Procurement Act 2023

43 Switching to direct award

(1) A contracting authority may award a public contract directly to a supplier that is not an excluded supplier if—

(a) the authority has invited suppliers to submit tenders as part of, or requests to participate in, a competitive tendering procedure in respect of the contract,

(b) it has not received any suitable tenders or requests in response, and

(c) it considers that award under section 19 is not possible in the circumstances.

(2) A tender or request is not suitable if the contracting authority considers that—

(a) it would be disregarded in an assessment of tenders under section 19(3)(a), (b) or (c);

(b) it does not satisfy the contracting authority’s requirements or the award criteria when assessed by reference to the assessment methodology and the relative importance of the criteria indicated under section 23(3);

(c) there is evidence of corruption or collusion between suppliers or between suppliers and contracting authorities;

(d) it materially breaches a procedural requirement in the tender notice or associated tender documents.

(3) A reference to a tender breaching a procedural requirement includes a reference to a supplier breaching a procedural requirement in relation to the tender.

(4) A breach is material if the contracting authority considers that ignoring it would put the tender at an unfair advantage.

(5) A contracting authority may carry out a selection process or take such other preliminary steps as it considers appropriate for the purpose of awarding a contract under subsection (1).

(6) Before awarding a contract to a supplier under this section, a contracting authority must consider whether the supplier—

(a) is an excludable supplier, or

(b) submitted an unsuitable tender or request in response to the invitation referred to in subsection (1)(a).