Procurement Bill [HL] (HL Bill 4)

Procurement Bill [HL]Page 60

95 Time limits on claims

(1)A supplier must commence any proceedings under this Part before the end of
the period of 30 days beginning with the day on which the supplier first knew,
or ought to have known, about the circumstances giving rise to the claim,
5unless subsection (4) applies.

(2)Subsection (4) applies where—

(a)the proceedings are brought to set aside a public contract under section
93(2), and

(b)the contracting authority did not publish a contract details notice in
10respect of the contract in accordance with section 51.

(3)Subsection (4) also applies where the proceedings are brought to set aside a
modification of a contract under section 93(2).

(4)The supplier must commence the proceedings before the earlier of the
following—

(a)15the end of the period mentioned in subsection (1);

(b)the end of the period of 6 months beginning with the day the contract
was entered into or modified.

(5)The court may make an order extending a time limit referred to in subsection
(1) or (4) if it considers there to be a good reason for doing so.

(6)20An order under subsection (5) may not permit proceedings to be commenced
after the end of the period of 3 months beginning with the day on which the
supplier first knew, or ought to have known, about the circumstances giving
rise to the claim.

Part 10 25Procurement oversight

96 Procurement investigations

(1)An appropriate authority may investigate a relevant contracting authority’s
compliance with requirements of this Act.

(2)An appropriate authority conducting a procurement investigation may by
30notice require a relevant contracting authority—

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

(b)to give such other assistance in connection with the procurement
35investigation as is reasonable in the circumstances and is specified in
the notice.

(3)The relevant contracting authority must comply with a notice under subsection
(2) before the end of—

(a)the period specified in the notice (which must be at least 30 days
40beginning with the day on which the notice is given), or

(b)such longer period as the appropriate authority may agree to.

(4)The appropriate authority may publish the results of a procurement
investigation, including any section 97 recommendation issued.

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(5)In this section—

  • “procurement investigation” means an investigation under subsection (1);

  • “relevant contracting authority” means a contracting authority other
    than—

    (a)

    5a Minister of the Crown or a government department;

    (b)

    the Welsh Ministers;

    (c)

    a Northern Ireland department;

    (d)

    a private utility;

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

    (a)

    10are specified or described in a notice under subsection (2), and

    (b)

    are in the possession or control of the relevant contracting
    authority to which the notice is given.

97 Recommendations following procurement investigations

(1)This section applies where an appropriate authority—

(a)15has conducted a procurement investigation under section 96, and

(b)considers, in light of the results of that procurement investigation
(whether alone or in conjunction with the results of other such
investigations), that a relevant contracting authority is engaging in
action giving rise, or that is likely to give rise, to a breach of any
20requirement of this Act.

(2)The appropriate authority may issue a recommendation (a “section 97
recommendation”) to the relevant contracting authority as to—

(a)the action the relevant contracting authority should take with a view to
ensuring that it complies with the requirements of this Act specified in
25the recommendation;

(b)the timing of such action.

(3)A section 97 recommendation must not relate to how the relevant contracting
authority should—

(a)comply with section 11 (procurement objectives),

(b)30have regard to the national procurement policy statement (see section
12) or the Wales procurement policy statement (see section 13);

(c)exercise a discretion in relation to a particular procurement.

(4)In considering how to comply with the requirements of this Act, a relevant
contracting authority must have regard to a section 97 recommendation issued
35to it.

(5)A relevant contracting authority to which a section 97 recommendation has
been issued must, where the recommendation so specifies, submit a progress
report to the appropriate authority at such intervals as may be specified.

(6)A “progress report” is a report setting out—

(a)40what action (if any) the relevant contracting authority has taken as a
result of the recommendation, or

(b)if the authority has taken no such action, a statement to that effect.

(7)Where the relevant contracting authority has taken no action as a result of the
section 97 recommendation, or has taken different action to that
45recommended, the progress report must also include the authority’s reasons
for doing so.

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(8)The appropriate authority may publish a progress report or, where the
relevant contracting authority fails to submit one, notice of that fact.

(9)In this section—

  • “action” includes acts and omissions;

  • 5“procurement investigation” and “relevant contracting authority” have
    the meanings given in section 96.

