40 Qualifying utilities dynamic market notices: no duty to publish a tender notice
(1) The duty to publish a tender notice in section 21(1) does not apply in relation to the award of a contract by reference to suppliers’ membership of—
(a) a utilities dynamic market established by reference to a qualifying utilities dynamic market notice, or
(b) a part of such a market.
(2) A contracting authority must instead provide a tender notice to members of the market, or part of the market, for the purposes set out in section 21(1).
(3) A contracting authority may also provide a tender notice to suppliers that have applied for membership of the market, or part of the market, but have yet to be accepted or rejected.
(4) The reference in section 21(5) to a tender notice or associated tender documents includes a reference to a qualifying utilities dynamic market notice.
(5) Section 34(4) (duty to consider applications for membership) does not apply in relation to the award of a contract by reference to suppliers’ membership of—
(a) a utilities dynamic market established by reference to a qualifying utilities dynamic market notice, or
(b) a part of such a market.
(6) In this section, “a qualifying utilities dynamic market notice” means a dynamic market notice under section 39(2) (dynamic market notices) that—
(a) relates to the establishment of a utilities dynamic market, and
(b) sets out—
(i) that only members of the market will be notified of a future intention to award a contract by reference to suppliers’ membership of the market, and
(ii) any other information specified in regulations under section 95.
(7) In this Act, a reference to publication of a tender notice includes a reference to provision of a tender notice under subsection (2) or (3).
(1) If a direct award justification applies, a contracting authority may award a public contract directly—
(a) to a supplier that is not an excluded supplier, or
(b) in accordance with subsection (2).
(2) A contracting authority may award a contract to a supplier that is an excluded supplier if the contracting authority considers that there is an overriding public interest in awarding the contract to that supplier.
(3) 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 this section.
(4) Before awarding a contract to a supplier under this section, a contracting authority must consider whether the supplier is an excludable supplier.
(5) There is an overriding public interest in awarding a public contract to an excluded supplier if—
(a) it is necessary in order to construct, maintain or operate critical national infrastructure,
(b) it is necessary in order to ensure the proper functioning of a sector on which the defence, security or economic stability of the United Kingdom relies,
(c) failure to do so would prejudice the conduct of military or security operations, or the effective operation of the armed forces or intelligence services, or
(d) the contract is being awarded by reference to paragraph 13 of Schedule 5 (extreme and unavoidable urgency) and cannot be awarded to, or performed by, a supplier that is not an excluded supplier within the necessary time frame.
(6) The direct award justifications are set out in Schedule 5.
(7) In this section, “intelligence services” means the Security Service, the Secret Intelligence Service and the Government Communications Headquarters.
(1) If a Minister of the Crown considers it necessary, the Minister may by regulations provide that specified public contracts may be awarded under section 41 as if a direct award justification applies.
(2) In subsection (1), “necessary” means necessary to—
(a) protect human, animal or plant life or health, or
(b) protect public order or safety.
(3) Provision under subsection (1) may—
(a) specify contracts or classes of contract, or otherwise describe contracts by reference to purpose, subject-matter or contracting authority;
(b) include other conditions or limitations;
(c) confer a discretion.
(4) A Minister of the Crown must—
(a) keep regulations made under subsection (1) under review, and
(b) if the Minister considers that direct award under section 41 is no longer necessary, revoke the regulations.
(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).
(1) Before awarding a contract under section 41 or 43 a contracting authority must publish a transparency notice.
(2) A “transparency notice” means a notice setting out—
(a) that a contracting authority intends to award a contract directly, and
(b) any other information specified in regulations under section 95.
(3) This section does not apply in relation to the award of a contract under section 41 by virtue of paragraph 15 of Schedule 5 (direct award: user choice contracts).
(1) A contracting authority may award a public contract in accordance with a framework.
(2) A “framework” is a contract between a contracting authority and one or more suppliers that provides for the future award of contracts by a contracting authority to the supplier or suppliers.
(3) Unless subsection (4) applies, a framework may only provide for the future award of a public contract following a competitive selection process.
(4) A framework may provide for the future award of a public contract without competition between suppliers—
(a) in circumstances where only one supplier is party to the framework, or
(b) if the framework sets out—
(i) the core terms of the public contract, and
(ii) an objective mechanism for supplier selection.
(5) A framework must include the following information—
(a) a description of goods, services or works to be provided under contracts awarded in accordance with the framework;
(b) the price payable, or mechanism for determining the price payable, under such contracts;
(c) the estimated value of the framework;
(d) any selection process to be applied on the award of contracts;
(e) the term of the framework (see section 47);
(f) the contracting authorities entitled to award public contracts in accordance with the framework;
(g) whether the framework is awarded under an open framework (see section 49).
(6) A framework may not—
(a) permit the award of a public contract to an excluded supplier, or
(b) prevent a contracting authority from requesting additional information from suppliers before awarding a contract.
(7) A framework may provide for the charging of fees at a fixed percentage of the estimated value of any contract awarded to the supplier in accordance with the framework.
(8) This section does not apply in relation to the award of—
(a) a concession contract, or
(b) a framework.
(9) Subsections (3) to (5) do not apply to a framework that is a light touch contract (see section 9(5)).
(1) A competitive selection process may provide for conditions of participation only if the contracting authority is satisfied that the conditions are a proportionate means of ensuring that suppliers party to the framework have—
(a) the legal and financial capacity to perform the contract, or
(b) the technical ability to perform the contract.
