PART 3Award of public contracts and procedures

CHAPTER 2Competitive award

Awarding contracts by reference to dynamic markets

I134Competitive award by reference to dynamic markets

1

A competitive flexible procedure may provide for the following suppliers to be excluded from participating in, or progressing as part of, the procedure—

a

suppliers that are not members of an appropriate dynamic market, or

b

suppliers that are not members of an appropriate part of an appropriate dynamic market.

2

Subsection (3) applies in relation to the award of a public contract under section 19 if the competitive flexible procedure provides for suppliers to be excluded as set out in subsection (1).

3

In assessing tenders under section 19, a contracting authority must disregard any tender from a supplier that is not a member of—

a

the appropriate dynamic market, or

b

the appropriate part of the appropriate dynamic market.

4

A contracting authority must, before excluding suppliers or disregarding tenders under this section, consider any applications for membership of the market or part of the market from suppliers that have submitted a request to participate in the competitive flexible procedure, or submitted a tender as part of the competitive flexible procedure.

5

Subsection (4) does not apply in relation to an application for membership if, due to exceptional circumstances arising from the complexity of the particular procurement, a contracting authority is unable to consider the application before—

a

the deadline for submitting a request to participate in the procedure, or

b

where there has been no invitation to submit such requests, the deadline for submitting a first or only tender.

6

A dynamic market or part of a dynamic market is “appropriate” for the purposes of this section if its terms permit the award of the contract by the contracting authority.

7

This section does not apply in relation to the award of a concession contract, unless the concession contract is also a utilities contract.

8

In this Act—

  • “dynamic market” means arrangements established under section 35(1);

  • references to a contract being awarded by reference to suppliers’ membership of a dynamic market are references to a contract being awarded in reliance on this section;

  • references to suppliers’ membership of a dynamic market are references to suppliers’ participation in arrangements established under section 35(1).