Procurement Bill [HL] (HL Bill 4)

Procurement Bill [HL]Page 70

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

(j)Schedule 2 (exempted contracts);

(k)Schedule 4 (utility activities).

(13)Any other regulations of a Northern Ireland department under this Act are
5subject to negative resolution within the meaning of section 41(6) of the
Interpretation Act (Northern Ireland) 1954 as if they were a statutory
instrument within the meaning of that Act.

(14)Regulations of the Scottish Ministers under sections 83 (treaty state suppliers:
non-discrimination) and 103 (powers relating to procurement arrangements)
10are subject to the affirmative procedure (see Part 2 of the Interpretation and
Legislative Reform (Scotland) Act 2010.

111 Interpretation

(1)In this Act—

  • “appropriate authority” means—

    (a)

    15a Minister of the Crown,

    (b)

    the Welsh Ministers, or

    (c)

    a Northern Ireland department;

  • “enactment” includes primary legislation and legislation made under
    primary legislation;

  • 20“Minister of the Crown” has the same meaning as in the Ministers of the
    Crown Act 1975;

  • “modify”, in relation to enactments, includes amend, repeal or revoke;

  • “Northern Ireland legislation” has the meaning given in section 24(5) of
    the Interpretation Act 1978;

  • 25“primary legislation” means—

    (a)

    an Act of Parliament,

    (b)

    an Act of the Scottish Parliament,

    (c)

    an Act or Measure of Senedd Cymru, or

    (d)

    Northern Ireland legislation;

  • 30VAT” means value added tax;

  • “working day” means a day other than—

    (a)

    a Saturday or Sunday, or

    (b)

    a day which is a bank holiday in any part of the United
    Kingdom under the Banking and Financial Dealings Act 1971.

(2)35In this Act, a reference to an amount payable under a contract includes a
reference to any amount referable to VAT.

112 Index of defined expressions

In this Act the expressions listed in the left-hand column of the table have the
meaning given by, or are to be interpreted in accordance with, the provisions
40listed in the right-hand column.

ExpressionProvision
Academysection 63

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ExpressionProvision
appropriate authoritysection 111
associated suppliersection 26
associated tender documentsection 20
5award criteriasection 22
below-threshold contractsection 4
central government authority Schedule 1
centralised procurement authoritysection 10
concession contract section 7
10condition of participation section 21
connected person Schedule 6
contract award noticesection 48
contract change noticesection 70
contract details noticesection 51
15contracting authority section 1
defence and security contract section 6
defence authority contractsection 6
devolved Scottish authority section 1
devolved Scottish procurement
20arrangement
section 102
devolved Welsh authoritysection 99
devolved Welsh procurement
arrangement
section 102
discretionary exclusion groundSchedule 7
25dynamic marketsection 35
enactmentsection 111
estimated value section 3
excludable supplier section 54
excluded supplier section 54
30exempted contractSchedule 2
framework section 44
light touch contract section 8

Procurement Bill [HL]Page 72



ExpressionProvision
maintained school section 63
mandatory exclusion ground Schedule 6
Minister of the Crown section 111
5modifysection 111
open frameworksection 47
primary legislation section 111
private utility section 5
a procurement section 10
10public contract section 2
public undertaking section 1
reserved procurement
arrangement
section 102
Scottish procurement legislationsection 103
15sixth form college corporationsection 63
tender notice section 20
threshold amount Schedule 1
transferred Northern Ireland
authority
section 100
20transferred Northern Ireland
procurement arrangement
section 102
transparency notice section 43
treaty state supplier section 81
United Kingdom suppliersection 82
25utilities contract section 5
utility activitysection 5
VATsection 111
working daysection 111
worksSchedule 1
30works contract Schedule 1

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113 Power to make consequential, etc, provision

(1)An appropriate authority may by regulations make supplementary, incidental
or consequential provision in connection with any provision of this Act.

(2)Regulations under subsection (1) may modify primary legislation.

114 5Extent

This Act extends to England and Wales, Scotland and Northern Ireland.

115 Commencement

(1)This Part comes into force on the day on which this Act is passed.

(2)The remaining provisions of this Act come into force on such day as a Minister
10of the Crown may by regulations appoint; and different days may be
appointed for different purposes.

(3)Regulations under subsection (2) may make transitional, transitory or saving
provision.

116 Short title

15This Act may be cited as the Procurement Act 2022.

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SCHEDULES

Section 2

Schedule 1 Threshold amounts

1(1)The threshold amount for a contract of a type referred to in the second
5column of the table below is as set out in the corresponding row of the third
column.

