Procurement Act 2023

109 Recommendations following procurement investigations

(1) This section applies where an appropriate authority—

(a) has conducted a procurement investigation under section 108, 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 requirement of this Act.

(2) The appropriate authority may issue a recommendation (a “section 109 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 the recommendation;

(b) the timing of such action.

(3) A section 109 recommendation must not relate to how the relevant contracting authority should—

(a) comply with section 12 (procurement objectives);

(b) have regard to the national procurement policy statement (see section 13) or the Wales procurement policy statement (see section 14);

(c) comply with section 86 (regulated below-threshold contracts: duty to consider SMEs);

(d) 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 109 recommendation issued to it.

(5) A relevant contracting authority to which a section 109 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) what 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 109 recommendation, or has taken different action to that recommended, the progress report must also include the authority’s reasons for doing so.

(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;

• “procurement investigation” and “relevant contracting authority” have the meanings given in section 108.