Procurement Bill [HL] (HL Bill 4)

Procurement Bill [HL]Page 20

(a)in the case of an open procedure, the deadline for submitting tenders;

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

(i)the deadline for submitting a request to participate in the
5procedure, or

(ii)where there has been no invitation to submit such requests, the
deadline for submitting a first or only tender.

(2)In the case of a competitive procedure other than an open procedure, a
contracting authority may also modify the terms of a procurement before the
10deadline for submitting a tender for assessment under section 18 (award
following competitive procedure) has passed if—

(a)the modification is not substantial, or

(b)the procurement relates to the award of a light touch contract.

(3)A modification is “substantial” if—

(a)15it would permit suppliers that are not participating suppliers to submit
a tender, or

(b)the contracting authority considers that, had the modification been
reflected in the tender notice or associated tender documents before a
deadline referred to in subsection (1)(b) passed—

(i)20one or more participating suppliers would not be a
participating supplier, or

(ii)one or more suppliers that are not participating suppliers
would be a participating supplier.

(4)Whenever a contracting authority modifies the terms of a procurement, the
25authority must consider revising applicable tender deadlines and other time
limits in accordance with section 52 (time limits).

(5)If a contracting authority modifies the terms of a procurement under
subsection (1), the authority must revise and republish or provide again the
tender notice and any associated tender documents affected by the
30modifications or time limit revisions.

(6)If a contracting authority modifies the terms of a procurement under
subsection (2), the authority must notify each participating supplier.

(7)In this section—

  • “terms of a procurement” means anything set out in a tender notice or
    35associated tender documents, including any competitive tendering
    procedure, conditions of participation or award criteria;

  • “participating supplier” means a supplier that—

    (a)

    has submitted a request to participate in, or a tender as part of,
    the competitive tendering procedure, and

    (b)

    40has not been excluded in accordance with the procedure or
    under this Act.

(8)See section 42 for provision about switching to direct award.

Procurement Bill [HL]Page 21

Reserving contracts to certain suppliers

32 Reserving contracts to supported employment providers

(1)A competitive tendering procedure other than an open procedure may provide
for the exclusion of suppliers that are not supported employment providers.

(2)5Subsection (3) applies in relation to the award of a public contract under
section 18 if the competitive procedure provides for the exclusion of suppliers
as set out in subsection (1).

(3)In assessing which tender best satisfies the award criteria for the purposes of
section 18, a contracting authority must disregard any tender from a supplier
10that is not a supported employment provider.

(4)A “supported employment provider” means an organisation—

(a)that operates for the purpose of providing employment, or
employment-related support, to disabled or disadvantaged
individuals, and

(b)15in which disabled or disadvantaged individuals represent at least 30
per cent of the workforce.

33 Reserving contracts to public service mutuals

(1)This section applies in relation to the award of a public contract under section
18 if the contract—

(a)20is for reservable light touch services, and

(b)has a maximum term of five years or less.

(2)A competitive tendering procedure other than an open procedure may provide
for the exclusion of suppliers that are not qualifying public service mutuals.

(3)Subsection (4) applies in relation to the award of a public contract under
25section 18 if the competitive procedure provides for the exclusion of suppliers
as set out in subsection (2).

(4)In assessing which tender best satisfies the award criteria for the purposes of
section 18, a contracting authority must disregard any tender from a supplier
that is not a qualifying public service mutual.

(5)30A “qualifying public service mutual” means a public service mutual that has
not been awarded a comparable contract during the period of three years
ending with the day on which the contract referred to in subsection (1) is
awarded.

(6)A “public service mutual” means a body that—

(a)35operates for the purpose of delivering public services and mainly for
the purpose of delivering one or more reservable light touch services,

(b)is run on a not-for-profit basis or provides for the distribution of profits
only to members, and

(c)is under the management and control of its employees.

(7)40In this section—

  • “comparable contract” means a contract that was—

    (a)

    a contract for the same kind of services,

    (b)

    awarded by the same contracting authority, and

    Procurement Bill [HL]Page 22

    (c)

    awarded in reliance on this section;

  • “reservable light touch services” means services of a kind specified in
    regulations under subsection (8).

(8)An appropriate authority may by regulations specify services of a kind
5specified in regulations of the authority under section 8 (light touch contracts).

Awarding contracts by reference to dynamic markets

34 Competitive award by reference to dynamic markets

(1)A competitive tendering procedure other than an open procedure may provide
for the exclusion of suppliers that are not members of—

(a)10a particular dynamic market, or

(b)a particular part of a particular dynamic market.

(2)Subsection (3) applies in relation to the award of a public contract under
section 18 if the competitive procedure provides for the exclusion of suppliers
as set out in subsection (1).

