Procurement Bill [HL] (HL Bill 4)

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Chapter 5 After award, standstill periods and notices

48 Contract award notices and assessment summaries

(1)Before entering into a public contract, a contracting authority must publish a
5contract award notice.

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

(a)that the contracting authority intends to enter into a contract, and

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

(3)Before publishing a contract award notice in respect of a contract awarded
10under section 18 (award following competitive procedure), a contracting
authority must provide an assessment summary to each supplier that
submitted an assessed tender.

(4)An “assessment summary” means, in relation to an assessed tender,
information about the contracting authority’s assessment of—

(a)15the tender, and

(b)if different, the most advantageous tender submitted in respect of the
contract.

(5)In this section, an “assessed tender” is a tender which—

(a)was submitted in respect of the contract and assessed for the purposes
20of determining the most advantageous tender under subsection (1) of
section 18, and

(b)was not disregarded in the assessment of tenders.

(6)Subsection (1) does not apply in relation to—

(a)a defence and security contract awarded under a defence and security
25framework (see section 44 (frameworks));

(b)a contract awarded under section 40 by virtue of paragraph 16 of
Schedule 5 (direct award: user choice contracts).

49 Standstill periods on the award of contracts

(1)A contracting authority may not enter into a public contract before—

(a)30the end of the mandatory standstill period, or

(b)if later, the end of another standstill period provided for in the award
notice.

(2)The “mandatory standstill period” is the period of eight working days
beginning with the day on which a contract award notice is published in
35respect of the contract.

(3)Subsection (1) does not apply in relation to a contract that is—

(a)awarded under section 40 by reference to paragraph 13 of Schedule 5
(direct award: extreme and unavoidable urgency);

(b)awarded under section 40 by reference to regulations under section 41
40(direct award to protect life, etc);

(c)awarded in accordance with a framework;

(d)awarded by reference to a dynamic market;

(e)a light touch contract.

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(4)If a contract is of a kind described in subsection (3), a contracting authority may
not enter into the contract before the end of any standstill period provided for
in the award notice.

50 Key performance indicators

(1)5Before entering into a public contract with an estimated value of more than £2
million, a contracting authority must set and publish at least three key
performance indicators in respect of the contract.

(2)Subsection (1) does not apply if the contracting authority considers that the
supplier’s performance under the contract could not appropriately be assessed
10by reference to key performance indicators.

(3)A “key performance indicator” is a factor or measure against which a
supplier’s performance of a contract can be assessed during the life-cycle of the
contract.

(4)An appropriate authority may by regulations amend this section for the
15purpose of changing the financial threshold.

(5)This section does not apply in relation to a public contract that is—

(a)a framework,

(b)a utilities contract awarded by a private utility,

(c)a concession contract, or

(d)20a light touch contract.

(6)See section 66 for provision about assessing performance against, and
publishing information about, key performance indicators.

51 Contract details notices and publication of contracts

(1)A contracting authority that enters into a public contract awarded under this
25Part must publish a contract details notice—

(a)if the contract is a light touch contract, before the end of the period of
120 days beginning with the day on which the contract is entered into;

(b)otherwise, before the end of the period of 30 days beginning with the
day on which the contract is entered into.

(2)30A “contract details notice” means a notice setting out—

(a)that the contracting authority has entered into a contract, and

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

(3)Before the end of the period of 90 days beginning with the day on which a
contracting authority enters into a public contract with an estimated value of
35more than £2 million, the authority must publish a copy of the contract.

(4)Subsection (3) does not apply in relation to a contract—

(a)awarded by a devolved Welsh authority, unless it is awarded under a
reserved procurement arrangement or a transferred Northern Ireland
procurement arrangement, or

(b)40awarded under a devolved Welsh procurement arrangement.

(5)A Minister of the Crown or a Northern Ireland department may by regulations
amend this section for the purpose of changing the financial threshold in
subsection (3).

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(6)This section does not apply—

(a)to private utilities, or

(b)in relation to a contract awarded under section 40 by virtue of
paragraph 16 of Schedule 5 (direct award: user choice contracts).

5Chapter 6 General provision about award and procedures

Time limits and termination

52 Time limits

(1)In setting time limits for the purposes of this Part, a contracting authority must,
10where relevant, have regard to—

(a)the nature and complexity of the contract being awarded;

(b)the need for site visits, physical inspections and other practical steps;

(c)the need for sub-contracting;

(d)the nature and complexity of any modification of the tender notice or
15any associated tender documents;

(e)the importance of avoiding unnecessary delay.

(2)Time limits set for the purposes of this Part must be the same for each supplier.

