Procurement Act 2023

Valid from 19/01/2024

Prospective

PART 2 U.K. Other mandatory exclusion grounds

National security U.K.

35 (1) A mandatory exclusion ground applies to a supplier in relation to contracts of a particular description if an appropriate authority determines that the supplier or a connected person—

(a) poses a threat to the national security of the United Kingdom, and

(b) would pose such a threat in relation to public contracts of that description.

(2) In sub-paragraph (1)—

(a) the reference to an appropriate authority is a reference to the appropriate authority that is considering whether the exclusion ground applies;

(b) the reference to a particular description includes, for example, a description by reference to—

(i) the goods, services or works being supplied;

(ii) the location of the supply;

(iii) the contracting authority concerned.

(3) Sub-paragraph (1) applies only for the purpose of an appropriate authority’s functions under sections 59 to 66 (debarment), and cannot otherwise be relied on by a contracting authority when considering whether a supplier is an excluded supplier under section 57(1)(a).

Commencement Information

I1 Sch. 6 para. 35 not in force at Royal Assent, see s. 127(2)

Misconduct in relation to tax U.K.

36 (1) A mandatory exclusion ground applies to a supplier if the supplier or a connected person has been liable to a penalty under—

(a) section 69C of the Value Added Tax Act 1994 (transactions connected with VAT fraud) except where the penalty is reduced under section 70 of that Act, or

(b) section 25 of the Finance Act 2003 (evasion of tax or duty).

(2) The supplier or connected person is not to be treated as having been liable to such a penalty unless HMRC has assessed the amount of the penalty and the time for any appeal or further appeal relating to the penalty has expired or, if later, any appeal or final appeal relating to it has been finally determined.

Commencement Information

I2 Sch. 6 para. 36 not in force at Royal Assent, see s. 127(2)

37 (1) A mandatory exclusion ground applies to a supplier if a penalty has been payable by the supplier or a connected person under—

(a) Schedule 24 to the Finance Act 2007 (errors in tax documentation), or

(b) Schedule 41 to the Finance Act 2008 (failure to notify and certain VAT and excise wrongdoing),

but only where the conduct giving rise to that penalty was deliberate.

(2) Such a penalty is not to be treated as having been payable unless—

(a) if the penalty has been assessed, the time for any appeal or further appeal relating to the penalty has expired or, if later, any appeal or final appeal relating to it has been finally determined, or

(b) a contract has been made between HMRC and the supplier or connected person, under which HMRC undertook not to assess the penalty or (if it was assessed) not to take proceedings to recover it.

Commencement Information

I3 Sch. 6 para. 37 not in force at Royal Assent, see s. 127(2)

38 (1) A mandatory exclusion ground applies to a supplier if—

(a) the supplier or a connected person has entered into or carried out tax arrangements that are abusive (within the meaning given in section 207 of the Finance Act 2013), and

(b) adjustments have accordingly been made under section 209 of that Act (countering tax advantages), including as it applies under section 10 of the National Insurance Contributions Act 2014.

(2) Adjustments are not to be treated as having been made until they can no longer be challenged, whether on appeal or otherwise.

Commencement Information

I4 Sch. 6 para. 38 not in force at Royal Assent, see s. 127(2)

39 (1) A mandatory exclusion ground applies to a supplier if the supplier or a connected person has been found by HMRC, in exercise of its powers in respect of VAT, to have engaged in an abusive practice.

(2) The supplier or connected person is not to be treated as having been found by HMRC to have engaged in those arrangements or practices until the finding can no longer be challenged, whether on appeal or otherwise.

Commencement Information

I5 Sch. 6 para. 39 not in force at Royal Assent, see s. 127(2)

40 (1) A mandatory exclusion ground applies to a supplier if the supplier or a connected person has incurred a defeat in respect of notifiable tax arrangements they have entered into.

(2) In this paragraph—

• “defeat” means that—

  (a)

  Condition A in paragraph 5 of Schedule 16 to the Finance (No. 2) Act 2017, or

  (b)

  Condition B in paragraph 6 of that Schedule,

  is met in respect of the arrangements (where “T” in those paragraphs is taken to mean the supplier or connected person entering into the arrangements);

• “notifiable tax arrangements” means tax arrangements in respect of which a reference number—

  (a)

  has been notified to the supplier or connected person under section 311A, 312 or 312ZA of the Finance Act 2004 (disclosure of tax avoidance schemes) or paragraph 22A, 23 or 23A of Schedule 17 to the Finance (No. 2) Act 2017 (disclosure of tax avoidance schemes: VAT and other indirect taxes), and

  (b)

  has not been withdrawn;

• “tax arrangements” has the meaning given in paragraph 3(1) of Schedule 16 to the Finance (No. 2) Act 2017.

Commencement Information

I6 Sch. 6 para. 40 not in force at Royal Assent, see s. 127(2)

Competition law infringements U.K.

41 (1) A mandatory exclusion ground applies to a supplier if the CMA has made a decision under the Competition Act 1998 that the Chapter I prohibition (within the meaning given by section 2 of that Act) has been infringed by an agreement or concerted practice—

(a) to which the supplier or a connected person was party, and

(b) which was a cartel (within the meaning given by paragraph 4(1) of Schedule 8A to that Act).

(2) Sub-paragraph (1) does not apply if the CMA did not impose a penalty on the supplier or connected person in respect of the infringement because the supplier or connected person was an immunity recipient (within the meaning given by paragraph 14 of Schedule 8A to the Competition Act 1998).

(3) In this paragraph, references to the CMA include references to a regulator referred to in section 54(1) of the Competition Act 1998 in circumstances where it exercises functions concurrently with the CMA in accordance with that Act.

Commencement Information

I7 Sch. 6 para. 41 not in force at Royal Assent, see s. 127(2)

Equivalents outside the United Kingdom U.K.

42 A mandatory exclusion ground applies to a supplier if the supplier or a connected person—

(a) has been subject to a penalty or a decision by a regulator, court or other authority outside the United Kingdom, where the conduct giving rise to that penalty or decision is conduct that would give rise to a penalty or decision referred to in any of paragraphs 36 to 41 if committed in the United Kingdom, in circumstances where the penalty or decision would be a mandatory exclusion ground, or

(b) has had a tax advantage counteracted outside the United Kingdom, in circumstances where the supplier or connected person would have incurred a defeat of the kind referred to in paragraph 40 had the tax advantage arisen in respect of tax payable in the United Kingdom.

Commencement Information

I8 Sch. 6 para. 42 not in force at Royal Assent, see s. 127(2)

Failure to cooperate with investigation U.K.

43 A mandatory exclusion ground applies to a supplier if—

(a) an appropriate authority has given the supplier or a connected person notice under section 60(6) (requests for documents or other assistance in connection with investigation),

(b) the supplier or connected person has failed to comply with the notice to the satisfaction of the authority before the end of the period specified in the notice, and

(c) a Minister of the Crown has made a determination that the failure to do so was sufficiently serious so as to warrant constituting a mandatory exclusion ground.

Commencement Information

I9 Sch. 6 para. 43 not in force at Royal Assent, see s. 127(2)