(1) Before the end of the period of 30 days beginning with the day on which a public contract is terminated, a contracting authority must publish a contract termination notice.
(2) A “contract termination notice” is a notice setting out—
(a) that the contract has been terminated, and
(b) any other information specified in regulations under section 95.
(3) In this section, a reference to termination includes a reference to—
(a) discharge,
(b) expiry,
(c) termination by a party,
(d) rescission, or
(e) set aside by court order (whether or not under Part 9).
(4) This section does not apply—
(a) to private utilities, or
(b) in relation to a contract awarded under section 41 by reference to paragraph 15 of Schedule 5 (direct award: user choice contracts).
(1) A contracting authority must take all reasonable steps to identify, and keep under review, in relation to a covered procurement any—
(a) conflicts of interest, or
(b) potential conflicts of interest.
(2) There is a conflict of interest in relation to a covered procurement if—
(a) a person acting for or on behalf of the contracting authority in relation to the procurement has a conflict of interest, or
(b) a Minister acting in relation to the procurement has a conflict of interest.
(3) A person who influences a decision made by or on behalf of a contracting authority in relation to a covered procurement is to be treated as acting in relation to the procurement.
(4) In this section—
“interest” includes a personal, professional or financial interest and may be direct or indirect;
“Minister” means—
a Minister of the Crown;
a member of the Welsh Government;
the First Minister, deputy First Minister or a Northern Ireland Minister;
“member of the Welsh Government” means a person referred to in section 45 of the Government of Wales Act 2006.
(1) A contracting authority must take all reasonable steps to ensure that a conflict of interest does not put a supplier at an unfair advantage or disadvantage in relation to a covered procurement.
(2) Reasonable steps may include requiring a supplier to take reasonable steps.
(3) Subsection (4) applies if a contracting authority considers that—
(a) a conflict of interest puts a supplier at an unfair advantage in relation to the award of a public contract, and
(b) either—
(i) the advantage cannot be avoided, or
(ii) the supplier will not take steps that the contracting authority considers are necessary in order to ensure it is not put at an unfair advantage.
(4) The contracting authority must in relation to the award—
(a) treat the supplier as an excluded supplier for the purpose of—
(i) assessing tenders under section 19 (competitive award), or
(ii) awarding a contract under section 41 or 43 (direct award), and
(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.
(5) In this section, “conflict of interest” has the meaning given in section 81.
(1) Before publishing a tender or transparency notice in relation to a covered procurement, a contracting authority must prepare a conflicts assessment in relation to the procurement.
(2) Before publishing a dynamic market notice in relation to the establishment of a dynamic market, a contracting authority must prepare a conflicts assessment in relation to the establishment.
(3) A conflicts assessment must include details of—
(a) conflicts or potential conflicts of interest identified in accordance with section 81 (duty to identify), and
(b) any steps the contracting authority has taken or will take for the purposes of section 82 (duty to mitigate).
(4) If a contracting authority is aware of circumstances that it considers are likely to cause a reasonable person to wrongly believe there to be a conflict or potential conflict of interest, a conflicts assessment must also include details of any steps the contracting authority has taken or will take to demonstrate that no such conflict or potential conflict exists.
(5) A contracting authority must—
(a) keep any conflicts assessment under review,
(b) revise the assessment as necessary, and
(c) when publishing any relevant notice, confirm that a conflicts assessment has been prepared and revised in accordance with this section.
(6) Subsection (5) does not apply after—
(a) a contracting authority has given notice of its decision not to award the contract (under section 55),
(b) a contract termination notice is published in relation to the procurement, or
(c) a dynamic market notice is published in relation to the market ceasing to operate.
(7) In the case of a contracting authority that is a private utility—
(a) the reference in this section to notice of a decision not to award a contract is a reference to the decision;
(b) the reference in this section to a contract termination notice being published in relation to a procurement is a reference to the contract being terminated;
(c) the reference in this section to a dynamic market notice being published in relation to a market ceasing to operate is a reference to the market ceasing to operate.
(8) In this section—
“conflict of interest” has the meaning given in section 81;
“relevant notice” means—
a tender notice,
a transparency notice,
a dynamic market notice in relation to the establishment of a dynamic market,
a contract details notice relating to a public contract, or
a contract change notice;
“terminated” is to be understood by reference to section 80(3).
(1) This Part provides for a Minister of the Crown, the Scottish Ministers and the Welsh Ministers to make provision for the protection of workers in relation to relevant outsourcing contracts (see section 83B).
(2) Accordingly, in this Part, “appropriate authority”—
(a) means—
(i) a Minister of the Crown,
(ii) the Scottish Ministers, or
(iii) the Welsh Ministers, and
(b) does not include a Northern Ireland department.
(3) In addition to the restrictions in section 113, a Minister of the Crown—
(a) may exercise a power under this Part for the purpose of regulating devolved Scottish authorities only in relation to joint or centralised procurement under a reserved procurement arrangement;
(b) may not exercise a power under this Part for the purpose of regulating joint or centralised procurement under a devolved Scottish procurement arrangement.