98 Guidance following procurement investigations

(1)Where an appropriate authority has conducted a procurement investigation
under section 96, the authority may publish guidance setting out what the
10authority considers to be the lessons of the matters considered in the
procurement investigation for compliance with the requirements of this Act by
contracting authorities generally.

(2)In considering how to comply with the requirements of this Act, a contracting
authority must have regard to guidance published under subsection (1).

15Part 11 Appropriate authorities and cross-border procurement

99 Welsh Ministers: restrictions on the exercise of powers

(1)The Welsh Ministers may only exercise a power under this Act for the purpose
of regulating—

(a)20contracting authorities that are devolved Welsh authorities (within the
meaning given in section 157A of the Government of Wales Act 2006),

(b)contracting authorities that—

(i)are not devolved Welsh authorities, but

(ii)for the purposes of this Act, are to be treated as devolved Welsh
25authorities, or

(c)the award of contracts under a devolved Welsh procurement
arrangement, or the management of such contracts (see section 102).

(2)A contracting authority that is a public undertaking or private utility is to be
treated as a devolved Welsh authority for the purposes of this Act if—

(a)30it operates only in relation to Wales, and

(b)its activities are wholly or mainly activities that do not relate to
reserved matters.

(3)Otherwise, a contracting authority is to be treated as a devolved Welsh
authority for the purposes of this Act if—

(a)35the authority’s functions are—

(i)exercisable wholly or mainly in relation to Wales, and

(ii)are wholly or mainly functions that do not relate to reserved
matters, and

(b)the authority is—

(i)40awarding a contract for the purpose of exercising a function
wholly in relation to Wales, or

(ii)managing a contract awarded for that purpose.

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(4)Other than in this section, a reference in this Act to a devolved Welsh authority
includes a reference to an authority that is to be treated as a devolved Welsh
authority for the purposes of this Act.

(5)In this section a reference to the award or management of a contract includes a
5reference to any steps taken for the purpose of, awarding or managing a
contract and a reference to terminating a procurement before award.

(6)In this section—

  • “reserved matters” has the meaning given in the Government of Wales
    Act 2006;

  • 10“Wales” has the meaning given in section 158 of the Government of Wales
    Act 2006 (when read by reference to section 157A(9) of that Act).

100 Northern Ireland department: restrictions on the exercise of powers

(1)A Northern Ireland department may only exercise a power under this Act for
the purpose of regulating—

(a)15contracting authorities that are transferred Northern Ireland
authorities,

(b)contracting authorities that are public undertakings or private utilities
that—

(i)are not transferred Northern Ireland authorities, but

(ii)20for the purposes of this Act, are to be treated as transferred
Northern Ireland authorities, or

(c)the award of contracts under a transferred Northern Ireland
procurement arrangement or the management of such contracts.

(2)For the purposes of this section, an authority is a “transferred Northern Ireland
25authority” if its functions—

(a)are exercisable only in or as regards Northern Ireland, and

(b)are wholly or mainly functions that do not relate to reserved or
excepted matters (within the meaning given in the Northern Ireland
Act 1998).

(3)30A contracting authority that is a public undertaking or private utility is to be
treated as a transferred Northern Ireland authority for the purposes of this Act
if—

(a)it operates only in or as regards Northern Ireland, and

(b)its activities are wholly or mainly activities that do not relate to
35reserved or excepted matters.

(4)Other than in this section, a reference in this Act to a transferred Northern
Ireland authority includes a reference to an authority that is to be treated as a
a transferred Northern Ireland authority for the purposes of this Act.

(5)In this section, a reference to the award or management of a contract includes
40a reference to any steps taken for the purpose of, awarding or managing a
contract and a reference to terminating a procurement before award.

101 Minister of the Crown: restrictions on the exercise of powers

(1)A Minister of the Crown may exercise a power under this Act for the purpose
of regulating a contracting authority that is a devolved Welsh authority only in
45relation to—

Procurement Bill [HL]Page 64

(a)the award of contracts under a reserved procurement arrangement or a
transferred Northern Ireland procurement arrangement, or

(b)the management of such contracts.

