Procurement Bill [HL] (HL Bill 4)

Procurement Bill [HL]Page 10

(3)Before publishing the Wales procurement policy statement, the Welsh
Ministers must—

(a)carry out such consultation as the Welsh Ministers consider
appropriate,

(b)5make any changes to the statement that appear to the Welsh Ministers
to be necessary in view of responses to the consultation, and

(c)lay the statement before the Senedd.

(4)The Welsh Ministers must withdraw the Wales procurement policy statement
if, before the end of the period of 40 days beginning with the day on which the
10statement is laid before the Senedd, the Senedd resolves that the statement be
annulled.

(5)When calculating the period of 40 days for the purposes of subsection (4),
ignore any period during which the Senedd is dissolved or in recess for more
than four days.

(6)15The Welsh Ministers must keep the Wales procurement policy statement under
review.

(7)The Wales procurement policy statement may be amended or replaced by a
subsequent statement, and this section applies in relation to any amended or
replacement statement as it applies in relation to the original statement.

(8)20The following contracting authorities must have regard to the Wales
procurement policy statement—

(a)a devolved Welsh authority, except in relation to a reserved
procurement arrangement or transferred Northern Ireland
procurement arrangement;

(b)25a contracting authority other than a devolved Welsh authority in
relation to a devolved Welsh procurement arrangement.

(9)But subsection (8) does not apply—

(a)to private utilities;

(b)in relation to the award of a contract—

(i)30in accordance with a framework, or

(ii)by reference to suppliers’ membership of a dynamic market.

(10)In this section “the Senedd” means Senedd Cymru.

Part 3 Award of public contracts and procedures

35Chapter 1 Preliminary steps

14 Planned procurement notices

(1)Before publishing a tender notice, a contracting authority may publish a
planned procurement notice.

(2)40A “planned procurement notice” means a notice setting out—

(a)that the contracting authority intends to publish a tender notice, and

(b)any other information specified in regulations under section 86.

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(3)A “qualifying planned procurement notice” means a planned procurement
notice published at least 40 days but not more than 12 months before the day
on which the tender notice is published.

(4)See section 52(4) for provision for reduced tendering periods in cases where a
5qualifying planned procurement notice has been published.

15 Preliminary market engagement

(1)Before publishing a tender notice in respect of a public contract, a contracting
authority may engage with suppliers and other persons for the purpose of—

(a)developing the authority’s specifications and approach to the
10procurement;

(b)designing a procedure, conditions of participation or award criteria;

(c)preparing the tender notice and associated tender documents;

(d)identifying suppliers that may be able to supply the goods, services or
works required;

(e)15identifying likely contractual terms;

(f)building capacity among suppliers in relation to the contract being
awarded.

(2)Engagement under subsection (1) is called “preliminary market engagement”.

(3)In carrying out preliminary market engagement, a contracting authority must
20take steps to ensure that—

(a)suppliers participating in the preliminary market engagement are not
put at an unfair advantage, and

(b)competition in relation to the award of the public contract is not
otherwise distorted.

(4)25Subsection (5) applies if a contracting authority considers that—

(a)a supplier’s participation in preliminary market engagement has put
the supplier at an unfair advantage in relation to the award of a public
contract, and

(b)the advantage cannot be avoided.

(5)30The contracting authority must treat the supplier as an excludable supplier in
relation to the award of the contract.

16 Preliminary market engagement notices

(1)Before carrying out preliminary market engagement, a contracting authority
may publish a preliminary market engagement notice.

(2)35A “preliminary market engagement notice” means a notice setting out—

(a)that the contracting authority intends to conduct preliminary market
engagement, and

(b)any other information specified in regulations under section 86.

17 Duty to consider lots

(1)40Before publishing a tender notice in respect of a public contract, a contracting
authority must consider—

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(a)whether the goods, services or works to be supplied under the contract
could reasonably be supplied under more than one contract, and

(b)whether such contracts could appropriately be awarded by reference to
lots.

