EU Procurement rules

The Public Contracts (Scotland) Regulations 2006 set out both mandatory and discretionary grounds on which a contractor can be excluded. The grounds include conviction for various kinds of offence as well as issues not linked to a conviction.

One of the discretionary grounds is that a contractor “has committed an act of grave misconduct in the course of that economic operator’s business or profession.” (Section 23 (4) (d) ). There is no requirement for there to have been a conviction in relation to this.

EU Directive 2004/18/EC, from which the regulations are derived, gives contracting authorities discretion to exclude a contractor that “has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate.”

The General Register Office of Scotland and the Scottish Government could have sought to use this discretionary power to exclude CACI from the census contract, but chose not to do so.

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