Faculty lends support to procurement tribunal plan

A proposal for a new tribunal in Scotland to deal with complaints about the awarding of public contracts has been given the support of the Faculty of Advocates.

The idea was put forward by the Scottish Government In a consultation paper on changes to the public procurement rules in Scotland. It suggested that a review body at a level below the courts to hear cases regarding alleged infringement of the rules would be likely to provide the most effective form of review.

In its response, the Faculty comments: “Although we are not persuaded that procedure before such a body would necessarily be cheaper or faster than immediate recourse to the courts, we consider that the principal advantages would be the accrual, within the review body, of a degree of specialist expertise and the likelihood of a fair degree of consistency in the review body’s judgments.”

It adds that dedicated review bodies in countries such as Germany and Austria had developed considerable specialist expertise.

On the question of whether the review body should be established as a tribunal or take some other form, for example, as a Scottish Procurement Ombudsman, the Faculty sides with a tribunal within the existing Scottish tribunals system.

“Such a tribunal would be able to operate by reference to general rules of procedure applicable to the Scottish tribunals as a whole and its judgments would fit readily into a clearly discernible system of appeals”, Faculty states.

“An ombudsman is unlikely to be as well equipped as a tribunal to deal with the legal complexities raised by public procurement litigation.”

Click here to view the submission.