(4) The Scottish Ministers—
(a) may only exercise a power under this Part for the purpose of regulating—
(i) devolved Scottish authorities, or
(ii) procurement under a devolved Scottish procurement arrangement;
(b) may not exercise a power under this Part for the purpose of regulating—
(i) joint or centralised procurement under a reserved procurement arrangement, or
(ii) joint or centralised procurement under a devolved Welsh procurement arrangement.
(5) In addition to the restrictions in section 111, the Welsh Ministers—
(a) may exercise a power under this Part for the purpose of regulating devolved Scottish authorities only in relation to joint or centralised procurement under a devolved Welsh procurement arrangement;
(b) may not exercise a power under this Part for the purpose of regulating joint or centralised procurement under a devolved Scottish procurement arrangement.
(6) This Part does not apply in relation to—
(a) a private utility;
(b) a person referred to in regulation 4(1)(b) of the Utilities Contracts (Scotland) Regulations 2016 (S.S.I. 2016/49);
(c) a devolved Welsh authority listed in Schedule 1 of the Social Partnership and Public Procurement (Wales) Act 2023 (asc 1);
(d) procurement under a transferred Northern Ireland procurement arrangement, except to the extent that the procurement—
(i) is carried out by a devolved Scottish authority, and
(ii) is not joint or centralised;
(e) a transferred Northern Ireland authority, except in relation to—
(i) procurement under a reserved procurement arrangement,
(ii) procurement under a devolved Scottish procurement arrangement, or
(iii) procurement under a devolved Welsh procurement arrangement.
(7) For the purposes of this section, procurement under a procurement arrangement is “joint or centralised” if as part of that procurement arrangement a contract is to be awarded following a procedure or other selection process carried out—
(a) jointly by a devolved Scottish authority and another contracting authority which is not a devolved Scottish authority, or
(b) by a centralised procurement authority or equivalent body.
(1) In this Part, “relevant outsourcing contract” means a contract in relation to which conditions A to C are met.
(2) Condition A is met where the contract—
(a) is a public contract under this Act, or
(b) is a contract regulated by Scottish procurement legislation.
(3) Condition B is met where the contract—
(a) is a contract for the supply of services that include the performance of functions that are or have previously been performed by the contracting authority, or
(b) is—
(i) in the case of a public contract, a framework for the future award of a contract referred to in paragraph (a), or
(ii) in the case of a contract regulated by Scottish procurement legislation, a framework agreement the purpose of which is to establish the terms governing a contract referred to in paragraph (a).
(4) Condition C is met where the functions referred to in subsection (3)(a) are, or are expected to be, performed by individuals (“transferring workers”) who—
(a) in performing the functions, are employed by the supplier or a sub-contractor under a worker’s contract, and
(b) were employed by the contracting authority under a worker’s contract in performing functions of the same kind.
(5) For the purposes of this Part—
(a) “contract regulated by Scottish procurement legislation” means a contract the procurement of which by a devolved Scottish authority is regulated by Scottish procurement legislation;
(b) in relation to a contract regulated by Scottish procurement legislation—
(i) “contracting authority” means a devolved Scottish authority that is a contracting authority within the meaning of the relevant Scottish procurement legislation;
(ii) “framework agreement” has the same meaning as in the relevant Scottish procurement legislation;
(iii) “supplier” means an economic operator within the meaning of the relevant Scottish procurement legislation;
(iv) “the relevant Scottish procurement legislation” means the Scottish procurement legislation regulating the procurement of the contract.
83C Power to specify provision for inclusion in relevant outsourcing contracts
(1) An appropriate authority may by regulations specify provision to be included in a relevant outsourcing contract for the purpose of ensuring that—
(a) transferring workers of a specified description are treated no less favourably as workers of the supplier or a sub-contractor than they were as workers of the contracting authority, and
(b) workers of the supplier or a sub-contractor who are not transferring workers and are of a specified description are treated no less favourably than those transferring workers.
(2) In carrying out the procurement of a relevant outsourcing contract, the contracting authority must—
(a) take all reasonable steps to ensure that provision specified under subsection (1) is included in the contract;
(b) where provision specified under subsection (1) is included in the contract, take all reasonable steps to secure that such provision is complied with.
(3) Subsection (2) does not apply—
(a) where the contracting authority or the relevant outsourcing contract is of a specified description, or
(b) in specified circumstances.
(4) In this section, “specified” means specified in regulations made by an appropriate authority.
83D Code of practice on relevant outsourcing contracts
(1) An appropriate authority must prepare and publish a code of practice containing guidance to contracting authorities for the purpose of ensuring that, where a contracting authority carries out the procurement of a relevant outsourcing contract—
(a) transferring workers of a description specified in the code are treated no less favourably as workers of the supplier or a sub-contractor than they were as workers of the contracting authority, and
(b) workers of the supplier or a sub-contractor who are not transferring workers and are of a description specified in the code are treated no less favourably than those transferring workers.