(2) In this section, a “condition of participation” means a condition that a supplier must satisfy in order to be awarded a public contract in accordance with the framework.
(3) A condition set under subsection (1)(a) may not—
(a) require the submission of audited annual accounts, except from suppliers who are, or were, required to have the accounts audited in accordance with Part 16 of the Companies Act 2006 or an overseas equivalent;
(b) require insurance relating to the performance of the contract to be in place before the award of the contract.
(4) A condition set under subsection (1)(b) may relate to suppliers’ qualifications, experience or technical ability, but may not—
(a) require suppliers to have been awarded a contract under the framework or by a particular contracting authority,
(b) break the rules on technical specifications in section 56, or
(c) require particular qualifications without allowing for their equivalents.
(5) When considering whether a condition is proportionate for the purposes of subsection (1), a contracting authority must have regard to the nature, complexity and cost of the public contract.
(6) A condition of participation may require the provision of evidence that is verifiable by a person other than the supplier.
(7) If a supplier does not satisfy a condition of participation, the contracting authority may exclude the supplier from participating in, or progressing as part of, the competitive selection process.
(8) A competitive selection process may provide for the assessment of proposals, but only by reference to one or more of the award criteria against which tenders were assessed in awarding the framework.
(9) The award criteria may be refined for the purposes of subsection (8).
(10) In this section, a “competitive selection process” means a competitive selection process for the award of a public contract in accordance with a framework.
(11) This section does not apply to a framework that is a light touch contract.
(1) The term of a framework may not exceed—
(a) in the case of a defence and security framework or a utilities framework, eight years, and
(b) otherwise, four years.
(2) Subsection (1) does not apply if the contracting authority considers the nature of the goods, services or works to be supplied under contracts awarded in accordance with the framework means that a longer term is required.
(3) If a contracting authority relies on subsection (2) in awarding a framework with a term exceeding four or eight years, the contracting authority must set out its reasons in the tender or transparency notice for the framework.
(4) In this section—
(a) “a defence and security framework” is a framework which does not provide for the future award of public contracts other than defence and security contracts;
(b) “a utilities framework” is a framework which does not provide for the future award of public contracts other than utilities contracts.
(5) This section does not apply in relation to—
(a) a framework awarded under an open framework (see section 49),
(b) a framework awarded by a private utility, or
(c) a framework that is a light touch contract (see section 9(5)).
(1) It is an implied term of every framework that a contracting authority may exclude a supplier that is an excluded supplier or has, since the award of the framework, become an excludable supplier from participating in any selection process run in relation to the award of a contract under the framework.
(2) For the purposes of the term in subsection (1), the reference to a supplier becoming an excludable supplier includes a reference to—
(a) a supplier becoming an excludable supplier on the basis of a discretionary exclusion ground that—
(i) did not apply before award of the contract, or
(ii) applied before award of the contract by reference to different circumstances, and
(b) a contracting authority discovering that, before award of the contract, the supplier was an excludable supplier.
(3) Before excluding a supplier that is an excluded or excludable supplier only by virtue of an associated person, the contracting authority must give the supplier reasonable opportunity to replace the associated person.
(4) Any term purporting to restrict or override the term implied by subsection (1) is without effect.
(1) An “open framework” is a scheme of frameworks that provides for the award of successive frameworks on substantially the same terms.
(2) An open framework must provide—
(a) for the award of a framework at least once during—
(i) the period of three years beginning with the day of the award of the first framework in the scheme, and
(ii) each period of five years beginning with the day of the award of the second framework in the scheme;
(b) for the expiry of one framework on the award of the next (but see subsection (3));
(c) for the final framework to expire at the end of the period of eight years beginning with the day on which the first framework under the scheme is awarded.
(3) An open framework may provide that, if a framework expires in accordance with subsection (2)(b) while a process for the award of a contract in accordance with the framework is ongoing, the contracting authority may continue the process and award the contract as though the framework had not expired.
(4) If there is no limit on the number of suppliers that can be party to a framework under an open framework, a contracting authority may award the framework to an existing supplier by reference to—
(a) the fact that the supplier has already been awarded a framework under the scheme,
(b) a tender relating to an earlier award under the scheme, or
(c) a tender relating to the current award.
(5) Otherwise, a contracting authority may award a framework under an open framework to an existing supplier by reference to—
(a) a tender relating to an earlier award of a framework under the scheme, or
(b) a tender relating to the current award.
(6) If a framework under an open framework is awarded to only one supplier, the framework, and the open framework, must expire before the end of the period of four years beginning with the day on which the framework is awarded.
(7) Subsection (6) applies despite subsection (2)(c) and any term of the framework or open framework.
(8) In this section, an “existing supplier” means a supplier that is party to a framework under the open framework.
(9) A reference to an award on substantially the same terms is a reference to an award that could be made by reference to the same tender or transparency notice without substantial modification (see section 31).
(10) A framework under an open framework may not be awarded under section 41 (direct award in special cases) or 43 (switching to direct award).
50 Contract award notices and assessment summaries
(1) Before entering into a public contract, a contracting authority must publish a contract award notice.
(2) A “contract award notice” means a notice setting out—
(a) that the contracting authority intends to enter into a contract, and
(b) any other information specified in regulations under section 95.