(2)5If the contracting authority considers that the goods, services or works could
reasonably be supplied under more than one contract and such contracts could
appropriately be awarded by reference to lots, the authority must—

(a)arrange for the award of the contract or contracts by reference to lots, or

(b)provide reasons for not doing so.

10Chapter 2 Competitive award

Terms of a procurement

18 Award of public contracts following a competitive procedure

(1)A contracting authority may award a public contract to the supplier that
15submits the most advantageous tender in a competitive tendering procedure.

(2)The “most advantageous tender” is the tender that the contracting authority
considers best satisfies the award criteria when assessed by reference to—

(a)the assessment methodology under section 22(3)(a), and

(b)the relative importance of the criteria under section 22(3)(b).

(3)20In assessing which tender best satisfies the award criteria, a contracting
authority—

(a)must disregard any tender from a supplier that does not satisfy the
conditions of participation;

(b)may disregard any tender from a supplier that—

(i)25is not a United Kingdom supplier or treaty state supplier, or

(ii)intends to sub-contract the performance of all or part of the
contract to a supplier that is not a United Kingdom supplier or
treaty state supplier;

(c)must disregard any tender which materially breaches a procedural
30requirement set out in the tender notice or associated tender
documents.

(4)The reference to a tender breaching a procedural requirement includes a
reference to a supplier breaching a procedural requirement in relation to the
tender.

(5)35A breach is material only if the contracting authority considers that ignoring it
would put the tender at an unfair advantage.

(6)See sections 26 and 28 for provision about disregarding tenders from suppliers
that are excluded or excludable suppliers or that are sub-contracting to
excluded or excludable suppliers.

(7)40See sections 32 and 33 for provision about reserving public contracts to
supported employment providers and qualifying public service mutuals.

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(8)See section 34 for provision about disregarding tenders from suppliers that are
not members of a dynamic market.

(9)In this section “procedural requirement” includes a requirement that a supplier
provide information.

19 5Competitive tendering procedures

(1)Before awarding a public contract under section 18, a contracting authority
must carry out a competitive tendering procedure in accordance with a tender
notice and any associated tender documents.

(2)A “competitive tendering procedure” is—

(a)10a single-stage tendering procedure without a restriction on who can
submit tenders (an “open procedure”), or

(b)such other competitive tendering procedure as the contracting
authority considers appropriate for the purpose of awarding the public
contract.

(3)15A contracting authority must ensure that the procedure is a proportionate
means of awarding the public contract, having regard to the nature, complexity
and cost of the contract.

(4)A competitive tendering procedure other than an open procedure—

(a)may limit the number of participating suppliers, generally or in respect
20of particular tendering rounds or other selection processes;

(b)may provide for the refinement of award criteria in accordance with
section 23;

(c)may not permit the participation of suppliers that did not submit a
tender in the first round of tendering or that were excluded following
25an earlier round.

(5)A competitive tendering procedure other than an open procedure may provide
for the exclusion of suppliers—

(a)by reference to conditions of participation (see section 21);

(b)by reference to an intermediate assessment of tenders;

(c)30that are not United Kingdom suppliers or treaty state suppliers;

(d)that intend to sub-contract the performance of all or part of the contract
to a supplier that is not a United Kingdom supplier or treaty state
supplier.

(6)The reference in subsection (5)(b) to the exclusion of suppliers by reference to
35an intermediate assessment of tenders is a reference to the exclusion of
suppliers by reference to which tenders best satisfy the award criteria at the
point of exclusion, when assessed by reference to—

(a)the assessment methodology under section 22(3)(a), and

(b)the relative importance of the criteria under section 22(3)(b).

(7)40A competitive tendering procedure may, if a contract is being awarded by
reference to lots, limit the number of lots in respect of which any one supplier
can submit a tender.
See sections 27, 28 and 30 for provision about excluding suppliers that are
excluded or excludable suppliers, that are sub-contracting to excluded or
45excludable suppliers or for improper behaviour.

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(9)See sections 32 and 33 for provision about reserving public contracts to
sheltered employment providers and qualifying mutual societies.

(10)See section 34 for provision about excluding suppliers that are not members of
a dynamic market.