(2) An appropriate authority—
(a) may amend or replace a code published by it under subsection (1), and
(b) must publish any amended or replacement code.
(3) A code published under subsection (1) or (2) must—
(a) in the case of a code published by a Minister of the Crown, be laid before Parliament;
(b) in the case of a code published by the Scottish Ministers, be laid before the Scottish Parliament;
(c) in the case of a code published by the Welsh Ministers, be laid before Senedd Cymru.
(4) In carrying out the procurement of a relevant outsourcing contract, the contracting authority must have regard to the code of practice for the time being published under subsection (1) or (2).
(5) This section does not require an appropriate authority to do anything which the authority does not have power to do (see section 83A and Part 11).
(1) In this Part—
“appropriate authority” has the meaning given in section 83A(2);
“contract regulated by Scottish procurement legislation” has the meaning given in section 83B(5)(a);
“relevant outsourcing contract” has the meaning given in section 83B;
“transferring worker”, in relation to a relevant outsourcing contract, has the meaning given in section 83B(4);
“worker” and “worker’s contract” have the same meaning as in the Employment Rights Act 1996 (see section 230 of that Act).
(2) For the purposes of this Part, in relation to a contract regulated by Scottish procurement legislation, “contracting authority”, “framework agreement”, “supplier” and “the relevant Scottish procurement legislation” have the meaning given in section 83B(5)(b).
(1) In this Part, a “regulated below-threshold contract” means a below-threshold contract which is not—
(a) an exempted contract,
(b) a concession contract, or
(c) a utilities contract.
(2) This Part does not apply in relation to procurement—
(a) by a school,
(b) by a transferred Northern Ireland authority, other than procurement under a reserved procurement arrangement or a devolved Welsh procurement arrangement, or
(c) under a transferred Northern Ireland procurement arrangement.
(1) If a contracting authority invites the submission of tenders in relation to the award of a regulated below-threshold contract, the authority may not restrict the submission of tenders by reference to an assessment of a supplier’s suitability to perform the contract.
(2) The reference to a supplier’s suitability to perform the contract includes a reference to a supplier’s—
(a) legal and financial capacity;
(b) technical ability.
(3) Subsection (1) does not apply in relation to a works contract if the contract has an estimated value of—
(a) in the case of a contract to be awarded by a central government authority, not less than £135,018, or
(b) otherwise, not less than £207,720.
(4) A Minister of the Crown may by regulations amend this section for the purpose of amending the financial thresholds.
(5) This section does not apply in relation to—
(a) the award of a contract by a devolved Welsh authority, unless it is awarded under a reserved procurement arrangement,
(b) the award of a contract under a devolved Welsh procurement arrangement, or
(c) the award of a contract in accordance with a framework.
86 Regulated below-threshold contracts: duty to consider small and medium-sized enterprises
(1) Before inviting the submission of tenders in relation to the award of a regulated below-threshold contract, a contracting authority must—
(a) have regard to the fact that small and medium-sized enterprises may face particular barriers in competing for a contract, and
(b) consider whether such barriers can be removed or reduced.
(2) Subsection (1) does not apply in relation to the award of a contract in accordance with a framework.
(1) A contracting authority may not advertise for the purpose of inviting tenders in relation to the award of a notifiable below-threshold contract without first publishing a below-threshold tender notice.
(2) Subsection (1) does not apply if a contracting authority advertises only for the purpose of inviting tenders from particular or pre-selected suppliers.
(3) As soon as reasonably practicable after entering into a notifiable below-threshold contract, a contracting authority must publish a contract details notice.
(4) A “notifiable below-threshold contract” is a regulated below-threshold contract with an estimated value of—
(a) in the case of a contract to be awarded by—
(i) a central government authority that is not a devolved Welsh authority, not less than £12,000;
(ii) a central government authority that is a devolved Welsh authority, not less than £30,000, or
(b) otherwise, not less than £30,000.
(5) A “below-threshold tender notice” is a notice setting out—
(a) that the contracting authority intends to award a contract, and
(b) any other information specified in regulations under section 95.
(6) Any time limits provided for in a below-threshold tender notice must be—
(a) reasonable, and
(b) the same for each supplier.
(7) A Minister of the Crown or the Welsh Ministers may by regulations amend this section for the purpose of amending the financial thresholds.
(1) The terms in subsections (2) to (5) are implied into every regulated below-threshold contract entered into by a contracting authority.
(2) Any sum due to be paid under the contract by the contracting authority must be paid before the end of the period of 30 days beginning with—
(a) the day on which an invoice is received by the contracting authority in respect of the sum, or
(b) if later, the day on which the sum first became due in accordance with the invoice.
(3) The term in subsection (2) does not apply if the contracting authority—
(a) considers the invoice invalid, or
(b) disputes the invoice.
(4) On receiving an invoice from a payee, the contracting authority must notify the payee without undue delay if—
(a) it considers the invoice invalid, or
(b) it disputes the invoice.
(5) A contracting authority may rely on a payment made by a third party to satisfy the term in subsection (2) only with the agreement of the payee.