(2)Subsection (1) does not apply in relation to a power under section 62 (electronic
5invoicing).

(3)A Minister of the Crown may not make regulations under section 62 (electronic
invoicing) for the purpose of regulating a devolved Welsh authority without
the consent of the Welsh Ministers, unless the regulations relate to—

(a)the award of contracts under a reserved procurement arrangement or a
10transferred Northern Ireland procurement arrangement, or

(b)the management of such contracts.

(4)A Minister of the Crown may not make regulations under this Act for the
purpose of regulating a transferred Northern Ireland authority without the
consent of a Northern Ireland department, unless the regulations relate to—

(a)15the award of contracts under a reserved procurement arrangement or a
devolved Welsh procurement arrangement, or

(b)the management of such contracts.

(5)Subsections (1) and (4) do not apply in relation to a power under—

(a)section 81 (treaty state suppliers);

(b)20section 83 (non-discrimination in Scotland);

(c)section 113 (consequential provision), or

(d)section 115 (commencement).

(6)In this section a reference to the award or management of a contract includes a
reference to any steps taken for the purpose of, awarding or managing a
25contract and a reference to terminating a procurement before award.

102 Definitions relating to procurement arrangements

(1)In this Act, a reference to a contract being awarded under a procurement
arrangement is a reference to a contract being awarded—

(a)in accordance with a framework or similar arrangement,

(b)30by reference to a dynamic market or similar arrangement,

(c)to a centralised procurement authority or equivalent body, or

(d)following a procedure or other selection process carried out—

(i)jointly by two or more authorities, or

(ii)by a centralised procurement authority or equivalent body.

(2)35A procurement arrangement is a devolved Welsh procurement arrangement
if—

(a)the framework was awarded by a devolved Welsh authority,

(b)the dynamic market was established by a devolved Welsh authority,

(c)the centralised procurement authority is a devolved Welsh authority,
40or

(d)a devolved Welsh authority is designated the lead authority in the
tender or transparency notice.

(3)A procurement arrangement is a transferred Northern Ireland procurement
arrangement if—

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(a)the framework was awarded by a transferred Northern Ireland
authority,

(b)the dynamic market was established by a transferred Northern Ireland
authority,

(c)5the centralised procurement authority is a transferred Northern Ireland
authority, or

(d)a transferred Northern Ireland authority is designated the lead
authority in the tender or transparency notice.

(4)A procurement arrangement is a devolved Scottish procurement arrangement
10if—

(a)the framework or similar arrangement was awarded by a devolved
Scottish authority,

(b)the dynamic market or similar arrangement was established by a
devolved Scottish authority,

(c)15the centralised procurement authority or equivalent body is a devolved
Scottish authority, or

(d)a devolved Scottish authority was designated the lead authority in
respect of the procedure or selection process.

(5)A procurement arrangement is a reserved procurement arrangement if it is
20not—

(a)a devolved Welsh procurement arrangement,

(b)a transferred Northern Ireland procurement arrangement, or

(c)a devolved Scottish procurement arrangement.

(6)In this section—

  • 25“equivalent body” means, in relation to a centralised procurement
    authority, a body carrying out functions of a kind described in section
    10(4) (centralised procurement authorities);

  • “framework” includes a framework within the meaning given in Scottish
    procurement legislation;

  • 30“similar arrangement” includes, in relation to a dynamic market, a
    dynamic purchasing or qualification system.

103 Powers relating to procurement arrangements

(1)A Minister of the Crown may by regulations make provision, including
provision amending this Act, for the purpose of regulating—

(a)35the award of contracts by devolved Scottish authorities under—

(i)reserved procurement arrangements,

(ii)devolved Welsh procurement arrangements, or

(iii)transferred Northern Ireland procurement arrangements, and

(b)the management of such contracts.

(2)40A Minister of the Crown may by regulations amend this Act for the purpose of
disapplying provision so far as it relates to—

(a)the award of contracts under devolved Scottish procurement
arrangements, and

(b)the management of such contracts.

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(3)A Minister of the Crown or the Scottish Ministers may by regulations amend
Scottish procurement legislation for the purpose of applying it in relation to—

(a)the award of contracts under devolved Scottish procurement
arrangements by contracting authorities, and

(b)5the management of such contracts.

