Questions and answers

Question reference: S2W-09691

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Monday, 12 July 2004
Current Status: Answered by Duncan McNeil on 28 July 2004

To ask the Scottish Parliamentary Corporate Body, further to the answer to question S2W-1861 by Mr Duncan McNeil on 28 August 2003, why “experience has shown” that the SPCB could not guarantee to make payments by the 19th of the month following the pay run in which the contributions are collected and what that experience has been; why the SPCB is unable to make an arrangement which complies with this time deadline using direct debit, and when the SPCB will provide a full explanation of this matter to MSPs.

Previously,contributions were paid by a combination of BACS, cheques and direct debits. Inthe case of the direct debit facility, it gave pension providers authority tocollect contributions direct from an SPCB bank account. However, experienceshowed that:

if anindividual’s pension contribution increased by a small amount certain pensionproviders continued to collect the amount previously agreed and refused toaccept any increases of less than £10.00 per month;

pensionproviders were able to take money out of the bank account in situations wherethe Personnel Office had not been notified that a pension wasin place;

pensionproviders were collecting contributions in lump sums making it very difficultto identify for whom the contributions were being collected;

pensionproviders continued to collect contributions for several months after anindividual had ceased employment despite being advised that their employmenthad been terminated;

once a pensioncontribution rate had been set some pension providers would not accept anyrevised amounts, for example, increases due to pay awards, changes to contractedhours or backdated payments.

More importantly, however, new pension legislation changescame into effect from 6 April 2001 which required the SPCB to review itsprocedures. Under the Occupational PensionsRegulatory Authority (OPRA) the new rules for employers’ state that they havean obligation to:

calculate the employers’ and employees’ contributions foreach individual member of staff;

pay the correct amount of contributions over by the 19th of the month following the pay run in which the contributions are collected;

maintain a record of payments made;

provide each pension provider with a schedule as a recordof payments made.

Because of the problemsbeing experienced the SPCB believed that it could not comply with the new OPRArules whilst the then existing direct debit arrangements remained and deemed itnecessary to review and change its procedures. The decision was taken to closedown the direct debit facility and pay all contributions either by cheque, BACSor by standing order. This change gave the SPCB control over this matter toensure that it met its obligations under the new OPRA rules. All pension providers were informed in writing of thedecision.

The SPCB does not believe itcould comply, on behalf of members with all of the obligations placed on themas employers under OPRA rules were it to reinstate the direct debit facilityand therefore has no intention of doing so. This full answer ensures that membershave a full explanation of the matter.

Question reference: S2W-09690

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Monday, 12 July 2004
Current Status: Answered by Duncan McNeil on 28 July 2004

To ask the Scottish Parliamentary Corporate Body whether some pension providers require payments of pension contributions to be made by direct debit and will not accept payment by BACS and, if so, which pension providers these are.

Question reference: S2W-09688

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Monday, 12 July 2004
Current Status: Answered by Duncan McNeil on 28 July 2004

To ask the Scottish Parliamentary Corporate Body, further to the answer to question S2W-1861 by Mr Duncan McNeil on 28 August 2003, whether any MSPs' staff have been adversely affected by the decision to cease making pension payments by direct debit and, if so, whether any details of any such cases were reported to the SPCB.

In total to date there havebeen 10 members’ staff (9 with plans with one provider and 1 with a plan withanother provider) affected by the decision to cease making pensioncontributions from the Parliament’s bank account by direct debit. The SPCB hasbeen kept informed of this issue, including the efforts made to resolve it. TheSPCB has not yet been informed of the most recent case but will be so informedwhen it meets again in September.

Question reference: S2W-09689

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Monday, 12 July 2004
Current Status: Answered by Duncan McNeil on 28 July 2004

To ask the Scottish Parliamentary Corporate Body whether it is committed to ensuring that staff pension contributions are paid on time and at the correct amount and whether achieving this objective takes precedence over the SPCB's position on making such payments by means of direct debit.

In terms of the collectionand pay over of Members’ staff pension contributions, the SPCB acts as agentsfor members. The SPCB is fully committed to ensuring that the correct amount ofpension contributions is collected and paid over on time. The sums arecalculated and collected via payroll system and procedures are in place toensure that accurate records are kept and monies are paid over on time and withan accompanying schedule of payment, in line with OPRA rules. Under currentarrangements compliance with OPRA rules can be guaranteed which was not thecase under the former arrangements whereby providers could collect monies usingthe direct debit facility.