(6) For the purposes of the terms in subsections (2) to (5), an invoice is valid if it sets out the minimum required information and meets any other requirement set out in the contract.
(7) The minimum required information is—
(a) the name of the invoicing party,
(b) a description of the goods, services or works supplied,
(c) the sum requested, and
(d) a unique identification number.
(8) The terms in subsections (2) to (5) are also implied into any contract that is wholly or substantially for the purpose of performing (or contributing to the performance of) all or any part of the contract referred to in subsection (1).
(9) But for the purpose of subsection (8), references in those terms to the contracting authority are to be read as references to the person to whom goods, services or works are supplied for the purpose of performing (or contributing to the performance of) all or any part of the contract referred to in subsection (1).
(10) Any term purporting to restrict or override the terms implied by this section is without effect.
(11) But nothing in this section prohibits the parties to a contract from agreeing that a sum due under the contract must be paid earlier than would be required by the term in subsection (2).
(12) A Minister of the Crown or the Welsh Ministers may by regulations amend this section for the purpose of changing the number of days referred to in subsection (2), but the number of days may not be more than 30 days.
(13) In this section—
(a) “payee” means the person due to be paid under the invoice concerned;
(b) a reference to a contracting authority receiving an invoice includes a reference to an invoice being delivered to an address specified in the contract for the purpose.
(1) In this Act, a “treaty state supplier” means a supplier that is entitled to the benefits of an international agreement specified in Schedule 9.
(2) But a supplier is a treaty state supplier only to the extent that it is entitled to the benefits of an international agreement specified in Schedule 9 in relation to the procurement being—
(a) carried out, or
(b) challenged.
(3) An appropriate authority may by regulations amend Schedule 9 for the purpose of—
(a) specifying an international agreement to which the United Kingdom is a signatory, or
(b) removing, or amending a reference to, an international agreement.
(4) In subsection (3)(a), the reference to being a signatory to an international agreement includes a reference to having—
(a) exchanged instruments, where the exchange constitutes the agreement;
(b) acceded to the agreement.
(5) In this Part a reference to a supplier being entitled to the benefits of a treaty includes a reference to a supplier being entitled by virtue of the place of origin of goods, services or works supplied.
(6) In this Act—
(a) a reference to a treaty state supplier does not include a reference to a supplier that is entitled to the benefits of an international agreement only by reference to the United Kingdom being party to that agreement;
(b) a reference to a state or territory being party to an agreement includes a reference to a state or territory being part of an organisation of states or territories that is party to an agreement.
(1) A contracting authority may not, in carrying out a procurement, discriminate against a treaty state supplier.
(2) A contracting authority discriminates against a treaty state supplier if it treats the supplier less favourably than it treats, or would treat, a United Kingdom supplier or other treaty state supplier because of—
(a) the supplier’s association with the supplier’s treaty state, or
(b) the supplier’s lack of association with—
(i) the United Kingdom, or
(ii) another treaty state.
(3) On a comparison of cases for the purposes of subsection (2), there must be no material difference between the circumstances relating to each case.
(4) In this section, a reference to a supplier’s association with a state includes a reference to the fact that the state is the place of origin of goods, services or works supplied by the supplier.
(5) In this section, a “treaty state” means a state, territory or organisation of states or territories that is party to an international agreement specified in Schedule 9, other than the United Kingdom.
(6) And, in subsection (2)(a), a treaty state is a supplier’s treaty state if the supplier is entitled to the benefits of such an international agreement by reference to that treaty state being party to the agreement.
(7) In this Act, “United Kingdom supplier” means a supplier that is—
(a) established in, or controlled or mainly funded from, the United Kingdom, a British Overseas Territory or a Crown Dependency, and
(b) is not a treaty state supplier.
91 Treaty state suppliers: non-discrimination in Scotland
(1) A Minister of the Crown or the Scottish Ministers may by regulations make provision for the purpose of ensuring that treaty state suppliers are not discriminated against in the carrying out of devolved procurements.
(2) Regulations under subsection (1) may only include provision that is equivalent to provision in—
(a) subsection (1), (2), (5) or (6) of section 89 (treaty state suppliers),
(b) section 90 (treaty state suppliers: non-discrimination), or
(c) Schedule 9 (specified international agreements).
(3) Regulations under subsection (1) may not be made unless a Minister of the Crown considers, or the Scottish Ministers consider, that the regulations are necessary in order to ratify or comply with an international agreement to which the United Kingdom is a signatory.
(4) In subsection (3), the reference to being a signatory to an international agreement includes a reference to having—
(a) exchanged instruments, where the exchange constitutes the agreement;
(b) acceded to the agreement.
(5) In this section—
(a) “devolved procurement” means procurement carried out by a devolved Scottish authority;
(b) a reference to discrimination is a reference to discrimination as defined in section 90.
(6) Regulations under subsection (1) may modify primary legislation (whenever passed).