20 5Tender notices and associated tender documents

(1)A contracting authority must publish a tender notice for the purpose of—

(a)inviting suppliers to submit a tender as part of an open procedure, or

(b)in the case of a competitive procedure other than an open procedure—

(i)inviting suppliers to submit a request to participate in the
10procedure, or

(ii)where no such invitation is made, inviting suppliers to submit
their first, or only, tender as part of the procedure.

(2)A “tender notice” means a notice setting out—

(a)that a contracting authority intends to award a public contract under
15section 18, and

(b)any other information specified in regulations under section 86.

(3)A contracting authority must provide any associated tender documents in
accordance with the tender notice.

(4)“Associated tender document” means, in relation to a tender notice, a
20document setting out information specified in regulations under section 86 that
supplements that set out in the tender notice.

21 Conditions of participation

(1)A contracting authority may set conditions of participation in relation to the
award of a public contract under section 18 only if it is satisfied that the
25conditions are a proportionate means of ensuring that suppliers have—

(a)the legal and financial capacity to perform the contract, or

(b)the technical ability to perform the contract.

(2)A “condition of participation” is a condition that a supplier must satisfy if the
supplier is to be awarded the public contract.

(3)30A condition set under subsection (1)(b) may relate to suppliers’ qualifications,
experience or technical ability, but may not—

(a)require suppliers to have been awarded a contract by a particular
contracting authority,

(b)break the rules on technical specifications in section 24, or

(c)35require particular qualifications without allowing for their equivalents.

(4)When considering whether a condition is proportionate for the purposes of
subsection (1) a contracting authority must have regard to the nature,
complexity and cost of the public contract.

(5)A condition of participation may require the provision of evidence that is
40verifiable by a person other than the supplier.

(6)If a supplier does not satisfy a condition of participation, the contracting
authority may exclude the supplier from participating in, or progressing as
part of, the competitive tendering procedure.

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(7)A supplier is to be treated as satisfying a condition of participation to the extent
that a supplier associated with the supplier satisfies the condition.

(8)For the purposes of this section, a supplier is associated with another supplier
if—

(a)5the suppliers are submitting a tender together, or

(b)the contracting authority is satisfied that the suppliers will enter into
legally binding arrangements to the effect that—

(i)the supplier will sub-contract the performance of all or part of
the contract to the other, or

(ii)10the other supplier will guarantee the performance of all or part
of the contract by the supplier.

22 Award criteria

(1)In this Act, “award criteria” means criteria set in accordance with this section
against which tenders may be assessed for the purpose of awarding a public
15contract under section 18 (award following competitive procedure).

(2)In setting award criteria, a contracting authority must be satisfied that they—

(a)relate to the subject-matter of the contract,

(b)are sufficiently clear, measurable and specific,

(c)do not break the rules on technical specifications in section 24, and

(d)20are a proportionate means of assessing tenders, having regard to the
nature, complexity and cost of the contract.

(3)In setting award criteria, a contracting authority must—

(a)describe how tenders are to be assessed by reference to them and, in
particular, specify whether failure to meet one or more criteria would
25disqualify a tender (the “assessment methodology”), and

(b)indicate their relative importance by—

(i)weighting each as representing a percentage of total
importance,

(ii)ranking them in order of importance, or

(iii)30describing it in another way.

(4)In setting award criteria for the assessment of tenders by reference to lots, a
contracting authority—

(a)may limit the number of lots that may be awarded to any one supplier,
and

(b)35in doing so, must provide an objective mechanism for supplier
selection in circumstances where a supplier would otherwise exceed
the limit.

(5)In subsection (2), the reference to the subject-matter of a contract includes a
reference to—

(a)40the goods, services or works to be supplied under the contract,
including in respect of any aspect of their production, trading or other
stage in their life-cycle;

(b)how or when those goods, services or works are to be supplied;

(c)the qualifications, experience, ability, management or organisation of
45staff where those factors are likely to make a material difference to the
quality of goods, services or works being supplied;

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(d)price, other costs or value for money in all the circumstances.