(3) Before publishing a contract award notice in respect of a contract awarded under section 19 (award following competitive tendering procedure), a contracting authority must provide an assessment summary to each supplier that submitted an assessed tender.
(4) An “assessment summary” means, in relation to an assessed tender, information about the contracting authority’s assessment of—
(a) the tender, and
(b) if different, the most advantageous tender submitted in respect of the contract.
(5) In this section, an “assessed tender” is a tender which—
(a) was submitted in respect of the contract and assessed for the purposes of determining the most advantageous tender under section 19(1), and
(b) was not disregarded in the assessment of tenders.
(6) Subsection (1) does not apply in relation to—
(a) a defence and security contract awarded under a defence and security framework;
(b) a contract awarded under section 41 by reference to paragraph 15 of Schedule 5 (direct award: user choice contracts).
(1) A contracting authority may not enter into a public contract before—
(a) the end of the mandatory standstill period, or
(b) if later, the end of another standstill period provided for in the contract award notice.
(2) The “mandatory standstill period” is the period of eight working days beginning with the day on which a contract award notice is published in respect of the contract.
(3) Subsection (1) does not apply in relation to a contract that is—
(a) awarded under section 41 by reference to paragraph 13 of Schedule 5 (direct award: extreme and unavoidable urgency);
(b) awarded under section 41 by reference to regulations under section 42 (direct award to protect life, etc);
(c) awarded under section 41 or 43 (direct award and switching to direct award) by a private utility;
(d) awarded in accordance with a framework;
(e) awarded by reference to a dynamic market;
(f) a light touch contract.
(4) If a contract is of a kind described in subsection (3), a contracting authority may not enter into the contract before the end of any standstill period (a “voluntary standstill period”) provided for in the contract award notice.
(5) A voluntary standstill period may not be less than a period of eight working days beginning with the day on which the contract award notice is published.
(1) Before entering into a public contract with an estimated value of more than £5 million, a contracting authority must set at least three key performance indicators in respect of the contract.
(2) Subsection (1) does not apply if the contracting authority considers that the supplier’s performance under the contract could not appropriately be assessed by reference to key performance indicators.
(3) A contracting authority must publish any key performance indicators set under subsection (1).
(4) A “key performance indicator” is a factor or measure against which a supplier’s performance of a contract can be assessed during the life-cycle of the contract.
(5) An appropriate authority may by regulations amend this section for the purpose of changing the financial threshold.
(6) This section does not apply in relation to a public contract that is—
(a) a framework,
(b) a utilities contract awarded by a private utility,
(c) a concession contract, or
(d) a light touch contract.
(7) See section 71 for provision about assessing performance against, and publishing information about, key performance indicators.
53 Contract details notices and publication of contracts
(1) A contracting authority that enters into a public contract must publish a contract details notice—
(a) if the contract is a light touch contract, before the end of the period of 120 days beginning with the day on which the contract is entered into;
(b) otherwise, before the end of the period of 30 days beginning with the day on which the contract is entered into.
(2) A “contract details notice” means a notice setting out—
(a) that the contracting authority has entered into a contract, and
(b) any other information specified in regulations under section 95.
(3) A contracting authority that enters into a public contract with an estimated value of more than £5 million must publish a copy of the contract—
(a) if the contract is a light touch contract, before the end of the period of 180 days beginning with the day on which the contract is entered into;
(b) otherwise, before the end of the period of 90 days beginning with the day on which the contract is entered into.
(4) Subsection (3) does not apply in relation to a contract—
(a) awarded by a devolved Welsh authority or a transferred Northern Ireland authority, unless it is awarded under a reserved procurement arrangement, or
(b) awarded under a devolved Welsh procurement arrangement or a transferred Northern Ireland procurement arrangement.
(5) A Minister of the Crown may by regulations amend this section for the purpose of changing the financial threshold.
(6) 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) In setting time limits for the purposes of this Part, a contracting authority must, where relevant, have regard to—
(a) the nature and complexity of the contract being awarded;
(b) the need for site visits, physical inspections and other practical steps;
(c) the need for sub-contracting;
(d) the nature and complexity of any modification of the tender notice or any associated tender documents;
(e) the importance of avoiding unnecessary delay.
(2) Time limits set for the purposes of this Part must be the same for each supplier.