(1) This section applies where there is, or has been, a dispute relating to procurement between the United Kingdom and another state, territory or organisation of states or territories in relation to an international agreement specified in Schedule 9.
(2) An appropriate authority or the Scottish Ministers may by regulations make such provision relating to procurement as the authority considers, or the Scottish Ministers consider, appropriate in consequence of the dispute.
(3) Any provision made by the Scottish Ministers under subsection (2) must relate to procurement—
(a) carried out by devolved Scottish authorities, or
(b) under devolved Scottish procurement arrangements.
(4) Regulations under this section may include provision modifying primary legislation, whenever passed (including this Act).
(5) In subsection (1), the reference to an international agreement specified in Schedule 9 does not include a reference to the Trade and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland, of the one part, and the European Union and the European Atomic Energy Community, of the other part, signed at Brussels and London on 30 December 2020.
(1) This section applies in relation to any contracting authority that considers that, in the coming financial year, it will pay more than £100 million under relevant contracts.
(2) A contracting authority must publish a pipeline notice before the end of the period of 56 days beginning with the first day of the financial year referred to in subsection (1).
(3) A “pipeline notice” means a notice setting out specified information about any public contract with an estimated value of more than £2 million in respect of which the contracting authority intends to publish a tender notice or transparency notice during the reporting period.
(4) In this section—
“financial year” means—
the period of twelve months beginning with the 1 April following the day on which this section comes into force, and
each successive period of 12 months;
“relevant contracts” means any contracts for the supply of goods, services or works to the contracting authority other than exempted contracts;
“reporting period” means the period of 18 months beginning with the first day of the financial year referred to in subsection (1);
“specified information” means information specified in regulations under section 95.
(5) A Minister of the Crown or the Welsh Ministers may by regulations amend this section for the purpose of changing the financial thresholds.
(6) This section does not apply to—
(a) private utilities, or
(b) a transferred Northern Ireland authority.
94 General exemptions from duties to publish or disclose information
(1) A contracting authority is not required to publish or otherwise disclose information under this Act if the authority is satisfied that—
(a) withholding the information from publication or other disclosure is necessary for the purpose of safeguarding national security, or
(b) the information is sensitive commercial information and there is an overriding public interest in its being withheld from publication or other disclosure.
(2) “Sensitive commercial information” is information which—
(a) constitutes a trade secret, or
(b) would be likely to prejudice the commercial interests of any person if it were published or otherwise disclosed.
(3) If a contracting authority withholds information under this section, the authority must publish or notify anyone to whom the information would otherwise be provided of—
(a) the fact that information is being withheld, and
(b) whether it is being withheld under subsection (1)(a) or (1)(b).
(4) A contracting authority is not required to publish or notify someone under subsection (3) if the authority is satisfied that it would be contrary to the interests of national security to do so.
95 Notices, documents and information: regulations and online system
(1) An appropriate authority may by regulations make provision about—
(a) the form and content of notices, documents or other information to be published or provided under this Act;
(b) how such notices or documents are, or information is, to be published, provided or revised.
(2) Regulations under subsection (1) may for example—
(a) require a notice or document to contain specified information;
(b) require publication on a specified online system.
(3) Regulations under subsection (1) may—
(a) make different provision for different kinds of notice, document or information;
(b) make different provision for the same kind of notice, document or information for different purposes.
See also section 122(3).
(4) A Minister of the Crown must make arrangements to establish and operate an online system for the purpose of publishing notices, documents and other information under this Act.
(5) An online system established or operated under subsection (4) must—
(a) make notices, documents and other information published under this Act available free of charge, and
(b) be accessible to people with disabilities.
(1) In carrying out a covered procurement, a contracting authority must so far as practicable—
(a) communicate with suppliers electronically, and
(b) take steps to ensure that suppliers participating in the procurement communicate electronically.
(2) In carrying out a covered procurement, a contracting authority may only use, or require the use of, electronic communication systems that are—
(a) free of charge and readily accessible to suppliers,
(b) generally available, or interoperable with other generally available systems, and
(c) accessible to people with disabilities.
(3) Subsection (2)(a) does not apply in relation to an electronic communications system used, or required to be used—
(a) after the award of the public contract, or
(b) in relation to a utilities dynamic market.
(4) This section does not apply if the contracting authority is satisfied that electronic communication, or the use of an electronic communication system meeting the requirements of subsection (2), poses a particular security risk in the circumstances.
(5) In this section, “electronic communication system” includes any electronic system used for the purpose of communication with suppliers.
(1) An appropriate authority may by regulations make provision requiring certain information to be shared in a particular way, including through a specified online system.
(2) Regulations under subsection (1) may require a contracting authority to—
(a) share information in a particular way, or
(b) take steps to ensure that suppliers participating in a procurement share information in a particular way.
(3) In this section, “information” means information shared under, or for a purpose relating to, this Act.
(1) A contracting authority must keep such records as the authority considers sufficient to explain a material decision made for the purpose of awarding or entering into a public contract.