(4)In this section, “Scottish procurement legislation” means—

(a)the Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446),

(b)the Utilities Contracts (Scotland) Regulations 2016 (S.S.I. 2016/49),

(c)the Concession Contracts (Scotland) Regulations 2016 (S.S.I. 2016/65),
10and

(d)any legislation which modifies or replaces those regulations (including
an Act of the Scottish Parliament).

Part 12 Amendments and repeals

104 15Disapplication of duty in section 17 of the Local Government Act 1988

(1)In section 17 of the Local Government Act 1988 (exclusion of non-commercial
considerations), in subsection (11), after “imposed on it by” insert “the
Procurement Act 2022 or”.

(2)A Minister of the Crown or the Welsh Ministers may by regulations make
20provision disapplying the duty under section 17(1) of the Local Government
Act 1988 (“the 1988 Act”) as it relates to a relevant authority.

(3)The regulations may disapply the duty as it relates to—

(a)all relevant authorities or those that are specified;

(b)all functions that are regulated by section 17 of the 1988 Act (see
25subsection (4) of that section) or those that are specified;

(c)contracts of all types mentioned in section 17(1) of the 1988 Act, or of
those types that are specified;

(d)all non-commercial matters (see section 17(5) of the 1988 Act) or those
that are specified.

(4)30In this section—

  • “relevant authority” means an authority to which section 17 of the 1988
    Act applies other than a devolved Scottish authority;

  • “specified” means specified, or of a description specified, in regulations
    under this section.

105 35Single source defence contracts

Schedule 10 makes amendments to Part 2 of the Defence Reform Act 2014
(single source contracts).

106 Concurrent powers and the Government of Wales Act 2006

In Schedule 7B to the Government of Wales Act 2006 (general restrictions on
40devolved competence)—

(a)at the end of paragraph 9(8)(b)(vi), omit “or”,

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(b)in paragraph 9(8)(b)(vii), at the end insert “or

(viii)the Procurement Act 2022.”,

(c)at the end of paragraph 11(6)(b)(vii), omit “or”, and

(d)in paragraph 11(6)(b)(viii), at the end insert “or

(ix)5the Procurement Act 2022.”

107 Repeals etc

(1)The enactments set out in Schedule 11 are repealed or revoked.

(2)The following regulations apply only in relation to devolved Scottish
authorities—

(a)10the Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446);

(b)the Utilities Contracts (Scotland) Regulations 2016 (S.S.I. 2016/49);

(c)the Concession Contracts (Scotland) Regulations 2016 (S.S.I. 2016/65).

Part 13 General

108 15Power to disapply this Act in relation to procurement by NHS in England

(1)A Minister of the Crown may by regulations make provision disapplying any
provision of this Act in relation to—

(a)the award or management of a contract for the supply of services or
goods to which health procurement rules apply;

(b)20a relevant authority, to the extent it is carrying out activities within
paragraph (a).

(2)In subsection (1)—

  • “health procurement rules” means provision made by regulations under
    section 12ZB of the National Health Service Act 2006 (procurement of
    25healthcare services etc for the health service in England);

  • “relevant authority” has the meaning given in that section.

109 Power to amend this Act in relation to private utilities

(1)An appropriate authority may by regulations amend this Act for the purpose
of reducing the regulation of private utilities under this Act.

(2)30The regulations may, for example, make provision—

(a)disapplying requirements under this Act in relation to private utilities;

(b)modifying requirements under this Act as they apply in relation to
private utilities so as to reduce any burden, or the overall burdens, for
private utilities resulting directly or indirectly from this Act.

(3)35Before making regulations under this section an appropriate authority must
consult—

(a)persons appearing to the authority to represent the views of private
utilities, and

(b)such other persons as the authority considers appropriate.

(4)40In this section “burden” includes—

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(a)a financial cost;

(b)an administrative inconvenience;

(c)an obstacle to efficiency, productivity or profitability.

110 Regulations

(1)5Any power to make regulations under this Act—

(a)so far as exercisable by a Minister of the Crown or the Welsh Ministers
is exercisable by statutory instrument,

(b)so far as exercisable by a Northern Ireland department, is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern
10Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(2)For regulations made under this Act by the Scottish Ministers, see also section
27 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)
(Scottish statutory instruments).

