Questions and answers

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.

Question reference: S2W-09173

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Friday, 18 June 2004
Current Status: Answered by Ross Finnie on 20 July 2004

To ask the Scottish Executive whether it is appropriate to use pens in order to enclose deer prior to shooting them; whether this practice is humane; what evidence it has in respect of the extent to which deer culled in this manner suffer from stress, and how the humaneness of this method of killing deer compares with instant death from a skilled stopper's bullet.

Based on advice on best practice from the State Veterinary Service and the Deer Commission for Scotland, we have no reason to believe that the use of live capture pens to handle wild deer causes undue stress. As with any animal handling system, welfare will largely depend on calm, competent operators.

The production of guidance on the use of this system will be considered by the steering group charged with developing best practice in deer management.

Question reference: S2W-09449

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 20 July 2004

To ask the Scottish Executive what its policy is on whether any public sector employee dismissed for sectarian behaviour should not receive any terminal payment, such as a lump sum payment, in recognition of the unacceptability of such behaviour and whether it requires to amend the contract terms of contracts of employment to secure this objective.

The Civil Service Management Code sets out regulations and instructions to departments and agencies regarding the terms and conditions of service of civil servants. The code provides delegated authority to departments and agencies to apply sanctions as result of disciplinary proceedings as they deem appropriate.

The Scottish Executive has no set tariff of penalties for particular offences and each case is dealt with on its own merits. In cases of gross misconduct the penalty would normally be summary dismissal without notice or any compensatory lump sum payment in lieu of notice.

As the code does not extend to all public sector employees, the relevant organisations will have their own arrangements in relation to the terms and conditions of service for their employees.

Question reference: S2W-09318

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Wednesday, 23 June 2004
Current Status: Answered by Nicol Stephen on 20 July 2004

To ask the Scottish Executive whether its position in respect of the upgrading of the A96 or any part thereof has changed and whether it will include upgrading of the A96 in any forthcoming announcement of trunk road improvements.

Question reference: S2W-09172

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Friday, 18 June 2004
Current Status: Answered by Allan Wilson on 8 July 2004

To ask the Scottish Executive what action it is taking to promote the restoration of Kinloch Castle; whether Kinloch Castle is on the Scottish Civic Trust's buildings at risk register and, if so, what implications this has for the castle's future and whether this renders it eligible for any public funding towards the costs of its restoration.

Question reference: S2W-09317

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Wednesday, 23 June 2004
Current Status: Answered by Allan Wilson on 6 July 2004

To ask the Scottish Executive when it will bring forward details of the replacement to the Livestock Improvement Scheme (LIS); on what date any new scheme is intended to come into force, and whether there will be any gap between the date of cessation of the LIS and commencement of a replacement scheme.

It is currently expected that firm proposals for a scheme to replace the Bull Hire Scheme will be finalised and published in October with a view to obtaining state aid approval and introducing the scheme in early 2005. Hires arranged under the Bull Hire Scheme in response to applications received in September 2003 will continue until late 2005, early 2006. We have no plans to replace the Ram Purchase Scheme and the Shetland Ram Scheme.

Question reference: S2W-08985

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Monday, 14 June 2004
Current Status: Answered by Patricia Ferguson on 5 July 2004

To ask the Scottish Executive whether all written reports by the Chief Executive of the Crown Office and the Procurator Fiscal Service and Head of Legal and Parliamentary Services to it, including to the First Minister, the former Minister for Parliament and the Minister for Parliamentary Business, have been provided to the Holyrood Inquiry; if so, whether the chief executive has provided no such written reports since the 15 August 2003, the date of the last report to be published on the inquiry's website, and if any such written reports have not been provided to the inquiry so far, whether they will now be provided.

Question reference: S2W-08986

Asked by: Fergus Ewing, MSP for Inverness East, Nairn and Lochaber, Scottish National Party
Date lodged: Monday, 14 June 2004
Current Status: Answered by Patricia Ferguson on 5 July 2004

To ask the Scottish Executive whether any (a) written or (b) oral report was made to any of its ministers, including the First Minister, by the Chief Executive of the Crown Office and Procurator Fiscal Service and Head of Legal and Parliamentary Services in March 2002 regarding meetings and discussions of the Holyrood Progress Group.

Chamber and committees