Type of contractThreshold amount
1Defence and security contract that is a
works contract
£5,336,937
210Defence and security contract that is a
concession contract
£5,336,937
3Defence and security contract not within
row 1, 2 or 8
£426,955
4Utilities contract that is a works contract£5,336,937
515Utilities contract that is a light touch
contract
£884,720
6Utilities contract not within row 3, 4 or 5£426,955
7Light touch contract that is a concession
contract
£5,336,937
208Light touch contract not within row 5 or 7£663,540
9Concession contract not within row 2, 6 or 7£5,336,937
10Works contract not within row 1, 4 or 9£5,336,937

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Type of contractThreshold amount
11Contract for the supply of goods, services or
works to a central government authority not
within any other row
£138,760
125Contract for the supply of goods, services or
works to a sub-central government
authority not within any other row
£213,477

(2)See section 6(3) in relation to the application of the thresholds in the table to
certain contracts concerning defence and security.

210An appropriate authority may by regulations amend this Schedule for the
purpose of amending the threshold amount for—

(a)a type of contract in any of rows 4, 6 or 9 to 12 of the table in order to
reflect an amendment to the corresponding threshold for contracts of
that type in the United Kingdom’s Coverage Schedule to the GPA;

(b)15the type of contract in row 1 in order to reflect an amendment to the
threshold amount for the type of contract in row 10;

(c)the type of contract in row 2, in order to reflect an amendment to the
threshold amount for the type of contract in row 9;

(d)the type of contract in row 3, in order to reflect an amendment to the
20threshold amount for the type of contract in row 6.

3An appropriate authority may by regulations amend this Schedule for the
purpose of amending the threshold amount for —

(a)any type of light touch contract in row 5, 7 or 8 of the table;

(b)any type of defence and security contract in rows 1 to 3 where the
25amendment is not within paragraph 2.

4A contract is a “works contract” if its main purpose is—

(a)the carrying out of works under the contract (whether or not
resulting in a complete work), or

(b)to facilitate the carrying out of works otherwise than under the
30contract, where those works are intended to result in a complete
work that complies with specifications set out in, or determined
under, the contract.

5In this Schedule—

  • “central government authority” means a contracting authority
    35specified, or of a description specified, in regulations made by an
    appropriate authority;

  • “complete work” means a functioning structure that results from the
    carrying out of works;

  • the “GPA” means the Agreement on Government Procurement signed
    40at Marrakesh on 15 April 1994, as amended from time to time;

  • “sub-central government authority” means a contracting authority that
    is not—

    (a)

    a central government authority, or

    (b)

    a private utility or a public undertaking;

  • 45“works” has the meaning given by regulations made by an appropriate
    authority.

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Section 2

Schedule 2 Exempted contracts

General

1(1)A contract is an exempted contract if it is a contract of a kind listed in this
5Schedule.

(2)But a contract is not an exempted contract if—

(a)the goods, services or works representing the main purpose of the
contract could be supplied under a separate contract, and

(b)that contract would not be a contract of a kind listed in this Schedule.

10Vertical arrangements

2(1)A contract between a contracting authority (“A”) and—

(a)a controlled person in relation to A,

(b)another contracting authority (“B”) in relation to whom A is a
controlled person, or

(c)15another controlled person in relation to B.

(2)A person is a “controlled person” in relation to a contracting authority if—

(a)the person is in the position of a subsidiary undertaking of that
authority within the meaning given in section 1162 of the Companies
Act 2006, whether or not either the authority or the person is an
20undertaking within the meaning given in section 1161(1) of that Act,

(b)no person other than the authority exerts, or can exert, a decisive
influence on the activities of the person (either directly or indirectly),

(c)there are no shares in the person that are held directly by a person
other than a public authority, and

(d)25more than 80 per cent of the activities carried out by the person are
carried out for or on behalf of the contracting authority, or for or on
behalf of other controlled persons in relation to the authority.

(3)For the purposes of sub-paragraph (2)(b), a person does not exercise a
decisive influence on the activities of a person only by reason of being a
30director, officer or manager of the person acting in that capacity.

(4)An appropriate authority may by regulations make provision about how a
calculation as to the percentage of activities carried out by a person is to be
made for the purposes of sub-paragraph (2)(d).

Horizontal arrangements

3(1)35A contract between contracting authorities only that relates to a horizontal
arrangement between those authorities.

(2)A “horizontal arrangement” means an arrangement—

(a)entered into—

(i)with the aim of achieving objectives the authorities have in
40common in connection with the exercise of their public
functions;

(ii)solely in the public interest;

Procurement Bill [HL]Page 77

(b)in which no more than 20 per cent of the activities contemplated by
the arrangement are intended to be carried out other than for the
purposes of the authorities’ public functions.

(3)An appropriate authority may by regulations make provision about how a
5calculation as to the percentage of activities carried out by a person is to be
made for the purposes of sub-paragraph (2)(b).

Land and buildings etc

4(1)A contract—

(a)for the acquisition, by whatever means, of land, buildings or any
10other complete work, or of an interest in or right over any of them, or

(b)which concerns an interest in or right over any of them.

(2)In this paragraph “complete work” has the meaning given in Schedule 1.