(3) A participation period set under this Part must equal or exceed the shortest minimum period specified in an entry in the second column of the following table that corresponds with an entry in the first column which applies to the circumstances of the case—
Circumstance | Minimum period
The contract being awarded is a light touch contract | No minimum period
The contracting authority considers there to be a state of urgency that means that a 25 day participation period is impractical | 10 days
Neither of the above circumstances apply | 25 days
(4) A tendering period set under this Part must equal or exceed the shortest minimum period specified in an entry in the second column of the following table that corresponds with an entry in the first column that applies to the circumstances of the case—
Circumstance | Minimum period
The contract being awarded is a light touch contract | No minimum period
The contract— being awarded is a utilities contract, or is being awarded by a contracting authority that is not a central government authority, and is subject to a negotiated tendering period | No minimum period
The contract— being awarded is a utilities contract, or is being awarded by a contracting authority that is not a central government authority, and tenders may be submitted only by preselected suppliers | 10 days
A qualifying planned procurement notice has been issued | 10 days
The contracting authority considers there to be a state of urgency that means any other applicable minimum tender period is impractical | 10 days
The contract being awarded is being awarded by reference to suppliers’ membership of a dynamic market | 10 days
Tenders may be submitted electronically, and the tender notice and associated tender documents are all provided at the same time | 25 days
Tenders may be submitted electronically, but the tender notice and associated tender documents are not all provided at the same time | 30 days
Tenders may not be submitted electronically, but the tender notice and associated tender documents are all provided at the same time | 30 days
Tenders may not be submitted electronically, and the tender notice and associated tender documents are not all provided at the same time | 35 days
(5) In this section—
“central government authority” has the meaning given in paragraph 5 of Schedule 1;
“negotiated tendering period” means a tendering period agreed between a contracting authority and pre-selected suppliers in circumstances where tenders may be submitted only by those pre-selected suppliers;
“qualifying planned procurement notice” has the meaning given in section 15;
“participation period” means the period beginning with the day following the day on which a contracting authority invites the submission of requests to participate in a competitive flexible procedure and ending with the day by which those requests must be submitted;
“pre-selected supplier” means a supplier that—
has been assessed as satisfying conditions of participation before being invited to submit a tender as part of a competitive tendering procedure, or
in the case of a contract that is being awarded by reference to suppliers’ membership of a dynamic market, is a member of that market;
“tendering period” means the period beginning with the day following the day on which a contracting authority invites the submission of tenders as part of a competitive tendering procedure and ending with the day by which tenders must be submitted.
(1) This section applies if, after publishing a tender or transparency notice in respect of a public contract, a contracting authority decides not to award the contract.
(2) As soon as reasonably practicable after making the decision, the contracting authority must give notice to that effect.
(3) This section does not apply to private utilities.
(1) This section applies in relation to—
(a) a competitive tendering procedure;
(b) an award of a public contract in accordance with a framework;
(c) a process to become a member of a dynamic market.
(2) The procurement documents may not refer to design, a particular licensing model or a description of characteristics in circumstances where they could appropriately refer to performance or functional requirements.
(3) The procurement documents may not refer to a United Kingdom standard unless—
(a) the standard adopts an internationally-recognised equivalent, or
(b) there is no internationally-recognised equivalent.
(4) If the procurement documents refer to a United Kingdom standard, they must provide that tenders, proposals or applications that the contracting authority considers satisfy an equivalent standard from another state, territory or organisation of states or territories will be treated as having satisfied the United Kingdom standard.
(5) In considering whether a standard is equivalent to a United Kingdom standard for the purposes of subsection (4), a contracting authority may have regard to the authority’s purpose in referring to the standard.
(6) A contracting authority may require certification, or other evidence, for the purpose of satisfying itself that a standard is satisfied or equivalent.
(7) Unless the contracting authority considers it necessary in order to make its requirements understood, the procurement documents may not refer to a particular—
(a) trademark, trade name, patent, design or type,
(b) place of origin, or
(c) producer or supplier.
(8) If the matters mentioned in subsection (7) are referred to, the procurement documents must also provide that tenders, proposals or applications demonstrating equivalent quality or performance will not be disadvantaged.
(9) In this section—
“procurement documents” means—
the tender notice or associated tender documents, including any requirements of a competitive tendering procedure, conditions of participation or award criteria;
documents inviting suppliers to participate in a competitive selection process under a framework, including details of the process, any conditions of participation or criteria for the award of the contract;
documents inviting suppliers to apply for membership of a dynamic market, including any conditions for membership;
“United Kingdom standard” means a standard that is—
set by the British Standards Institution, or
primarily developed for use in the United Kingdom, or part of the United Kingdom.
(1) A supplier is an “excluded supplier” if—
(a) the contracting authority considers that—
(i) a mandatory exclusion ground applies to the supplier or an associated person, and
(ii) the circumstances giving rise to the application of the exclusion ground are continuing or likely to occur again, or
(b) the supplier or an associated person is on the debarment list by virtue of a mandatory exclusion ground.
(2) A supplier is an “excludable supplier” if—
(a) the contracting authority considers that—
(i) a discretionary exclusion ground applies to the supplier or an associated person, and
(ii) the circumstances giving rise to the application of the exclusion ground are continuing or likely to occur again, or
(b) the supplier or an associated person is on the debarment list by virtue of a discretionary exclusion ground.
(3) If a supplier is an excluded supplier on the basis of the supplier or an associated person being on the debarment list only by virtue of paragraph 35 of Schedule 6 (threat to national security), the supplier is to be treated as an excluded supplier only in relation to public contracts of a kind described in the relevant entry.
(4) For the purposes of a covered procurement carried out by a private utility—
(a) an excluded supplier is to be regarded as an excludable supplier, and
(b) a reference in this Act to an excludable supplier includes a reference to such an excluded supplier.
(5) In this Act “debarment list” means the list kept under section 62.
(6) The mandatory exclusion grounds are set out in Schedule 6.
(7) The discretionary exclusion grounds are set out in Schedule 7.
58 Considering whether a supplier is excluded or excludable
(1) In considering, for the purposes of section 57(1)(a) or (2)(a), whether the circumstances giving rise to the application of an exclusion ground are continuing or likely to occur again, a contracting authority may have regard to the following matters—
(a) evidence that the supplier, associated person or connected person has taken the circumstances seriously, for example by paying compensation;
(b) steps that the supplier, associated person or connected person has taken to prevent the circumstances continuing or occurring again, for example by changing staff or management, or putting procedures and training in place;
(c) commitments that such steps will be taken, or to provide information or access to allow verification or monitoring of such steps;
(d) the time that has elapsed since the circumstances last occurred;
(e) any other evidence, explanation or factor that the authority considers appropriate.