(3)Regulations under this Act may—

(a)15make different provision for different purposes or areas;

(b)make provision generally or only in relation to specified cases;

(c)make incidental, supplementary or consequential provision;

(d)make transitional, transitory or saving provision.

(4)A statutory instrument containing (whether alone or with other provision)
20regulations made by a Minister of the Crown under any of the following
provisions may not be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament—

(a)section 6 (defence and security contracts);

(b)section 8 (light touch contracts);

(c)25section 33 (reserving contracts to public service mutuals);

(d)section 61 (debarment decisions: appeals);

(e)section 64 (payment compliance notices);

(f)section 70 (contract change notices and publication of modifications);

(g)section 81 (treaty state suppliers: international agreements);

(h)30section 83 (treaty state suppliers: non-discrimination in Scotland);

(i)section 86 (notices, documents and information);

(j)section 88 (information relating to a procurement);

(k)section 103 (powers relating to procurement arrangements);

(l)section 104 (disapplication of section 17 of Local Government Act 1988);

(m)35section 108 (disapplication of Act: NHS procurement in England);

(n)section 109 (amendment of Act in relation to private utilities);

(o)section 113 (consequential provision), if the regulations made under it
modify primary legislation;

(p)paragraph 3 or 5 of Schedule 1 (threshold amounts);

(q)40Schedule 2(exempted contracts);

(r)Schedule 4 (utility activities).

(5)A statutory instrument containing regulations made by a Minister of the
Crown under section 41 must be laid before Parliament after being made.

(6)Any other statutory instrument containing regulations made by a Minister of
45the Crown under any provision of this Act, except section 115

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(commencement), is subject to annulment in pursuance of a resolution of either
House of Parliament.

(7)Regulations contained in a statutory instrument laid before Parliament under
subsection (5) cease to have effect at the end of the period of 28 days beginning
5with the day on which the instrument is made unless, during that period, the
instrument is approved by a resolution of each House of Parliament.

(8)In calculating the period of 28 days, no account is to be taken of any whole days
that fall within a period during which—

(a)Parliament is dissolved or prorogued, or

(b)10either House of Parliament is adjourned for more than four days.

(9)If regulations cease to have effect as a result of subsection (7), that does not—

(a)affect the validity of anything previously done under the regulations,
or

(b)prevent the making of new regulations.

(10)15A statutory instrument containing (whether alone or with other provision)
regulations made by the Welsh Ministers under any of the following
provisions may not be made unless a draft of the instrument has been laid
before, and approved by a resolution of, Senedd Cymru—

(a)section 8 (light touch contracts);

(b)20section 33 (reserving contracts to public service mutuals);

(c)section 64 (payment compliance notices);

(d)section 81 (treaty state suppliers: international agreements);

(e)section 86 (notices, documents and information);

(f)section 88 (information relating to a procurement);

(g)25section 104 (disapplication of section 17 of Local Government Act 1988);

(h)section 109 (amendment of Act in relation to private utilities);

(i)section 113 (consequential provision), if the regulations made under it
modify primary legislation;

(j)paragraph 3 or 5 of Schedule 1 (threshold amounts);

(k)30Schedule 2 (exempted contracts);

(l)Schedule 4 (utility activities).

(11)Any other statutory instrument containing regulations made by the Welsh
Ministers under this Act is subject to annulment in pursuance of a resolution
of Senedd Cymru.

(12)35Regulations of a Northern Ireland department under any of the following
provisions (whether alone or with other provision) may not be made unless a
draft of the regulations has been laid before, and approved by a resolution of,
the Northern Ireland Assembly—

(a)section 8 (light touch contracts);

(b)40section 33 (reserving contracts to public service mutuals);

(c)section 64 (payment compliance notices);

(d)section 81 (treaty state suppliers: international agreements);

(e)section 86 (notices, documents and information);

(f)section 88 (information relating to a procurement);

(g)45section 109 (amendment of Act in relation to private utilities);

(h)section 113 (consequential provision), if the regulations made under it
modify primary legislation;