Question reference: S2W-09550

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Friday, 02 July 2004
Current Status: Answered by Ross Finnie on 27 July 2004

To ask the Scottish Executive whether it will recommend that representatives of the Scottish Gamekeepers Association experienced in deer management should be appointed to the Deer Commission for Scotland.

Question reference: S2W-09548

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Friday, 02 July 2004
Current Status: Answered by Ross Finnie on 27 July 2004

To ask the Scottish Executive whether it will introduce legislation to repeal the provisions of section 14 of the Deer (Scotland) Act 1996 that exempt the Deer Commission for Scotland from laws governing the culling of deer.

Question reference: S2W-09552

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Friday, 02 July 2004
Current Status: Answered by Ross Finnie on 27 July 2004

To ask the Scottish Executive whether it has introduced a moratorium on the use of helicopters in deer culling and, if so, whether that moratorium will be made permanent.

In my letter of 9 June tothe Deer Commission for Scotland, I specifically asked the organisation to clarifyhow the Code of Practice guidance on the use of vehicles for driving deer shouldapply to helicopters.

In his initial response tomy letter, the Chairman of the DCS has indicated that a best practice guide onthe use of helicopters in deer management will be prepared and that, whilst DCSwill continue to use helicopters in a logistical and support role in cullingand for deer counting, it will in the meantime observe a voluntary moratoriumon using helicopters to drive deer.

Question reference: S2W-09450

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Tuesday, 29 June 2004
Current Status: Answered by Ross Finnie on 26 July 2004

To ask the Scottish Executive whether it will provide a breakdown of the #140,000 referred to by the Minister for Environment and Rural Development as being the amount by which the Water Industry Commissioner exceeded his permitted expenditure for running his office and, in particular, whether that sum included any amount for the sum due to be paid to former employee, William Hetherington, in respect of his claim to an industrial tribunal.

Question reference: S2W-09434

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Tuesday, 29 June 2004
Current Status: Answered by Tavish Scott on 22 July 2004

To ask the Scottish Executive, with reference to the report in Scotland on Sunday on 27 June 2004 relating to the tender and post-tender process followed by the City of Edinburgh Council for the #60 million extension to the Edinburgh International Conference Centre (EICC), (a) what information it has received about the matter, (b) whether the Executive has offered any advice to the council on the matter, (c) whether one bidder was permitted to alter the details of their bid after being named the preferred bidder, whether this procedure is in accordance with procurement law and whether the Executive has offered any advice on this matter and, if not, whether it will now do so, (d) whether one bidder, the Cala-Morrison consortium, was given specific information that other bidders did not receive, namely, that the council had agreed to rent the offices being built next to the EICC on a 20-year lease at #5.4 million a year, (e) whether providing information to one bidder and not other bidders is a breach of the rules and law governing the tender process, (f) what its position is on whether the council should invite all parties to resubmit their offers and what the reasons are for its position on the matter, (g) whether legal responsibility on such matters lies with the council and, if so, whether any extra costs that may result from, for example, any legal action in respect of any breach of the tender process, should be solely the responsibility of the council and not the Executive, (h) whether it will intervene in respect of this matter, (i) whether the Executive is in regular contact with the council in a similar manner to its regular contact with Her Majesty's Government, (j) whether the Executive is concerned that a director of one of the property developers quoted in the report stated that “None of the other bidders got to consider the deal with a pre-let to the council”, (k) whether the Executive considers that one bidder has been preferred in the tender process, (l) whether, in relation to the Executive's tendering process, all bidders must be treated equally and, in particular, post-tender negotiations must not, in accordance with HM Treasury guidance, be treated preferentially, (m) whether it will now order, or recommend, an investigation into the matter and, if so, by whom such an investigation should be carried out and whether, pending the outcome of such an investigation, the tender process should be the subject of intervention in order to protect the rights of all parties who submitted a tender, (n) whether rival bidders to Cala-Morrison were informed that Cala-Morrison's bid was not “commercially viable” in its original draft and whether the council indicated that the office should be taken by the council on a 20-year lease on terms communicated to Cala-Morrison, but not to rival bidders, (o) whether the Executive has referred the circumstances of the matter to the Auditor General for Scotland and, if no such referral has been made, whether it will now be made, (p) whether the council has referred the matter to the Auditor General and, if no such referral has been made, whether the council will now refer the matter and (q) what action the Executive will now take in relation to this issue.

