Scottish government says firms may be denied public sector work under plan to assess bidders’ records on a case-by-case basis

The Scottish government has detailed plans to withhold public sector contracts from construction firms involved in blacklisting who remain unrepentant.

Building revealed in May that the Scottish government had invited trade unions to advise it on ensuring public procurement north of the border was untainted by blacklisting following similar moves by around two dozen local authorities around the UK.

Now, officials have ruled out an automatic ban on firms involved in past blacklisting but have suggested companies bidding for work will be assessed on a “case-by-case” basis.

A Scottish government spokesperson said: “We are totally opposed to blacklisting…we expect companies which are awarded public contracts to maintain high standards of business and professional conduct.

“Given the seriousness of this matter and the impact it has had on peoples’ lives we are looking to amend our procurement processes to identify any firms wishing to bid for public contracts that have been involved in blacklisting activity and where identified, what remedial action they have taken. 

“The company’s continued participation in the competition will be assessed on a case-by-case basis and there can be no automatic ban. With this in mind we are working closely with unions with a view to developing guidelines for purchasers on the issue of blacklisting by potential suppliers and these discussions are on-going.”

The spokesperson added: “We are not aware of any evidence to suggest that blacklisting has been used in connection with any contracts awarded by the Scottish Government or its agencies.”

However, some lawyers have cast doubt on the plans.

Michael McAuley, a partner at Dundas & Wilson, told the Scotland on Sunday newspaper that blocking bids from firms for public sector contracts would be fraught with difficulty and subject to legal challenges.

He said that under public procurement tendering laws, state bodies are only allowed to exclude a company where there is evidence of ‘grave misconduct’.

“It’s likely that blacklisting, if proved, could constitute grave misconduct, but that can only be done on the basis of individual companies,” he told the paper. “The major issue would be establishing to what extent a company was involved.”