(2) For the purposes of subsection (1), a decision is “material” if, under this Act, a contracting authority is required—
(a) to publish or provide a notice, document or other information in relation to the decision, or
(b) to make the decision.
(3) A contracting authority must keep records of any communication between the authority and a supplier that is made—
(a) in relation to the award or entry into of a public contract, and
(b) before the contract is entered into.
(4) A record under this section must be kept until—
(a) the day on which the contracting authority gives notice of a decision not to award the contract (see section 55), or
(b) the end of the period of three years beginning with the day on which the contract is entered into or, if the contract is awarded but not entered into, awarded.
(5) This section does not apply in relation to defence and security contracts.
(6) This section does not affect any other obligation under any enactment or rule of law by virtue of which a contracting authority must retain documents or keep records, including for a longer period.
(1) This Act does not authorise or require a disclosure of information that would contravene the data protection legislation (but in determining whether a disclosure would do so, take into account the powers conferred and the duties imposed by and under this Act).
(2) In this section “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
100 Duties under this Act enforceable in civil proceedings
(1) A contracting authority’s duty to comply with Parts 1 to 5, 7 and 8 is enforceable in civil proceedings under this Part.
(2) For the purposes of this Part, the duty is owed to any supplier that is—
(a) a United Kingdom supplier, or
(b) a treaty state supplier.
(3) Proceedings under this Part may be brought in the court by a supplier that—
(a) is a United Kingdom or treaty state supplier, and
(b) has suffered, or is at risk of suffering, loss or damage in consequence of a breach of the duty.
(4) See section 106 for time limits applicable in respect of claims under this Part.
(5) A contracting authority’s duty to comply with section 12(4) (requirement to have regard to barriers facing SMEs), or section 13(9) or 14(8) (requirement to have regard to procurement policy statements), is not enforceable in civil proceedings under this Part.
(6) A contracting authority’s duty to comply with section 90 (treaty state suppliers: non-discrimination) in relation to a procurement is not enforceable in civil proceedings under this Part, except in relation to a covered procurement.
(7) A supplier may not bring proceedings under this Part on the grounds that one or more of the following decisions of a Minister of the Crown was unlawful—
(a) a decision to enter a supplier’s name on the debarment list;
(b) a decision relating to the information included in an entry on the debarment list;
(c) a decision not to remove an entry from the debarment list, or revise information included in such an entry,
(see section 65 (debarment decisions: appeals)).
(8) This Part applies irrespective of section 2(2) and 21 of the Crown Proceedings Act 1947.
(9) In this Part—
“claimant”—
in relation to a claim in Northern Ireland, means plaintiff;
in relation to a claim in Scotland, means pursuer;
“the court” means—
in England and Wales, the High Court,
in Northern Ireland, the High Court, and
in Scotland, the Court of Session.
101 Automatic suspension of the entry into or modification of contracts
(1) A contracting authority may not enter into a public contract, or modify a public contract or a convertible contract, if during any applicable standstill period—
(a) proceedings under this Part are commenced in relation to the contract, and
(b) the contracting authority is notified of that fact.
(2) The court may lift or modify the restriction in subsection (1) by order under section 102.
(3) The restriction in subsection (1) does not apply if—
(a) the proceedings at first instance have been determined, discontinued or otherwise disposed of, and
(b) the court has not made an order to extend the restriction.
(4) In this section “convertible contract” has the meaning given in section 74.
(5) See sections 51 and 76 for provision about standstill periods.
(1) In proceedings under this Part, the court may make one or more of the following orders—
(a) an order lifting or modifying the restriction in section 101(1);
(b) an order extending the restriction or imposing a similar restriction;
(c) an order suspending the effect of any decision made or action taken by the contracting authority in carrying out the procurement;
(d) an order suspending the procurement or any part of it;
(e) an order suspending the entry into or performance of a contract;
(f) an order suspending the making of a modification of a contract or performance of a contract as modified.
(2) In considering whether to make an order under subsection (1), the court must have regard to—
(a) the public interest in, among other things—
(i) upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law;
(ii) avoiding delay in the supply of the goods, services or works provided for in the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services);
(b) the interests of suppliers, including whether damages are an adequate remedy for the claimant;
(c) any other matters that the court considers appropriate.
(3) An order under subsection (1) may not permit a contract to be entered into or modified before the end of any applicable standstill period (see sections 51 and 76).
(4) An order under subsection (1) may provide for undertakings or conditions.
(1) This section applies if the court is satisfied that a decision made, or action taken, by a contracting authority breached the duty referred to in section 100(1) and—
(a) the contract in relation to which the breach occurred has not been entered into, or
(b) where the breach occurred in relation to a modification of a contract, the modification has not yet been made.
(2) The court may make one or more of the following orders—
(a) an order setting aside the decision or action;
(b) an order requiring the contracting authority to take any action;
(c) an order for the award of damages;
(d) any other order that the court considers appropriate.
(1) This section applies if the court is satisfied that a decision made, or action taken, by a contracting authority breached the duty referred to in section 100(1) and—
(a) the contract in relation to which the breach occurred has already been entered into, or
(b) where the breach occurred in relation to a modification of a contract, the modification has already been made.
