Procurement Act 2023

Exclusions and modifications

26 Excluding suppliers from a competitive award

(1) In assessing tenders under section 19, a contracting authority must disregard any tender from a supplier that is an excluded supplier.

(2) Before assessing which tender best satisfies the award criteria for the purposes of section 19, a contracting authority—

(a) must consider whether a supplier is an excludable supplier, and

(b) may disregard any tender from an excludable supplier.

(3) If the supplier is an excluded or excludable supplier only by virtue of an associated person being an excluded or excludable supplier, the contracting authority must, before disregarding a tender—

(a) notify the supplier of its intention to disregard, and

(b) give the supplier reasonable opportunity to replace the associated person.

(4) In this Act, “associated person” means a person that the supplier is relying on in order to satisfy the conditions of participation (see section 22(8)), but not a person who is to act as guarantor as described in section 22(9).

27 Excluding suppliers from a competitive flexible procedure

(1) Before permitting a supplier to participate in a competitive flexible procedure, a contracting authority must determine whether the supplier is—

(a) an excluded supplier, or

(b) an excludable supplier.

(2) The contracting authority must exclude an excluded supplier from participating in, or progressing as part of, the competitive flexible procedure.

(3) The contracting authority may exclude an excludable supplier from participating in, or progressing as part of, the competitive flexible procedure.

(4) Before excluding a supplier that is an excluded supplier or excludable supplier only by virtue of an associated person, a contracting authority must—

(a) notify the supplier of its intention, and

(b) provide the supplier with reasonable opportunity to replace the associated person.

(5) In this section, a reference to a supplier participating in a competitive flexible procedure is a reference to a supplier participating beyond the initial submission of tenders or requests to participate.

28 Excluding suppliers by reference to sub-contractors

(1) A contracting authority must as part of a competitive tendering procedure—

(a) request information about whether a supplier intends to sub-contract the performance of all or part of the public contract, and

(b) seek to determine whether any intended sub-contractor is on the debarment list.

(2) A contracting authority may, as part of a competitive tendering procedure, request information for the purpose of determining whether any intended sub-contractor is an excluded or excludable supplier.

(3) If, after requesting information under subsection (1) or (2), a contracting authority considers that a supplier intends to sub-contract to a supplier that is an excluded supplier, the contracting authority must—

(a) treat the supplier as an excluded supplier for the purpose of assessing tenders under section 19, and

(b) exclude the supplier from participating in, or progressing as part of, the competitive tendering procedure.

(4) If, after requesting information under subsection (1) or (2), a contracting authority considers that a supplier intends to sub-contract to a supplier that is an excludable supplier, the contracting authority—

(a) must treat the supplier as an excludable supplier for the purpose of assessing tenders under section 19, and

(b) may exclude the supplier from participating in, or progressing as part of, the competitive tendering procedure.

(5) Before disregarding a tender or excluding a supplier under subsection (3) or (4), a contracting authority must—

(a) notify the supplier of its intention, and

(b) give the supplier reasonable opportunity to find an alternative supplier with which to sub-contract.

(6) In this section, a reference to a supplier participating in a competitive tendering procedure is a reference to a supplier participating beyond the initial submission of tenders or requests to participate.

(7) Subsections (3) and (4) do not apply if the intended sub-contractor is an associated person.

29 Excluding a supplier that is a threat to national security

(1) This section applies if a relevant contracting authority intends to disregard a tender under section 26 or 28 or exclude a supplier under section 27 or 28 on the basis of the discretionary exclusion ground in paragraph 14 of Schedule 7 (threat to national security).

(2) The contracting authority may not disregard the tender, exclude the supplier or notify the supplier of its intention unless—

(a) the authority has notified a Minister of the Crown of its intention, and

(b) the Minister of the Crown considers that—

(i) the supplier or an intended sub-contractor is an excludable supplier by reference to paragraph 14 of Schedule 7, and

(ii) the tender should be disregarded or supplier excluded.

(3) The reference in subsection (2) to a contracting authority notifying a supplier of its intention is a reference to notification in accordance with section 26(3), 27(4) or 28(5).

(4) In this section, a “relevant contracting authority” means a contracting authority other than—

(a) a Minister of the Crown or a government department,

(b) the Corporate Officer of the House of Commons, or

(c) the Corporate Officer of the House of Lords.

30 Excluding suppliers for improper behaviour

(1) Subsection (2) applies if a contracting authority determines that—

(a) a supplier has acted improperly in relation to the award of a public contract,

(b) in consequence, the supplier is put at an unfair advantage in relation to the award, and

(c) the unfair advantage cannot be avoided other than by excluding the supplier.

(2) The contracting authority must in relation to the award—

(a) treat the supplier as an excluded supplier for the purpose of assessing tenders under section 19, and

(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.

(3) Before making a determination of the kind described in subsection (1), a contracting authority must give the supplier reasonable opportunity to—

(a) make representations, and

(b) provide relevant evidence.

(4) In subsection (1), the reference to a supplier acting improperly is reference to a supplier—

(a) failing to provide information requested by the contracting authority,

(b) providing information that is incomplete, inaccurate or misleading,

(c) accessing confidential information, or

(d) unduly influencing the contracting authority’s decision-making.

(5) Subsection (6) applies if—

(a) a contracting authority has, in relation to the award of a public contract, requested—

(i) information about a supplier’s connected persons or associated persons for the purpose of determining whether the supplier is an excluded or excludable supplier, or

(ii) other information under section 28(2) (excluding suppliers by reference to sub-contractors), and

(b) the supplier has—

(i) failed to provide the information requested, or

(ii) provided information that is incomplete, inaccurate or misleading.

(6) The contracting authority must in relation to the award—

(a) treat the supplier as an excluded supplier for the purpose of assessing tenders under section 19, and

(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.

31 Modifying a section 19 procurement

(1) A contracting authority may modify the terms of a covered procurement before the following deadlines have passed—

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

(b) in the case of a competitive flexible procedure—

(i) the deadline for submitting a request to participate in the procedure, 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 flexible procedure, a contracting authority may also modify the terms of a covered procurement before the deadline for submitting a tender for assessment under section 19 (award following competitive tendering 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) it 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) one 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 covered procurement, the authority must consider revising applicable tender deadlines and other time limits in accordance with section 54 (time limits).

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

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

(7) In this section—

• “terms of a covered procurement” means anything set out in a tender notice or associated tender documents, including any requirements of a 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)

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

(8) See section 43 for provision about switching to direct award.