(3)15In assessing which tender best satisfies the award criteria for the purposes of
section 18, a contracting authority must disregard any tender from a supplier
that is not a member of—

(a)a particular dynamic market, or

(b)a particular part of a particular dynamic market.

(4)20A contracting authority must, before excluding suppliers or disregarding
tenders under this section, consider any applications for membership of the
market or part of the market from suppliers that have submitted a tender as
part of the competitive tendering procedure.

(5)Subsection (4) does not apply in relation to an application for membership if,
25due to exceptional circumstances arising from the complexity of the particular
procurement, a contracting authority is unable to consider the application
before—

(a)the deadline for submitting a request to participate in the procedure, or

(b)where there has been no invitation to submit such requests, the
30deadline for submitting a first or only tender.

35 Dynamic markets: establishment

(1)A contracting authority may establish arrangements (a “dynamic market”) for
the purpose of awarding public contracts by reference to suppliers’
membership of the market.

(2)35A contracting authority that is a utility may also establish a dynamic market for
the purpose of awarding only public contracts that are utilities contracts by
reference to suppliers’ membership of the market (a “utilities dynamic
market”).

(3)A contracting authority that is a centralised procurement authority may also
40establish—

(a)a dynamic market for the purpose of other contracting authorities
awarding public contracts by reference to suppliers’ membership of the
market;

Procurement Bill [HL]Page 23

(b)a utilities dynamic market for the purpose of utilities awarding only
public contracts that are utilities contracts by reference to suppliers’
membership of the market.

(4)If arrangements established by any person comply with the requirements of
5this Act in relation to a utilities dynamic market established by a private
utility—

(a)the arrangements are to be treated for the purposes of this Act as a
utilities dynamic market established by a private utility, and

(b)a utility may award public contracts that are utilities contracts by
10reference to suppliers’ membership of the market.

(5)In this Act, references to a contract being awarded by reference to suppliers’
membership of a dynamic market are references to a contract being awarded
in reliance on section 34 (competitive award by reference to dynamic markets).

(6)In this section, “utility” means—

(a)15a public authority, or public undertaking, that carries out a utility
activity;

(b)a private utility.

(7)Documents establishing or modifying a dynamic market are not a public
contract for the purposes of this Act.

(8)20Subsections (1) and (3)(a) do not apply in relation to public contracts that are
concession contracts (but subsections (2) and (3)(b) do apply in relation to
utilities contracts that are concession contracts).

36 Dynamic markets: membership

(1)A contracting authority may set conditions for membership of a dynamic
25market or part of a dynamic market only if it is satisfied that the conditions are
a proportionate means of ensuring that members—

(a)have the legal and financial capacity to perform contracts awarded by
reference to membership of the market or the part of the market;

(b)the technical ability to perform such contracts.

(2)30A contracting authority must—

(a)accept applications for membership of a dynamic market or part of a
dynamic market at any time during the term of the market;

(b)consider such applications within a reasonable period;

(c)admit to the market or the part of the market, as soon as reasonably
35practicable, any supplier that—

(i)is not an excluded or excludable supplier, and

(ii)satisfies the conditions for membership;

(d)consider whether to admit to the market or the part of the market any
supplier that—

(i)40is an excludable supplier, and

(ii)satisfies the conditions for membership;

(e)inform a supplier of the outcome of their application, together with
reasons for the decision, as soon as reasonably practicable.

(3)A contracting authority may not—

(a)45limit the number of suppliers that can be admitted to a dynamic market
or part of a market, or

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(b)modify the conditions for membership of a dynamic market or part of
a market during the term of the market.

37 Dynamic markets: removing members from the market

(1)A contracting authority must remove a supplier from a dynamic market if the
5authority considers that the supplier is an excluded supplier under section
54(1)(b) (debarment by reference to mandatory exclusion ground).

(2)A contracting authority may remove a supplier from a dynamic market if—

(a)the authority considers that the supplier—

(i)is an excluded supplier under section 54(1)(a),

(ii)10does not satisfy the conditions for membership, or

(iii)has, since becoming a member, become an excludable supplier,
or

(b)the authority discovers that, on becoming a member, the supplier was
an excludable supplier.

(3)15The reference to a supplier becoming an excludable supplier includes a
reference to a supplier becoming an excludable supplier by virtue of a
discretionary exclusion ground that—

(a)did not apply before the supplier became a member, or

(b)applied before the supplier became a member by reference to different
20circumstances.

(4)Before removing a supplier from a dynamic market, a contracting authority
must inform the supplier of its decision to do so, together with reasons for the
decision.

38 Dynamic markets: fees

(1)25Documents establishing a dynamic market other than a utilities dynamic
market may provide for the charging of fees to suppliers that are awarded a
contract by reference to their membership of the market.

