On the 3rd of October, the Scottish Government introduced the Scottish Procurement Reform Bill to the Scottish Parliament, with many taking the optimistic view that this would be present fantastic opportunities to exclude companies from tendering for public contracts, if they blacklist workers. To cement this, the government issued a policy note on the 20th November entitled ‘Exclusion from public contracts of companies which engage in blacklisting’.
On the face of it, it looks like a step in the right direction. The key points are; the ability to exclude companies from bidding if they commit an act of grave misconduct unless they can prove they have taken ‘appropriate remedial action’, three added questions to the pre qualification questionnaire and a new clause which provides for a termination of contract if company breaches relevant legislation, during the course of that contract. The note also attempts to define ‘remedial action’.
Sound good so far? Then lets get down to the issues. The problem with the policy note is, that it isn’t biding in law and the grounds for exclusions are discretionary. The difficulty with discretionary grounds of exclusion is that any exclusion must be proportionate to the scale and nature of the offence or misconduct. Each case has to be taken in its own merit. The first key point, mentioned above, talks about the company showing that it has taken the ‘appropriate remedial steps’. What do they mean by appropriate? Could it be seen to be ‘appropriate’ if the company, by taking part in the Construction Workers Compensation Scheme offers an ex employee £1,000? The same rules apply to the termination of a contract during the course of that contract.
To further muddy the waters at the weekend, the press reported that those companies involved in the joint venture delivery company, hubCo, which was set up by the Scottish Futures Trust, an arms length organisation of the Scottish Government, to deliver infrastructure projects, is to be excluded from the new bill. Companies like serial blacklisters, Sir Robert McAlpine and BAM would be excluded.
So, to summarise, all that is on offer, that is better than we currently have, is that we’ll have three added questions to the standard Pre Qualification Questionnaire, except for those companies that are part of hubCo.
All of this means that we have got a lot of work to do. We must step up our campaign, working with Unite and Neil Findlay to get amendments to the bill that tightens up the current legislation. This must also be backed up with statutory regulation or mandatory guidance. Finally, there must be no exemptions. The companies that are part of hubCo are still working on public contracts and should be treated the same as any other public contract.
The Scottish Government, I think, have still to get the message.