(3)A participation period set under this Part must equal or exceed the shortest
minimum period specified in an entry in the second column of the following
20table that corresponds with an entry in the first column which applies to the
circumstances of the case—

CircumstanceMinimum period
The contract being awarded is a light touch
contract
No minimum period
25The contracting authority considers there to be a
state of urgency that means that a 25 day
participation period is impractical
10 days
Neither of the above circumstances apply 25 days

(4)A tendering period set under this Part must equal or exceed the shortest
30minimum period specified in an entry in the second column of the following
table that corresponds with an entry in the first column that applies to the
circumstances of the case—

CircumstanceMinimum period
The contract being awarded is a light touch
35contract
No minimum period

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CircumstanceMinimum period
A qualifying planned procurement notice has
been issued
10 days
The contracting authority considers there to be a
5state of urgency that means any other applicable
minimum tender period is impractical
10 days
Tenders may be submitted electronically, and
the tender notice and associated tender
documents are all provided at the same time
25 days
10Tenders may be submitted electronically, but the
tender notice and associated tender documents
are not all provided at the same time
30 days
Tenders may not be submitted electronically, but
the tender notice and associated tender
15documents are all provided at the same time
30 days
Tenders may not be submitted electronically,
and the tender notice and associated tender
documents are not all provided at the same time
35 days

(5)In this section—

  • 20“qualifying planned procurement notice” has the meaning given in
    section 14;

  • “participation period” means the period beginning with the day following
    the day on which a contracting authority invites the submission of
    requests to participate in a competitive tendering procedure other than
    25an open procedure and ending with the day by which those requests
    must be submitted;

  • “tendering period” means the period beginning with the day following
    the day on which a contracting authority invites the submission of
    tenders as part of a competitive tendering procedure and ending with
    30the day by which tenders must be submitted.

53 Procurement termination notices

(1)This section applies if, after publishing a tender or transparency notice in
respect of a public contract, a contracting authority decides not to award the
contract.

(2)35As soon as reasonably practicable after making the decision, the contracting
authority must give notice to that effect.

(3)This section does not apply to private utilities.

Excluding suppliers

54 Meaning of excluded and excludable supplier

(1)40A supplier is an “excluded supplier” if—

(a)the contracting authority considers that—

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(i)a mandatory exclusion ground applies to the supplier or an
associated supplier, and

(ii)the circumstances giving rise to the application of the exclusion
ground are likely to occur again, or

(b)5the supplier or an associated supplier is on the debarment list by virtue
of a mandatory exclusion ground.

(2)A supplier is an “excludable supplier” if—

(a)the contracting authority considers that—

(i)a discretionary exclusion ground applies to the supplier or an
10associated supplier, and

(ii)the circumstances giving rise to the application of the exclusion
ground are likely to occur again, or

(b)the supplier or an associated supplier is on the debarment list by virtue
of a discretionary exclusion ground.

(3)15For the purposes of a procurement carried out by a private utility—

(a)an excluded supplier is to be regarded as an excludable supplier, and

(b)a reference in this Act to an excludable supplier includes a reference to
such an excluded supplier.

(4)In this section “debarment list” means the list kept under section 59.

(5)20The mandatory exclusion grounds are set out in Schedule 6.

(6)The discretionary exclusion grounds are set out in Schedule 7.

55 Considering whether a supplier is excluded or excludable

(1)In considering, for the purposes of section 54(1)(a) or (2)(a), whether the
circumstances giving rise to the application of an exclusion ground are likely
25to occur again, a contracting authority may have regard to the following
matters—

(a)evidence that the supplier, associated supplier or connected person has
taken the circumstances seriously, for example by paying
compensation;

(b)30steps that the supplier, associated supplier or connected person has
taken to prevent the circumstances occurring again, for example by
changing staff or management, or putting procedures and training in
place;

(c)commitments that such steps will be taken, or to provide information
35or access to allow verification or monitoring of such steps;

(d)the time that has elapsed since the circumstances last occurred;

(e)any other evidence, explanation or factor that the authority considers
appropriate.

(2)Before determining whether a supplier is an excluded supplier under section
4054(1)(a) or an excludable supplier under section 54(2)(a), a contracting
authority must give the supplier reasonable opportunity to—

(a)make representations, and

(b)provide evidence as to whether exclusion grounds apply and whether
the circumstances giving rise to any application are likely to occur
45again (including information of a kind referred to in subsection (1)).

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(3)But a contracting authority may not require particular evidence or information
unless the authority is satisfied that the requirements are proportionate in the
circumstances, having regard to—

(a)the nature and complexity of the matters being assessed,

(b)5the financial and other resources of suppliers, and

(c)where relevant, the preliminary nature of a consideration under section
27(3).