(2)Fees charged by virtue of subsection (1) must be set as a fixed percentage to be
applied to the estimated value of the awarded contract.

(3)30Documents establishing a utilities dynamic market may provide for the
charging of fees to suppliers in connection with obtaining and maintaining
membership of the market.

39 Dynamic market notices

(1)A notice under this section is called a “dynamic market notice”.

(2)35Before establishing a dynamic market, a contracting authority must publish a
notice setting out—

(a)that the authority intends to establish a dynamic market, and

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

(3)As soon as reasonably practicable after establishing a dynamic market, the
40contracting authority must publish a notice setting out—

(a)that the dynamic market has been established, and

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

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(4)As soon as reasonably practicable after modifying a dynamic market, the
contracting authority must publish a notice setting out—

(a)the modifications made to the market, and

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

(5)5As soon as reasonably practicable after a dynamic market ceases to operate, the
contracting authority must publish a notice setting out—

(a)that the dynamic market has ceased to operate, and

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

(6)Subsection (5) does not apply to private utilities.

10Chapter 3 Direct award

40 Direct award in special cases

(1)If a direct award justification applies, a contracting authority may award a
public contract directly—

(a)15to a supplier that is not an excluded supplier, or

(b)in accordance with subsection (2).

(2)A contracting authority may award a contract to a supplier that is an excluded
supplier if the contracting authority considers that there is an overriding public
interest in awarding the contract to that supplier.

(3)20A contracting authority may carry out a selection process or take such other
preliminary steps as it considers appropriate for the purpose of awarding a
contract under this section.

(4)Before awarding a contract to a supplier under this section, a contracting
authority must consider whether the supplier is an excludable supplier.

(5)25There is an overriding public interest in awarding a public contract to an
excluded supplier if—

(a)it is necessary in order to construct, maintain or operate critical national
infrastructure,

(b)it is necessary in order to ensure the proper functioning of a sector on
30which the defence, security or economic stability of the United
Kingdom relies,

(c)failure to do so would prejudice the conduct of military or security
operations, or the effective operation of the armed forces or intelligence
services, or

(d)35the contract is being awarded by reference to paragraph 13 of Schedule
5 (extreme and unavoidable urgency) and cannot be awarded to, or
performed by, a supplier that is not an excluded supplier within the
necessary time frame.

(6)The direct award justifications are set out in Schedule 5.

(7)40In this section, “intelligence services” means the Security Service, the Secret
Intelligence Service and the Government Communications Headquarters.

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41 Direct award to protect life, etc

(1)If a Minister of the Crown considers it necessary, the Minister may by
regulations provide that specified public contracts may be awarded under
section 40 as if a direct award justification applies.

(2)5In subsection (1), “necessary” means necessary to—

(a)protect human, animal or plant life or health, or

(b)protect public order or safety.

(3)Provision under subsection (1) may—

(a)specify contracts or classes of contract, or otherwise describe contracts
10by reference to purpose, subject-matter or contracting authority;

(b)include other conditions or limitations;

(c)confer a discretion.

(4)A Minister of the Crown must—

(a)keep regulations made under subsection (1) under review, and

(b)15if the Minister considers that direct award under section 40 is no longer
necessary, revoke the regulations.

42 Switching to direct award

(1)A contracting authority may award a public contract directly to a supplier that
is not an excluded supplier if—

(a)20the authority has invited suppliers to submit tenders as part of, or
requests to participate in, a competitive tendering procedure in respect
of the contract,

(b)it has not received any suitable tenders or requests in response, and

(c)it considers that award under section 18 is not possible in the
25circumstances.

(2)A tender or request is not suitable if the contracting authority considers that—

(a)it would be disregarded in an assessment of tenders under section 18;

(b)it does not satisfy the award criteria when assessed by reference to the
assessment methodology and the relative importance of the criteria
30indicated under section 22(3);

(c)the price is abnormally low;

(d)there is evidence of corruption or collusion between suppliers or
between suppliers and contracting authorities;

(e)it materially breaches a procedural requirement in the tender notice.

(3)35A reference to a tender breaching a procedural requirement includes a
reference to a supplier breaching a procedural requirement in relation to the
tender.

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

(5)40A contracting authority may carry out a selection process or take such other
preliminary steps as it considers appropriate for the purpose of awarding a
contract under subsection (1).

(6)Before awarding a contract to a supplier under this section, a contracting
authority must consider whether the supplier is an excludable supplier.

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43 Transparency notices

(1)Before awarding a contract under section 40 or 42 a contracting authority must
publish a transparency notice.

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

(a)5that a contracting authority intends to award a contract directly, and

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

(3)This section does not apply in relation to the award of a contract under section
40 by virtue of paragraph 16 of Schedule 5 (direct award: user choice contracts).