(2) Before determining whether a supplier is an excluded supplier under section 57(1)(a) or an excludable supplier under section 57(2)(a), a contracting authority must give the supplier reasonable opportunity to—
(a) make representations, and
(b) provide evidence as to whether exclusion grounds apply and whether the circumstances giving rise to any application are likely to occur again (including information of a kind referred to in subsection (1)).
(3) But a contracting authority may not require particular evidence or information unless the authority is satisfied that the requirements are proportionate in the circumstances, having regard to—
(a) the nature and complexity of the matters being assessed, and
(b) where relevant, the preliminary nature of a consideration under section 27(3).
(1) This section applies where—
(a) a contracting authority—
(i) has disregarded a tender from an excluded or excludable supplier under section 26 or 28,
(ii) has excluded an excluded or excludable supplier from participating in, or progressing as part of, a competitive tendering procedure under section 27 or 28,
(iii) is aware of an associated person or sub-contractor having been replaced under section 26(3), 27(4) or 28(5) (replacing an excluded or excludable associated person or sub-contractor),
(iv) has rejected an application from a supplier for membership of a dynamic market on the basis that the supplier is an excluded or excludable supplier (see section 36), or
(v) has removed an excluded or excludable supplier from a dynamic market under section 37, and
(b) the supplier was an excluded or excludable supplier—
(i) under section 57(1)(a) or (2)(a) by virtue of a relevant exclusion ground, or
(ii) on the basis of being on the debarment list by virtue of paragraph 35 of Schedule 6 (threat to national security).
(2) The contracting authority must, before the end of the period of 30 days beginning with the day on which the tender was disregarded or the supplier excluded, replaced or removed, give notice of that fact to the relevant appropriate authority.
(3) A notice under subsection (2) must set out—
(a) any relevant exclusion ground that the authority considers applies to the supplier, and
(b) any other information specified in regulations under section 95.
(4) If any proceedings under Part 9 are brought in respect of the disregard, exclusion, replacement or removal, the contracting authority must give notice to the relevant appropriate authority of—
(a) the commencement of those proceedings or any appeal proceedings;
(b) the outcome of any proceedings within paragraph (a).
(5) Notice under subsection (4)(a) or (b) must be given before the end of the period of 30 days beginning with the day the proceedings concerned are commenced or determined.
(6) In this section—
“exclusion ground” means a mandatory exclusion ground or a discretionary exclusion ground;
“relevant exclusion ground” means any exclusion ground except the one listed in paragraph 43 of Schedule 6 (failure to cooperate with investigation);
“relevant appropriate authority” means—
if the contracting authority is a devolved Welsh authority, the Welsh Ministers;
if the contracting authority is a transferred Northern Ireland authority, the Northern Ireland department that the contracting authority considers it most appropriate to notify;
in any other case, a Minister of the Crown.
(1) An appropriate authority may, for the purpose of considering whether an entry could be added to the debarment list in respect of a supplier, investigate whether a supplier is, by virtue of the application to the supplier of a relevant exclusion ground—
(a) an excluded supplier under section 57(1)(a), or
(b) an excludable supplier under section 57(2)(a).
(2) A Minister of the Crown must—
(a) have regard to the fact that contracting authorities may be unknowingly awarding public contracts to suppliers that—
(i) could be excludable suppliers by virtue of paragraph 14 of Schedule 7 (threat to national security), or
(ii) are sub-contracting to suppliers that could be excludable suppliers by virtue of that paragraph, and
(b) in light of that fact, keep under review whether particular suppliers or sub-contractors should be investigated under this section.
(3) If an appropriate authority decides to investigate under this section, the authority must give the supplier concerned a notice setting out—
(a) the relevant exclusion grounds in respect of which the investigation is being conducted,
(b) how and when the supplier may make representations to the appropriate authority, and
(c) any other information specified in regulations under section 95.
(4) The appropriate authority may by notice require a contracting authority—
(a) to provide such relevant documents as the appropriate authority may reasonably require for the purposes of the investigation, in the form or manner specified in the notice;
(b) to give such other assistance in connection with the investigation as is reasonable in the circumstances and is specified in the notice.
(5) A contracting authority must comply with a notice under subsection (4) before the end of the period specified in the notice.
(6) The appropriate authority may by notice request that the supplier concerned, or a connected person in relation to the supplier—
(a) provide such relevant documents as the appropriate authority may reasonably require for the purposes of the investigation, in the form or manner, and before the end of the period, specified in the notice;
(b) give such other assistance in connection with the investigation as is reasonable in the circumstances and is specified in the notice, before the end of the period so specified.
(7) A notice under subsection (6) must set out the potential consequences for the supplier of non-compliance with the request (see paragraph 43 of Schedule 6).
(8) In this section—
“relevant documents” means documents or other information that—
are specified or described in a notice under subsection (4) or (6), and
are in the possession or control of the recipient of the notice;
“relevant exclusion ground” has the meaning given in section 59.
(1) This section applies where an appropriate authority has conducted an investigation under section 60.
(2) The Welsh Ministers or a Northern Ireland department—
(a) may refer the case to a Minister of the Crown for the Minister’s consideration for the purposes of section 62(1), and
(b) if they do so, must provide the Minister with all information relevant to their findings.