Debarment

56 Notification of exclusion of supplier

(1)10This section applies where—

(a)a contracting authority—

(i)has disregarded a tender from an excluded or excludable
supplier under section 26 or 28,

(ii)has excluded an excluded or excludable supplier from
15participating in, or progressing as part of a procurement
procedure under section 27 or 28, or

(iii)is aware of an associated supplier or sub-contractor supplier
having been replaced under section 26(3), 27(4) or 28(4)
(replacing an excluded or excludable associated supplier or
20sub-contractor), and

(b)the supplier was an excluded or excludable supplier on the basis of a
relevant exclusion ground.

(2)The contracting authority must, before the end of the period of 30 days
beginning with the day on which the tender was disregarded or the supplier
25excluded or replaced, give notice of that exclusion to the relevant appropriate
authority.

(3)A notice under subsection (2) must set out—

(a)any relevant exclusion ground that the authority considers applies to
the supplier, and

(b)30any other information specified in regulations under section 86.

(4)If any proceedings under Part 9 are brought in respect of the disregard or
exclusion, the contracting authority must give notice to the relevant
appropriate authority of—

(a)the commencement of those proceedings or any appeal proceedings;

(b)35the outcome of any proceedings within paragraph (a).

(5)Notice under subsection (4)(a) or (b) must be given before the end of the period
of 30 days beginning with the day the proceedings concerned are commenced
or determined.

(6)In this section—

  • 40“exclusion ground” means a mandatory exclusion ground or a
    discretionary exclusion ground;

  • “relevant exclusion ground” means any exclusion ground except the one
    listed in paragraph 41 of Schedule 6 (failure to cooperate with
    investigation);

  • 45“relevant appropriate authority” means—

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  • (a)

    if the contracting authority is a devolved Welsh authority, the
    Welsh Ministers;

    (b)

    in any other case, a Minister of the Crown.

57 Investigations of supplier: exclusion grounds

(1)5An appropriate authority may investigate whether a supplier is, by virtue of
the application to the supplier of a relevant exclusion ground—

(a)an excluded supplier under section 54(1)(a), or

(b)an excludable supplier under section 54(2)(a).

(2)An investigation under this section may be conducted at any time, including
10by a Minister of the Crown following an application under section 60
(application for removal from debarment list).

(3)If an appropriate authority decides to investigate under this section, the
authority must give the supplier concerned a notice setting out—

(a)the relevant exclusion grounds in respect of which the investigation is
15being conducted,

(b)how and when the supplier may make representations to the
appropriate authority, and

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

(4)The appropriate authority may by notice require a contracting authority—

(a)20to provide such relevant documents as the appropriate authority may
reasonably require for the purposes of the investigation, in the form or
manner specified in the notice;

(b)to give such other assistance in connection with the investigation as is
reasonable in the circumstances and is specified in the notice.

(5)25A contracting authority must comply with a notice under subsection (4) before
the end of the period specified in the notice.

(6)The appropriate authority may by notice request the supplier concerned, or a
connected person in relation to the supplier—

(a)to provide such relevant documents as the appropriate authority may
30reasonably require for the purposes of the investigation, in the form or
manner, and before the end of the period, specified in the notice;

(b)to give such other assistance in connection with the investigation as is
reasonable in the circumstances and is specified in the notice, before the
end of the period so specified.

(7)35A notice under subsection (6) must set out the potential consequences for the
supplier of non-compliance with the request (see paragraph 41 of Schedule 6).

(8)In this section—

  • “relevant documents” means documents or other information that—

    (a)

    are specified or described in a notice under subsection (4) or (6),
    40and

    (b)

    are in the possession or control of the recipient of the notice;

  • “relevant exclusion ground” has the meaning given in section 56.

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58 Investigations under section 57: reports

(1)This section applies where an appropriate authority has conducted an
investigation under section 57.

(2)The Welsh Ministers or a Northern Ireland department—

(a)5may refer the case to a Minister of the Crown for the Minister’s
consideration for the purposes of section 59(1), and

(b)if they do so, must provide the Minister with all information relevant to
their findings.

(3)A Minister of the Crown who has conducted, or considered the findings of, an
10investigation must—

(a)prepare a report in relation to the findings of the investigation,

(b)give a copy to the supplier concerned as soon as reasonably practicable
after the report is prepared, and

(c)publish it.

15Paragraphs (b) and (c) are subject to subsection (5).

(4)The report must, in particular, set out—

(a)whether the Minister is satisfied that the supplier is, by virtue of the
application of a relevant exclusion ground, an excluded or excludable
supplier and, if so, in respect of each applicable exclusion ground—

(i)20whether it is a mandatory exclusion ground or a discretionary
exclusion ground, and

(ii)the date on which the Minister expects the ground to cease to
apply;

(b)whether the Minister has entered, or decided to maintain the entry for,
25the supplier’s name on the debarment list (see section 59);

(c)in each case, the Minister’s reasons.