(6)In the case of a light touch contract, the reference to the subject-matter of the
contract also includes a reference to—

(a)the views of an individual for whose benefit the services are to be
5supplied (a “service recipient”), or of a person providing care to a
service recipient, in relation to—

(i)who should supply the services, and

(ii)how and when they should be supplied;

(b)the different needs of different service recipients;

(c)10the importance of proximity between the supplier and service
recipients for the effective and efficient supply of the services.

23 Refining award criteria

(1)A contracting authority may refine an award criterion as part of a competitive
tendering procedure other than an open procedure if—

(a)15the tender notice or associated tender documents provide for the
refinement of the criterion, and

(b)the authority is yet to invite suppliers to submit tenders to be assessed
under section 18 (award following competitive procedure).

(2)A contracting authority may, in consequence of refining an award criterion
20under subsection (1), refine the indication of the relative importance of the
award criteria under section 22(3)(b).

(3)A contracting authority may not make a refinement under this section if it
would result in award criteria that would, had the refinement been made
earlier, have allowed one or more suppliers that did not progress beyond an
25earlier round or selection process to have done so.

(4)A contracting authority must modify and republish or provide again the
tender notice and any associated tender documents affected by refinements
under this section.

24 Technical specifications

(1)30The terms of a procurement may not refer to design, a particular licensing
model or a description of characteristics in circumstances where they could
appropriately refer to performance or functional requirements.

(2)The terms of a procurement may not refer to United Kingdom standards
unless—

(a)35there is no internationally-recognised equivalent, and

(b)they provide that tenders satisfying equivalent standards from other
states or regions will, for the purposes of this Part, be treated as having
satisfied the United Kingdom standards.

(3)Unless the contracting authority considers it necessary in order to make its
40requirements understood, the terms of a procurement may not refer to a
particular—

(a)trademark, trade name, patent, design or type,

(b)place of origin, or

(c)producer or supplier.

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(4)If such matters are referred to, the terms of the procurement must also provide
that tenders demonstrating equivalent quality or performance will not be
disadvantaged.

(5)In this section—

  • 5“terms of a procurement” means anything set out in the tender notice or
    associated tender documents, including any competitive tendering
    procedure, conditions of participation or award criteria;

  • “United Kingdom standards” means standards that—

    (a)

    are set by the British Standards Institute, or

    (b)

    10apply in the United Kingdom, or part of the United Kingdom,
    and do not apply elsewhere;

  • a reference to standards includes a reference to any regulation, rules, code
    of practice or guidance.

25 Sub-contracting specifications

(1)15Subsection (2) applies if a contracting authority considers that the authority
could award a contract for the supply of certain goods, services or works to a
particular supplier under section 40 (direct award in special cases).

(2)In awarding a contract that is wholly or partly for the supply of those goods,
services or works under section 18 (award following competitive procedure),
20the contracting authority may require that a supplier sub-contracts the supply
of those goods, services or works to the particular supplier.

Exclusions and modifications

26 Excluding suppliers from a competitive award

(1)In assessing which tender best satisfies the award criteria for the purposes of
25section 18, a contracting authority must disregard any tender from a supplier
that is an excluded supplier.

(2)Before assessing which tender best satisfies the award criteria for the purposes
of section 18, a contracting authority—

(a)must consider whether a supplier is an excludable supplier, and

(b)30may disregard any tender from an excludable supplier.

(3)If the supplier is an excluded or excludable supplier only by virtue of an
associated supplier being an excluded or excludable supplier, the contracting
authority must, before disregarding a tender, give the supplier reasonable
opportunity to replace the associated supplier.

(4)35In this Act, “associated supplier” means a supplier that the supplier is relying
on in order to in order to satisfy the conditions of participation.

27 Excluding suppliers from a competitive tendering procedure

(1)Before permitting a supplier to participate in a competitive tendering
procedure other than an open procedure, a contracting authority must
40determine whether the supplier is—

(a)an excluded supplier, or

(b)an excludable supplier.

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(2)The contracting authority must exclude an excluded supplier from
participating in, or progressing as part of, the competitive tendering
procedure.

(3)The contracting authority may exclude an excludable supplier from
5participating in, or progressing as part of, the competitive tendering
procedure.

