25 November 2015
RMT Press Office
Expert legal advice shows that the Scottish Government does not need to tender Life Line CalMac Ferry Services.
On the day that the Scottish Parliament is due to debate a motion supporting the retention of lifeline CalMac Ferry services in the public sector, new legal advice provided by EU procurement law expert Gordon Nardell QC has shown that by applying a provision known as the “Teckal exemption” the Scottish Government does not need to put the service out to tender.
The advice was provided to the main CalMac union, RMT, who have also pointed to a clause in the Invitation to Tender for the ferry contract which gives the Scottish Government the unequivocal right to cancel a tendering process at any time without any liability.
The tendering process has boiled down to a straight fight between publicly owned CalMac and corporate giant SERCO.
The advice provided by the QC (Para 6, Clause b & c attached) states,
“..the Teckal exemption is capable of applying to the operation of services governed by the 1992 Regulation. On the information available to me, the relationship of the operating company (CalMac Ferries Limited) with the Scottish Ministers, and the nature of its activities, satisfy the control test. On the available information about the relevant activities, the functional test also appears to be satisfied.
….On that basis, that neither the 1992 Regulation nor the State aid rules oblige the Scottish Ministers to hold a competitive tendering exercise before awarding that company a public service contract for the Clyde Hebrides services.”
RMT General Secretary Mick Cash said:
“This advice from a highly respected specialist source clearly demonstrates that the Scottish Government does not have to continue with the unnecessary and unpopular tendering of CalMac Ferry services.
We are therefore calling on the Scottish Government to stand up for Scotland and the communities that rely on these lifeline ferry services and use its powers apply the Teckal exemption and to also cancel the tendering process forthwith.
At the very least they should carefully examine this advice and do what they have not done to date which is explore all options to cancel the tendering and keep CalMac public.”
07831 465 103
Notes to Editors
1. The full advice of Gordon Nardell QC is attached
2. Vol 1, Para 5.4.1 of the Interim ITT states
“Transport Scotland may elect to discontinue or suspend the Procurement Process at any time without selecting a Successful Participant and without giving prior notice to the Participants. Transport Scotland may do so without responsibility or liability to any Participant and the Successful Participant resulting from such discontinuation or suspension, including any liability for any costs or expenditure incurred by the Participant) or inconvenience caused.”