PART 10Procurement oversight
I1109Recommendations 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.