Tribunal for procurement cases backed by Faculty

The Faculty has given support to plans for a new tribunal in Scotland to deal with complaints about the awarding of public contracts.

In a consultation paper on changes to the public procurement rules in Scotland, the Scottish Government asked whether there was a need for a review body at a level below the courts.

Ministers said they believed a tribunal 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 said it considered there was much to be said for a review body which sat beneath the national courts.

"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," said the Faculty.

It added 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 sided 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," said the Faculty.

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

The full document can be seen at http://www.advocates.org.uk/downloads/news/responses/20150513_procurement.pdf