(3) A Minister of the Crown who has conducted, or considered the findings of, an investigation must—
(a) prepare a report in relation to the findings of the investigation,
(b) give a copy to the supplier concerned as soon as reasonably practicable after the report is prepared, and
(c) publish it.
Paragraphs (b) and (c) are subject to subsection (5).
(4) The report must, in particular, set out whether the Minister is satisfied that the supplier is, by virtue of a relevant exclusion ground, an excluded or excludable supplier, and if the Minister is so satisfied—
(a) in respect of each applicable relevant exclusion ground—
(i) whether it is a mandatory or discretionary ground,
(ii) the date on which the Minister expects the ground to cease to apply (see paragraph 44 of Schedule 6 and paragraph 15 of Schedule 7), and
(iii) whether the Minister intends to make an entry to the debarment list,
(b) in respect of the exclusion ground in paragraph 35 of Schedule 6 (if applicable), the description of contracts in relation to which the Minister—
(i) is satisfied the ground applies, and
(ii) intends to refer to in a relevant entry in the debarment list, and
(c) in each case, the Minister’s reasons.
(5) If the Minister considers it necessary to do so for a purpose mentioned in subsection (6), the Minister may—
(a) remove information from a report before publishing it or giving it to the supplier concerned;
(b) decide not to publish the report;
(c) decide not to give the report to the supplier;
(d) disclose the report only to such persons as the Minister considers appropriate.
(6) The purposes are—
(a) safeguarding national security;
(b) preventing the publication of information that is sensitive commercial information where there is an overriding public interest in it being withheld from publication or other disclosure.
(7) In this section—
“relevant exclusion ground” has the meaning given by section 59;
“sensitive commercial information” has the meaning given by section 94.
(1) Subsection (3) applies where a Minister of the Crown—
(a) has conducted an investigation under section 60 or considered the findings of such an investigation conducted by the Welsh Ministers or a Northern Ireland department, and
(b) is satisfied that the supplier is, by virtue of the application of a relevant exclusion ground, an excluded or excludable supplier.
(2) Subsection (3) also applies where a Minister of the Crown has made a determination as mentioned in paragraph 43 of Schedule 6 in relation to a supplier (mandatory exclusion ground for failing to cooperate with investigation).
(3) The Minister may enter the supplier’s name on a list kept by a Minister of the Crown for the purposes of this section and, as part of that entry, must include the relevant debarment information.
(4) In this section, the “relevant debarment information” means—
(a) the exclusion ground to which the entry relates;
(b) whether the exclusion ground is mandatory or discretionary;
(c) in the case of an entry made on the basis of paragraph 35 of Schedule 6 (threat to national security), a description of the contracts in relation to which the supplier is to be an excluded supplier;
(d) the date on which the Minister expects the exclusion ground to cease to apply (see paragraph 44 of Schedule 6 and paragraph 15 of Schedule 7).
(5) Before entering a supplier’s name on the debarment list, the Minister must give notice to the supplier setting out—
(a) the decision to do so,
(b) an explanation of the supplier’s rights under sections 63 to 65, and
(c) any other information specified in regulations under section 95.
(6) The Minister may not enter a supplier’s name on the debarment list before the end of the period of eight working days beginning with the day on which the Minister gives notice to the supplier in accordance with subsection (5) (the “debarment standstill period”).
(7) The Minister may not enter a supplier’s name on the debarment list if—
(a) during the debarment standstill period—
(i) proceedings under section 63(1) (interim relief) are commenced, and
(ii) the Minister is notified of that fact, and
(b) the proceedings have not been determined, discontinued or otherwise disposed of.
(8) A Minister of the Crown—
(a) must keep the debarment list under review,
(b) may remove an entry from the debarment list,
(c) in the case of an entry added on the basis of paragraph 35 of Schedule 6 (threat to national security), may revise an entry to remove a description of contracts, and
(d) may revise a date indicated under subsection (4)(d).
(9) If a Minister of the Crown voluntarily removes or revises an entry in connection with proceedings under section 65 (debarment decisions: appeals), a Minister of the Crown may reinstate the entry only after the proceedings have been determined, discontinued or otherwise disposed of.
(10) A Minister of the Crown must—
(a) remove an entry if the Minister is satisfied that the supplier is not an excluded or excludable supplier by virtue of the ground stated in the entry;
(b) in the case of an entry added on the basis of paragraph 35 of Schedule 6 (threat to national security), revise the entry to remove a description of contracts if the Minister is satisfied the exclusion ground in that paragraph does not apply in relation to contracts of that description.
(11) A Minister of the Crown must publish the debarment list (including any amended list).
(12) A Minister of the Crown must consult the Welsh Ministers and the Northern Ireland department that the Minister considers most appropriate before—
(a) entering a supplier’s name on the debarment list, or
(b) removing or revising an entry pursuant to an application under section 64.
(13) In this section, “relevant exclusion ground” has the meaning given by section 59.
(1) A supplier may apply to the court for suspension of the Minister’s decision to enter the supplier’s name on the debarment list.
(2) Proceedings under subsection (1) must be brought during the debarment standstill period.
(3) The court may make an order to—
(a) suspend the Minister’s decision to enter the supplier’s name on the debarment list until—
(i) the period referred to in subsection (2)(c) of section 65 (appeals) ends without proceedings having been brought, or
(ii) proceedings under that section are determined, discontinued or otherwise disposed of, and
(b) if relevant, require that an entry in respect of the supplier be temporarily removed from the debarment list.