Chapter 4 10Award under frameworks

44 Frameworks

(1)A contracting authority may award a public contract in accordance with a
framework.

(2)A “framework” is a contract between a contracting authority and one or more
15suppliers that provides for the future award of contracts by a contracting
authority to the supplier or suppliers.

(3)Unless subsection (4) applies, a framework may only provide for the future
award of a public contract following a competitive selection process.

(4)A framework may provide for the future award of a public contract without
20competition between suppliers—

(a)in circumstances where only one supplier is party to the framework, or

(b)if the framework sets out—

(i)the core terms of the public contract, and

(ii)an objective mechanism for supplier selection.

(5)25A framework must include the following information—

(a)a description of goods, services or works to be provided under
contracts awarded in accordance with the framework;

(b)the price payable, or mechanism for determining the price payable,
under such contracts;

(c)30the estimated value of the framework;

(d)any selection process to be applied on the award of contracts;

(e)the term of the framework (see section 45);

(f)the contracting authorities entitled to award public contracts in
accordance with the framework;

(g)35whether the framework is awarded under an open framework (see
section 47).

(6)A framework may not—

(a)permit the award of a public contract to an excluded supplier, or

(b)prevent a contracting authority from requesting additional information
40from suppliers before awarding a contract.

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(7)A framework may provide for the charging of fees at a fixed percentage of the
estimated value of any contract awarded to the supplier in accordance with the
framework.

(8)This section does not apply in relation to the award of—

(a)5a concession contract, or

(b)a framework under an open framework (see section 47).

45 Frameworks: maximum term

(1)The term of a framework may not exceed—

(a)in the case of a defence and security framework or a utilities
10framework, eight years, and

(b)otherwise, four years.

(2)Subsection (1) does not apply if the contracting authority considers the nature
of the goods, services or works to be supplied under contracts awarded in
accordance with the framework means that a longer term is required.

(3)15If a contracting authority relies on subsection (2) in awarding a framework
with a term exceeding four or eight years, the contracting authority must set
out its reasons in the tender or transparency notice for the framework.

(4)In this section—

(a)“a defence and security framework” is a framework which does not
20provide for the future award of public contracts other than defence and
security contracts;

(b)“a utilities framework” is a framework which does not provide for the
future award of public contracts other than utilities contracts.

(5)This section does not apply in relation to a framework awarded—

(a)25under an open framework (see section 47), or

(b)by a private utility.

46 Frameworks: implied terms

(1)It is an implied term of every framework that a contracting authority may
exclude a supplier that is an excluded supplier or has, since the award of the
30framework, become an excludable supplier from participating in any selection
process run in relation to the award of a contract under the framework.

(2)For the purposes of the term in subsection (1), the reference to a supplier
becoming an excludable supplier includes a reference to—

(a)a supplier becoming an excludable supplier on the basis of a
35discretionary exclusion ground that—

(i)did not apply before award of the contract, or

(ii)applied before award of the contract by reference to different
circumstances, and

a contracting authority discovering that, before award of the contract,
40the supplier was an excludable supplier.

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

Procurement Bill [HL]Page 29

(4)Any term purporting to restrict or override the term implied by subsection (1)
is without effect.

47 Open frameworks

(1)An “open framework” is a scheme of frameworks that provides for the award
5of successive frameworks on substantially the same terms.

(2)An open framework must provide—

(a)for the award of a framework at least once during—

(i)the period of three years beginning with the day of the award of
the first framework in the scheme, and

(ii)10each period of five years beginning with the day of the award of
the second framework in the scheme;

(b)for the expiry of one framework on the award of the next;

(c)for the final framework to expire at the end of the period of eight years
beginning with the day on which the first framework under the scheme
15is awarded.

(3)If there is no limit on the number of suppliers that can be party to a framework
under an open framework, a contracting authority may award the framework
to an existing supplier by reference to—

(a)the fact that the supplier has already been awarded a framework under
20the scheme,

(b)a tender relating to an earlier award under the scheme, or

(c)a tender relating to the current award.

(4)Otherwise, a contracting authority may award a framework under an open
framework to an existing supplier by reference to—

(a)25a tender relating to earlier award under the scheme, or

(b)a tender relating to the current award.

(5)If a framework under an open framework is awarded to only one supplier, the
framework, and the open framework, must expire before the end of the period
of four years beginning with the day on which the framework is awarded.

(6)30Subsection (5) applies despite subsection (2)(c) and any term of the framework
or open framework.

(7)In this section, an “existing supplier” means a supplier that is party to a
framework under the open framework.

(8)A reference to an award on substantially the same terms is a reference to an
35award that could be made by reference to the same tender or transparency
notice without substantial modification (see section 31).

(9)A framework under an open framework may not be awarded under section 40
(direct award in special cases) or 42 (switching to direct award).