(4)Before excluding a supplier that is an excluded supplier or excludable supplier
only by virtue of an associated supplier, a contracting authority must provide
the supplier with reasonable opportunity to replace the associated supplier.

(5)10In this section, a reference to a supplier participating in a competitive tendering
procedure is a reference to a supplier participating beyond the initial
submission of tenders or requests to participate.

28 Excluding suppliers by reference to sub-contractors

(1)A contracting authority may, as part of a competitive tendering procedure,
15request information—

(a)about whether a supplier intends to sub-contract the performance of all
or part of a public contract, and

(b)for the purpose of determining whether any intended sub-contractor is
an excluded or excludable supplier.

(2)20If, after requesting information under subsection (1), a contracting authority
considers that a supplier intends to sub-contract to a supplier that is an
excluded supplier, the contracting authority must—

(a)treat the supplier as an excluded supplier for the purpose of assessing
tenders under section 18, and

(b)25exclude the supplier from participating in, or progressing as part of, the
competitive tendering procedure.

(3)If, after requesting information under subsection (1), a contracting authority
considers that a supplier intends to sub-contract to a supplier that is an
excludable supplier, the contracting authority—

(a)30must treat the supplier as an excludable supplier for the purpose of
assessing tenders under section 18, and

(b)may exclude the supplier from participating in, or progressing as part
of, the competitive tendering procedure.

(4)Before disregarding a tender or excluding a supplier under subsection (2) or
35(3), a contracting authority must give the supplier reasonable opportunity to
find an alternative supplier with which to sub-contract.

(5)In this section, a reference to a supplier participating in a competitive tendering
procedure is a reference to a supplier participating beyond the initial
submission of tenders or requests to participate.

(6)40Subsections (2) and (3) do not apply if the intended sub-contractor is an
associated supplier.

29 Excluding a supplier that is a threat to national security

(1)This section applies if a contracting authority other than a Minister of the
Crown intends to disregard a tender under section 26 or 28 or exclude a



Procurement Bill [HL]Page 19



supplier under section 27 or 28 on the basis of the discretionary exclusion
ground in paragraph 15 of Schedule 7 (threat to national security).

(2)The contracting authority may not disregard the tender or exclude the supplier
unless—

(a)5the authority has notified a Minister of the Crown of its intention, and

(b)the Minister of the Crown considers that—

(i)the supplier or an intended sub-contractor is an excluded
supplier by virtue of paragraph 15 of Schedule 7, and

(ii)the tender should be disregarded or supplier excluded.

30 10Excluding suppliers for improper behaviour

(1)Subsection (2) applies if a contracting authority determines that—

(a)a supplier has acted improperly in relation to a procurement,

(b)in consequence, the supplier is put at an unfair advantage in relation to
the award of a public contract, and

(c)15the unfair advantage cannot be avoided other than by excluding the
supplier.

(2)The contracting authority must treat the supplier as an excluded supplier in
relation to the award of the public contract.

(3)Before making a determination of the kind described in subsection (1), a
20contracting authority must give the supplier reasonable opportunity to—

(a)make representations, and

(b)provide relevant evidence.

(4)A supplier might act improperly in relation to a procurement by—

(a)failing to provide information requested by the contracting authority;

(b)25providing information that is incomplete, inaccurate or misleading;

(c)accessing confidential information;

(d)unduly influencing the contracting authority’s decision-making.

(5)Subsection (6) applies if—

(a)a contracting authority has, in relation to the award of a public contract,
30requested—

(i)information about a supplier’s connected persons or associated
suppliers for the purpose of determining whether the supplier
is an excluded or excludable supplier, or

(ii)other information under section 28(1) (excluding suppliers by
35reference to sub-contractors), and

(b)the supplier has—

(i)failed to provide the information requested, or

(ii)provided information that is incomplete, inaccurate or
misleading.

(6)40The contracting authority must treat the supplier as an excluded supplier in
relation to the award of the public contract.

31 Modifying a section 18 procurement

(1)A contracting authority may modify the terms of a procurement before the
following deadlines have passed—