The conduct of procurement procedures by local authorities is largely a matter for the individual authority concerned, subject of course to any relevant legal requirements such as obligations under EU procurement law. Also, we understand that the procurement procedure in question has not yet been concluded. In light of this, it would not be appropriate for the Executive to comment on the case in question. In response to the specific questions (a) to (q):

(a) the procurement procedure in question is a matter for Edinburgh City Council and Edinburgh International Conference Centre Ltd (EICC). No information has been received by the Executive other than that reported in the media and some background information provided by Edinburgh City Council (the council) to assist the Executive in responding to these questions;

(b) The Executive has not provided advice to the council or EICC on this procurement procedure;

(c) The question of whether or not in fact one bidder was permitted to alter the details of its bid is a matter for the council and EICC. Caselaw of the European Court of Justice suggests that it is not appropriate to allow only one bidder to alter the terms of its bid if competition might be distorted as a result (for example, where the bidder would gain an unfair advantage over its competitors). The Executive does not routinely advise councils on procurement matters, although informal advice on procurement policy and EU procurement law obligations is provided on an ad hoc basis as and when requested. To date, the council and EICC have not sought advice from the Executive;

(d) The question of whether or not one bidder was given specific information that other bidders did not receive is a matter for the council and EICC;

(e) Caselaw of the European Court of Justice suggests that providing material information to some bidders and not to others, to the effect that recipients gain an advantage over their competitors, would be contrary to EU procurement law;

(f) This is a matter for the council and EICC subject to any over-riding requirements of EU procurement law;

(g) Failure to comply with EU procurement law is actionable in the Court of Session. Complaints may be brought by aggrieved bidders who can seek interdicts and/or damages against the individual contracting authority. Costs and damages associated with Court of Session actions for non-compliance are the responsibility of the contracting authority and complainant(s). Complaints regarding failure to comply with EU procurement law can also be made to the European Commission. If the European Commission brings legal proceedings, responsibility rests with the Member State. Since procurement is a devolved matter, the Executive takes the lead in handling European Commission complaints regarding Scottish public procurement. The council has advised that a contract has not yet been let and therefore in such circumstances damages may not be applicable;

(h) The Executive has no plans to intervene in what is essentially a matter for the council and EICC;

(i) The Executive has regular contacts with Edinburgh City Council

(j) It would be inappropriate for the Executive to comment at this stage on what is essentially a matter for the council and EICC;

(k) It would be inappropriate for the Executive to comment at this stage on what is essentially a matter for the council and EICC;

(l) It is a fundamental principle of both EU procurement law and the Executive’s procurement policies that all bidders must be treated fairly and equally. Also, post-tender negotiations must not be conducted in a manner which results in preferential treatment for particular bidders or which results in the distortion of competition. Procurement is a devolved matter and HM Treasury Guidance has in some cases been superseded by Executive guidance;

(m) As explained in the response to question (g) above, aggrieved bidders have the right of redress through the Court of Session and/or complaint to the European Commission. Bidders may instigate proceedings at their own discretion should they believe that they risk being disadvantaged through failure on the part of the council and/or EICC to comply appropriately with EU procurement law. I understand that the EICC and the council has not yet entered into a contract with any of the bidders. Against this background and at this stage, the Executive does not see any need to order or recommend a separate investigation;

(n) This is a matter for the council and EICC;

(o) The Executive has not referred the matter to the Auditor General for Scotland, nor does it envisage doing so in the future;

(p) This is a matter for the council, and

(q) Having made enquiries of the council in preparing this response, the Executive has been advised that the council and EICC are seeking legal advice regarding the various issues that have been raised by bidders for this contract and that a decision on the way forward has not yet been taken. As things stand, therefore, the Executive has no plans to take action in respect of this matter.

Question reference: S2W-09565

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Tuesday, 06 July 2004
Current Status: Answered by Allan Wilson on 21 July 2004

To ask the Scottish Executive, further to the answer to question S2W-9427 by Allan Wilson on 5 July 2004, whether it will place the project plan submitted by Scottish Natural Heritage in the Scottish Parliament Information Centre; what advice has been given in the tender documentation to tenderers in respect of price, and what indication has been given to them in respect of the total area required for the building broken down into circulation and non-circulation space.

SNH’s project plan is an evolving document that reflects all the elements needed to make the move to Inverness happen. The plan currently contains some human resource information that has yet to be put to staff, and some commercially-sensitive information that is the subject of a tendering exercise. It is therefore inappropriate to put the project plan into the public domain at this stage. The plan will be further updated in the autumn after the staff consultation has taken place and the building contract has been awarded. A copyof the plan will be placed in the Scottish Parliaments Reference Centre at thatstage. The remainder of your question raises issues which are operational mattersfor SNH.

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