(2) The court—
(a) must, if a set aside condition in section 105 is met, make an order setting aside the contract or modification, and
(b) may, in any case, make an order for the award of damages.
(3) The duty in subsection (2)(a) does not apply if the court is satisfied that there is an overriding public interest in not setting aside the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services).
(4) In which case, the court may make an order reducing—
(a) the term of the contract;
(b) the goods, services or works to be supplied under the contract.
(5) In considering whether there is an overriding public interest in not setting aside a contract or modification, the court—
(a) may have regard to the financial consequences of setting aside the contract or modification only in exceptional circumstances, and
(b) must in any event disregard costs that are directly associated with—
(i) the contracting authority having to award another contract or enter into a contract to a different supplier,
(ii) a delay in the performance of the contract or the contract as modified, or
(iii) any legal obligations arising from setting aside the contract or modification.
(6) If a contract or modification is set aside, it is to be treated as without effect from the date of the order.
(7) An order setting aside a framework or modification of a framework may not operate to set aside contracts already awarded under the framework.
(8) An order setting aside or reducing the term of, or supplies under, a contract may make provision for restitution and other consequential or supplementary matters.
105 Post-contractual remedies: set aside conditions
(1) A set aside condition is met if the court is satisfied that the claimant was denied a proper opportunity to seek a remedy under section 103 (pre-contractual remedies) because—
(a) a required contract award notice was not published;
(b) the contract was entered into or modified before the end of any applicable standstill period (see sections 51 and 76);
(c) the contract was entered into or modified during a period of automatic suspension under section 101 or in breach of a court order;
(d) in the case of a contract of a kind described in section 51(3) (exceptions to mandatory standstill), the breach became apparent only on publication of a contract award notice;
(e) in the case of a modification under section 74, the breach became apparent only on publication of a contract change notice;
(f) the breach became apparent only after the contract was entered into or modified.
(2) Subsection (1)(d) does not apply if—
(a) the contract award notice provided for a standstill period, and
(b) the contract was not entered into before the end of that standstill period.
(3) Subsection (1)(e) does not apply if—
(a) the contract change notice provided for a standstill period, and
(b) the modification was not made before the end of that standstill period.
(4) References in this section to a notice not being published include references to a notice that, though published, did not provide accurate information in respect of the contract as entered into.
(1) A supplier must commence any specified set-aside proceedings before the earlier of—
(a) the end of the period of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim;
(b) the end of the period of six months beginning with the day the contract was entered into or modified.
(2) A supplier must commence any other proceedings under this Part before the end of the period of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim.
(3) The court may make an order extending a time limit referred to in subsection (1)(a) or (2) if it considers there to be a good reason for doing so.
(4) An order under subsection (3) may not permit proceedings to be commenced after—
(a) in the case of specified set-aside proceedings, the end of the period referred to in subsection (1)(b), and
(b) in any case, the end of the period of 3 months beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim.
(5) In this section, “specified set-aside proceedings” means proceedings under section 104(2) to—
(a) set aside a public contract in circumstances where the contracting authority did not publish a contract details notice in respect of the contract in accordance with section 53, or
(b) set aside a modification of a contract.
107 Part 9 proceedings and closed material procedure
Part 2 of the Justice and Security Act 2013 (disclosure of sensitive material) applies in relation to proceedings under this Part as if, in each of the following provisions, each reference to the Secretary of State included a reference to the Minister for the Cabinet Office—
(a) section 6(2)(a), (7) and (9)(a) and (c);
(b) section 7(4)(a);
(c) section 8(1)(a);
(d) section 11(3);
(e) section 12(2)(a) and (b).
(1) An appropriate authority may investigate a relevant contracting authority’s compliance with requirements of this Act.
(2) An appropriate authority conducting a procurement investigation may by notice require a relevant contracting authority—
(a) to provide such relevant documents as the appropriate authority may reasonably require for the purposes of the procurement investigation, in the form or manner specified in the notice;
(b) to give such other assistance in connection with the procurement investigation as is reasonable in the circumstances and is specified in the notice.
(3) The relevant contracting authority must comply with a notice under subsection (2) before the end of—
(a) the period specified in the notice (which must be at least 30 days beginning with the day on which the notice is given), or
(b) such longer period as the appropriate authority may agree to.
(4) The appropriate authority may publish the results of a procurement investigation, including any section 109 recommendation issued.
(5) In this section—
“procurement investigation” means an investigation under subsection (1);
“relevant contracting authority” means a contracting authority other than—
a Minister of the Crown or a government department;
the Welsh Ministers;
a Northern Ireland department;
the Corporate Officer of the House of Commons;
the Corporate Officer of the House of Lords;
the Senedd Commission;
the Northern Ireland Assembly Commission;
a private utility;
“relevant documents” means documents or other information that—
are specified or described in a notice under subsection (2), and
are in the possession or control of the relevant contracting authority to which the notice is given;
“section 109 recommendation” has the meaning given in section 109.