Broadcasting

5A contract for the acquisition, development, production or co-production of
15material intended for broadcast (by any means) by a contracting authority to
the general public.

6A contract for the broadcast (by any means) by a contracting authority to the
general public of material (including, for example, a programme or an
advertisement) supplied by the supplier.

20Electronic communications services

7A contract the main purpose of which is facilitating the provision by a
contracting authority to the general public of an electronic communications
service (within the meaning given in section 32 of the Communications Act
2003).

825A contract the main purpose of which is permitting a contracting authority
to provide, maintain or use a public electronic communications network
(within the meaning given in section 151 of the Communications Act 2003).

Alternative dispute resolution

9A contract for the provision to a contracting authority of arbitration,
30mediation or conciliation services, or of any other similar services.

Legal services

10(1)A contract for the provision of exempt legal services to a contracting
authority.

(2)The following services are “exempt legal services”—

(a)35legal representation by a lawyer in judicial proceedings or other
dispute resolution proceedings, whether in or outside the United
Kingdom;

(b)the giving of legal advice by a lawyer in connection with, or in
contemplation of, any such proceedings;

(c)40document certification or authentication services provided by a
notary in circumstances where the certification or authentication is



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required under an enactment or other rule of law to be performed by
a notary;

(d)services involving the carrying out of any legal activity provided by
a person required to provide them under an enactment or an order
5of a court or tribunal.

(3)In this paragraph—

  • “judicial proceedings” includes proceedings before a court, tribunal or
    public authority;

  • “lawyer” means—

    (a)

    10a person who is an authorised person or an exempt person in
    relation to a reserved legal activity for the purposes of the
    Legal Services Act 2007 (see sections 18 and 19 of that Act);

    (b)

    a solicitor or advocate in Scotland;

    (c)

    a solicitor or barrister in Northern Ireland;

    (d)

    15a person who is a member, and entitled to practise as such, of
    a legal profession regulated in a jurisdiction outside the
    United Kingdom;

  • “legal activity has the same meaning as in the Legal Services Act 2007
    (see section 12 of that Act);

  • 20“other dispute resolution proceedings” includes arbitration, mediation
    and conciliation.

Financial services

11A contract for the lending of money in any currency to a contracting
authority.

12(1)25A contract for the provision or carrying out of an investment service or
activity, or of an ancillary service, in relation to a financial instrument by an
investment firm or a qualifying credit institution.

(2)In this paragraph—

  • “ancillary service” means a service listed as such in Part 3A of Schedule
    302 to the Financial Services and Markets Act 2000 (Regulated
    Activities) Order 2001 (S.I. 2001/544);

  • “financial instrument”, “investment firm” and “qualifying credit
    institution” have the meanings given in Article 3 of that Order;

  • “investment service or activity” means a service or activity listed as
    35such in Part 3 of Schedule 2 to that Order.

13A contract for the provision of services by the Bank of England.

Employment

14A contract of employment or a worker’s contract (each as defined in section
230 of the Employment Rights Act 1996).

1540Any other contract between a contracting authority and an individual for the
remuneration or compensation of that individual where they are appointed
to a public office by the contracting authority, including as a—

(a)non-executive director of a public authority, or

(b)member of a public inquiry.

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Emergency services

16A contract for the provision by an organisation or association not run for
profit of one or more of the following services—

(a)services relating to the promotion of fire safety;

(b)5fire extinguishing services;

(c)services for the protection of life and property in the event of fires;

(d)search and rescue services;

(e)civil defence services;

(f)nuclear safety services;

(g)10ambulance services provided in respect of medical emergencies.

Public passenger transport services

17A contract for the provision of public passenger transport services of a kind
specified in regulations made by an appropriate authority.

Research and development services

18(1)15A contract for the provision of research and development services to a
contracting authority, where—

(a)the services are intended by the authority to be for, or to result in,
benefit to the public, and

(b)the contract does not also provide for the provision of goods or
20works.

(2)In this paragraph, “research and development services” means services that
consist of one or more of the following activities—

(a)research to acquire new scientific or technical knowledge without
any particular application or use in view;

(b)25research directed mainly at generating scientific or technical
knowledge for the purposes of a particular objective;

(c)development which uses existing knowledge to initiate the
manufacture of new materials or products, establish new processes,
systems or services, or to achieve a substantial improvement in
30existing materials, products, processes, systems or services;

(d)the manufacture and testing of prototypes.

(3)But services are not “research and development services” if they include—

(a)the production of tools for manufacture, or

(b)the development of industrial processes to manufacture goods or
35works arising from research or development.

International agreements and organisations

19A contract awarded under a procedure specified in an international
agreement of which the United Kingdom is a signatory relating to—

(a)the stationing of military personnel, or

(b)40the implementation of a joint project between the signatories to that
agreement.

20A contract awarded under a procedure—