(5)If the Minister considers it necessary to do so for a purpose mentioned in
subsection (6), the Minister may—

(a)remove information from a report before publishing it or giving it to the
30supplier concerned;

(b)decide not to publish the report;

(c)decide not to give the report to the supplier;

(d)disclose the report only to such persons as the Minister considers
appropriate.

(6)35The purposes are—

(a)safeguarding national security;

(b)preventing the publication of information that is sensitive commercial
information where there is an overriding public interest in it being
withheld from publication or other disclosure.

(7)40In this section—

  • “relevant exclusion ground” has the meaning given by section 56;

  • “sensitive commercial information” has the meaning given by section 85.

59 Debarment list

(1)Subsection (3) applies where a Minister of the Crown—

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(a)has conducted an investigation under section 57 or considered the
findings of such an investigation conducted by the Welsh Ministers or
a Northern Ireland department, and

(b)is satisfied that the supplier is, by virtue of the application of a relevant
5exclusion ground, an excluded or excludable supplier.

(2)Subsection (3) also applies where a Minister of the Crown has made a
determination as mentioned in paragraph 41 of Schedule 6 in relation to a
supplier (mandatory exclusion ground for failing to cooperate with
investigation).

(3)10The Minister may enter the supplier’s name on a list kept by a Minister of the
Crown for the purposes of this section (the “debarment list”).

(4)An entry on the debarment list must—

(a)state which of the relevant exclusion grounds the Minister has decided
apply to the supplier, and

(b)15in respect of each ground indicate—

(i)whether it is a mandatory exclusion ground or a discretionary
exclusion ground, and

(ii)the date on which the Minister expects the ground to cease to
apply (and, accordingly, the entry for the supplier to be
20removed from the list).

(5)Before entering a supplier’s name on the debarment list, the Minister must give
notice to the supplier setting out—

(a)the decision to do so,

(b)an explanation of the supplier’s rights under section 61, and

(c)25any other information specified in regulations under section 86.

(6)A Minister of the Crown—

(a)must keep the debarment list under review, and

(b)may amend or remove an entry from the debarment list at any time.

(7)A Minister of the Crown must remove the entry for a supplier from the
30debarment list if the Minister is satisfied that the supplier is not an excluded or
excludable supplier.

(8)A Minister of the Crown must publish the debarment list (including any
amended list).

(9)A Minister of the Crown must consult the Welsh Ministers and a Northern
35Ireland department before—

(a)entering a supplier’s name on the debarment list, or

(b)removing an entry from the debarment list pursuant to an application
under section 60.

(10)In this section, “relevant exclusion ground” has the meaning given by section
4056.

60 Debarment list: application for removal

(1)A supplier may at any time apply to a Minister of the Crown for the removal
of their name from the debarment list kept under section 59.

(2)The Minister is only required to consider such an application if—

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(a)in the opinion of the Minister, there has been a material change of
circumstances—

(i)since the supplier’s name was entered on the debarment list, or

(ii)in a case where the supplier has made a previous application
5under subsection (1), since the most recent application that was
considered by the Minister was made, or

(b)the application is otherwise accompanied by significant information
that has not previously been considered by a Minister of the Crown.

61 Debarment decisions: appeals

(1)10A supplier may appeal against a decision of a Minister of the Crown—

(a)to enter their name on the debarment list kept under section 59;

(b)not to remove their name from the debarment list following the making
of an application under section 60.

(2)An appeal under subsection (1) must be brought and determined in accordance
15with regulations made by a Minister of the Crown.

Part 4 Management of public contracts

Terms implied into public contracts

62 Electronic invoicing: implied term

(1)20The term set out in subsection (2) is implied into every public contract entered
into by a contracting authority.

(2)The contracting authority must accept and process for payment any electronic
invoice issued to the authority for payment under the contract which is—

(a)in the required electronic form, and

(b)25not disputed by the authority.

(3)For the purposes of the term in subsection (2)

  • “electronic invoice” means an invoice which is issued, transmitted and
    received in a structured electronic format that allows for its automatic
    and electronic processing;

  • 30“required electronic form” means a form that—

    (a)

    complies with the standard for electronic invoicing approved
    and issued by the British Standards Institution in the document
    numbered BS EN 16931-1:2017 (Electronic invoicing - Part 1:
    Semantic data model of the core elements of an electronic
    35invoice), and

    (b)

    uses a syntax which is listed as a syntax that complies with that
    standard in the document numbered PD CEN/TS 16931-2:2017
    (Electronic invoicing - Part 2: List of syntaxes that comply with
    EN 16931-1) approved and issued by the British Standards
    40Institution.

A reference to a standard or document is a reference to the standard or
document as it stands—

(a)on the day that the contract is entered into, or