconduct and allows suitability to be assessed

This policy will be monitored and reported on by:

• • Undertaking contract management to ensure delivery in accordance with contractual requirements
  • Undertaking procurement strategy compliance checks to provide assurance that the requirements identified at development stage were carried through to the contract

6. General policy on how Transport Scotland intend to approach its regulated procurements involving the provision of food to:

• • Improve the health, wellbeing, and education of communities in the authority’s area
  • Promote the highest standards of animal welfare

This is not applicable to Transport Scotland as there are no requirements to purchase food using regulated procurements.