(4) In considering whether to make an order under subsection (3), the court must have regard to—
(a) the public interest in, among other things, ensuring that public contracts are not awarded to suppliers that pose a risk,
(b) the interest of the supplier, including in relation to the likely financial impact of not suspending the decision, and
(c) any other matters that the court considers appropriate.
(5) In this section—
“the court” means—
in England and Wales, the High Court,
in Northern Ireland, the High Court, and
in Scotland, the Court of Session;
“debarment standstill period” has the meaning given in subsection (6) of section 62 (debarment list).
(1) A supplier may at any time apply to a Minister of the Crown for the removal or revision of an entry made on the debarment list in respect of the supplier.
(2) The Minister is only required to consider such an application if—
(a) in the opinion of the Minister, there has been a material change of circumstances—
(i) since the entry was made or, where relevant, revised, or
(ii) in a case where the supplier has made a previous application under subsection (1) in relation to the entry or, where relevant, revision, since the most recent application that was considered by the Minister was made, or
(b) the application is otherwise accompanied by significant information that has not previously been considered by a Minister of the Crown.
(3) After considering an application under subsection (1), the Minister must—
(a) notify the supplier of the Minister’s decision, and
(b) give reasons for the decision.
(1) A supplier may appeal to the court against a decision of a Minister of the Crown—
(a) to enter the supplier’s name on the debarment list,
(b) to indicate contracts of a particular description as part of an entry made in respect of the supplier on the basis of paragraph 35 of Schedule 6 (threat to national security),
(c) to indicate a particular date as part of an entry in respect of the supplier under section 62(4)(d), or
(d) not to remove or revise an entry made in respect of the supplier following an application under section 64 (application for removal).
(2) Proceedings under subsection (1)—
(a) may only be brought by a United Kingdom supplier or a treaty state supplier,
(b) may only be brought on the grounds that, in making the decision, the Minister made a material mistake of law, and
(c) must be commenced 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 Minister’s decision.
(3) Subsection (4) applies if, in proceedings under subsection (1)(a) or (b), the court is satisfied that—
(a) the Minister made a material mistake of law, and
(b) in consequence of the mistake, a contracting authority excluded the supplier from participating in a competitive tendering procedure, or other selection process, in reliance on section 57(1)(b) or (2)(b).
(4) The court may make one or more of the following orders—
(a) an order setting aside the Minister’s decision;
(b) an order to compensate the supplier for any costs incurred by the supplier in relation to participating in the procedure or process referred to in subsection (3)(b).
(5) Otherwise, if the court is satisfied that the Minister made a material mistake of law, the court may make an order setting aside the Minister’s decision.
(6) In this section—
“the court” has the meaning given in section 63 (interim relief);
the reference to a supplier being excluded includes a reference to—
the supplier’s tender being disregarded under section 26;
the supplier becoming an excluded supplier for the purposes of section 41(1)(a), 43(1) or 45(6)(a).
66 Debarment proceedings and closed material procedure
Part 2 of the Justice and Security Act 2013 (disclosure of sensitive material) applies in relation to proceedings under sections 63(1) (interim relief) and 65 (appeals) 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) The term set out in subsection (2) is implied into every public contract entered into by a contracting authority.
(2) The contracting authority must accept and process for payment any electronic invoice issued to the authority for payment under the contract which is—
(a) in the required electronic form, and
(b) not disputed by the authority.
(3) For the purposes of the term in subsection (2)—
“electronic invoice” means an invoice which is issued, transmitted and received in a structured electronic format that allows for its automatic and electronic processing;
“required electronic form” means a form that—
complies with the standard for electronic invoicing approved and issued by the British Standards Institution in the document numbered BS EN 16931-1:2017 (Electronic invoicing - Part 1: Semantic data model of the core elements of an electronic invoice), and
uses a syntax which is listed as a syntax that complies with that standard in the document numbered PD CEN/TS 16931-2:2017 (Electronic invoicing - Part 2: List of syntaxes that comply with EN 16931-1) approved and issued by the British Standards Institution.
(4) A reference to a standard or document is a reference to the standard or document as it stands—
(a) on the day that the contract is entered into, or
(b) if the parties agree, on the day on which the invoice is issued.
(5) Any term purporting to restrict or override the implied term is of no effect.
(6) The implied term does not prevent a contracting authority—
(a) requiring the use of a particular system in relation to electronic invoices;
(b) in the case of a defence authority (as defined in section 7(5)), requiring the use of a system that requires the payment of fees by the supplier.
(7) An appropriate authority may by regulations amend this section for the purpose of changing what it means for an invoice to be in the required electronic form.
(8) Before making regulations under subsection (7), an appropriate authority must consult such persons as the authority considers appropriate.
(1) The terms in subsections (2) to (5) are implied into every public contract entered into by a contracting authority, except a public contract that is—
(a) a concession contract,
(b) a utilities contract awarded by a private utility, or
(c) a contract awarded by a school.
(2) Any sum due to be paid under the public 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 payment falls 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) Any term purporting to restrict or override the terms implied by this section is without effect.
(7) 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).
(8) For the purposes of the terms in subsections (2) to (5), an invoice is valid if—
(a) it is an electronic invoice issued in the required electronic form, or
(b) it sets out the minimum required information and meets any other requirement set out in the contract.