109 Recommendations 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.
(1) Where an appropriate authority has conducted a procurement investigation under section 108, the authority may publish guidance setting out what the authority considers to be the lessons of the matters considered in the procurement investigation for compliance with the requirements of this Act by contracting authorities generally.
(2) In considering how to comply with the requirements of this Act, a contracting authority must have regard to relevant guidance published under subsection (1).
(3) In subsection (2), the reference to relevant guidance is a reference to guidance that could, in light of Part 11, be addressed to the contracting authority.
111 Welsh Ministers: restrictions on the exercise of powers
(1) The Welsh Ministers may only exercise a power under this Act for the purpose of regulating—
(a) contracting authorities that are devolved Welsh authorities (within the meaning given in section 157A of the Government of Wales Act 2006),
(b) contracting authorities that—
(i) are not devolved Welsh authorities, but
(ii) for the purposes of this Act, are to be treated as devolved Welsh authorities, or
(c) procurement under a devolved Welsh procurement arrangement.
(2) A contracting authority that is a public undertaking or private utility is to be treated as a devolved Welsh authority for the purposes of this Act if—
(a) it operates wholly or mainly in relation to Wales, and
(b) its activities are wholly or mainly activities that do not relate to reserved matters.
(3) Otherwise, a contracting authority is to be treated as a devolved Welsh authority for the purposes of this Act if the authority’s functions—
(a) are exercisable wholly or mainly in relation to Wales, and
(b) are wholly or mainly functions that do not relate to reserved matters.
(4) Other than in this section and section 127 (commencement), a reference in this Act to a devolved Welsh authority includes a reference to an authority that is to be treated as a devolved Welsh authority for the purposes of this Act.
(5) Subsection (1) does not apply in relation to a power under sections 59 to 66 (debarment).
(6) In this section—
“reserved matters” has the meaning given in the Government of Wales Act 2006;
“Wales” has the meaning given in section 158 of the Government of Wales Act 2006 (when read by reference to section 157A(9) of that Act).
112 Northern Ireland department: restrictions on the exercise of powers
(1) A Northern Ireland department may only exercise a power under this Act for the purpose of regulating—
(a) contracting authorities that are transferred Northern Ireland authorities,
(b) contracting authorities that are public undertakings or private utilities that—
(i) are not transferred Northern Ireland authorities, but
(ii) for the purposes of this Act, are to be treated as transferred Northern Ireland authorities, or
(c) procurement under a transferred Northern Ireland procurement arrangement.
(2) For the purposes of this section, an authority is a “transferred Northern Ireland authority” if its functions—
(a) are exercisable only in or as regards Northern Ireland, and
(b) are wholly or mainly functions that do not relate to reserved or excepted matters (within the meaning given by the Northern Ireland Act 1998).
(3) A contracting authority that is a public undertaking or private utility is to be treated as a transferred Northern Ireland authority for the purposes of this Act if—
(a) it operates only in or as regards Northern Ireland, and
(b) its activities are wholly or mainly activities that do not relate to reserved or excepted matters.
(4) Other than in this section, a reference in this Act to a transferred Northern Ireland authority includes a reference to an authority that is to be treated as a transferred Northern Ireland authority for the purposes of this Act.
(5) Subsection (1) does not apply in relation to a power under sections 59 to 66 (debarment).
113 Minister of the Crown: restrictions on the exercise of powers
(1) A Minister of the Crown may exercise a power under this Act for the purpose of regulating a contracting authority that is a devolved Welsh authority only in relation to procurement under—
(a) a reserved procurement arrangement, or
(b) a transferred Northern Ireland procurement arrangement.
(2) Subsection (1) does not apply in relation to a power under section 67 (electronic invoicing) or 110 (guidance following procurement investigation).
(3) A Minister of the Crown may not make regulations under section 67 or section 125, or publish guidance under section 110, for the purpose of regulating a devolved Welsh authority without the consent of the Welsh Ministers, unless the regulations relate to, or the guidance relates to, procurement under—
(a) a reserved procurement arrangement, or
(b) a transferred Northern Ireland procurement arrangement.
(4) A Minister of the Crown may not make regulations under this Act for the purpose of regulating a transferred Northern Ireland authority without the consent of a Northern Ireland department, unless the regulations relate to procurement under—
(a) a reserved procurement arrangement, or
(b) a devolved Welsh procurement arrangement.
(5) A Minister of the Crown may not publish guidance under section 110 for the purpose of regulating a Northern Ireland department without the consent of a Northern Ireland department, unless the guidance relates to procurement under—
(a) a reserved procurement arrangement, or
(b) a devolved Welsh procurement arrangement.
(6) Subsections (1) and (4) do not apply in relation to a power under—
(a) sections 59 to 66 (debarment);
(b) section 89 (treaty state suppliers);
(c) section 91 (non-discrimination in Scotland);
(d) section 92 (trade disputes);
(e) section 125 (power to make consequential, etc, provision);
(f) section 127 (commencement).