(9) 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.
(10) An appropriate authority may by regulations amend this section for the purpose of changing the period within which a sum due under a contract must be paid, but the period may not exceed 30 days.
(11) In this section—
“electronic invoice” and “required electronic form” have the meanings given in section 67(3);
“payee” means the person due to be paid under the invoice concerned;
a reference to a contracting authority receiving an invoice includes a reference to an invoice being delivered to an address, or through an electronic invoicing system, specified in the contract for the purpose.
(1) Before the end of the period of 30 days beginning with the last day of a reporting period, a contracting authority must publish a payments compliance notice if during that period—
(a) the authority made a payment under a public contract;
(b) a sum owed by the authority under a public contract became payable.
(2) A “payments compliance notice” means a notice setting out—
(a) specified information about the contracting authority’s compliance with the term set out in section 68(2) (payment within 30 days), and
(b) any other specified information.
(3) For the purposes of this section, a reporting period is—
(a) the period beginning with the day on which this section comes into force and ending with the 31 March or 30 September following that day, whichever is earlier, and
(b) each successive period of six months.
(4) A Minister of the Crown or the Welsh Ministers may by regulations make provision about the preparation of a payments compliance notice, including provision requiring that the notice must be approved by a person of a description specified in the regulations.
(5) In subsection (2), “specified information” means information specified in regulations under section 95.
(6) This section does not apply—
(a) to a transferred Northern Ireland authority,
(b) to private utilities,
(c) in relation to a public contract awarded by a school, or
(d) in relation to a concession contract.
70 Information about payments under public contracts
(1) A contracting authority must publish specified information about any payment of more than £30,000 made by the authority under a public contract.
(2) The information must be published before the end of the period of 30 days beginning with the last day of the quarter in which the payment was made.
(3) A Minister of the Crown or the Welsh Ministers may by regulations amend this section for the purpose of changing—
(a) the financial threshold;
(b) the time limit for publication.
(4) This section does not apply in relation to a public contract that is—
(a) a utilities contract awarded by a private utility,
(b) a concession contract,
(c) awarded by a school,
(d) awarded by a transferred Northern Ireland authority, unless it is awarded as part of a procurement under a reserved procurement arrangement or devolved Welsh procurement arrangement, or
(e) awarded as part of a procurement under a transferred Northern Ireland procurement arrangement.
(5) In this section—
“quarter” means a period of three months ending with 31 March, 30 June, 30 September or 31 December in any year;
“specified information” means information specified in regulations under section 95.
(1) Subsection (2) applies where a contracting authority has set key performance indicators in accordance with section 52(1).
(2) At least once in every period of twelve months during the life-cycle of the contract and on termination of the contract the contracting authority must —
(a) assess performance against the key performance indicators, and
(b) publish information specified in regulations under section 95 in relation to that assessment.
(3) Subsection (5) applies if—
(a) a supplier has breached a public contract, and
(b) the breach results in—
(i) termination (or partial termination) of the contract,
(ii) the award of damages, or
(iii) a settlement agreement between the supplier and the contracting authority.
(4) Subsection (5) also applies if a contracting authority considers that a supplier—
(a) is not performing a public contract to the authority’s satisfaction,
(b) has been given proper opportunity to improve performance, and
(c) has failed to do so.
(5) Before the end of the period of 30 days beginning with the day on which this subsection first applies in relation to a particular breach or failure to perform, the contracting authority concerned must publish the following information—
(a) that this subsection applies,
(b) the circumstances giving rise to its application, and
(c) any other information specified in regulations under section 95.
(6) Subsection (5) does not apply in relation to a light touch contract.
(7) This section does not apply to private utilities.
(1) This section applies in relation to a supplier if—
(a) a contracting authority, as a condition of awarding a public contract, required that the supplier sub-contract the supply of certain goods, services or works to another supplier, or
(b) the supplier—
(i) indicated to a contracting authority that it intended to sub-contract all or part of a public contract to another supplier, and
(ii) relied on that other supplier to satisfy any conditions of participation (see section 22(8)).
(2) The contracting authority may direct that the supplier enter into a legally binding arrangement with the other supplier for the purpose of that supplier performing all or part of the contract (as required or indicated).
(3) If a supplier fails to enter into a legally binding arrangement as directed by the contracting authority, the contracting authority may—
(a) choose not to enter into the contract with the supplier,
(b) where subsection (1)(b) applies, direct the supplier to enter into a legally binding arrangement with another appropriate supplier, or
(c) if the contract has already been entered into, terminate the contract.
(4) In subsection (3), an “appropriate supplier” means a supplier that—
(a) is not an excluded supplier, and
(b) could have been relied on in place of the supplier referred to in subsection (1)(b)(ii).
(5) In subsection (1)(a), the reference to a condition of award includes, in the case of a direct award, any condition attaching to the award of a contract.
(6) For the purposes of subsection (1), a supplier is not to be treated as having relied on another supplier to satisfy conditions of participation if the conditions were satisfied by the first supplier alone.
(1) The terms in subsections (2) to (5) of section 68 (implied payment terms in public contracts) are implied into every public sub-contract.
(2) But for the purposes of subsection (1)—
(a) 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 under the public sub-contract, and
(b) section 68(8)(a) (electronic invoices) does not apply.
(3) Any term purporting to restrict or override the terms implied by this section is without effect.
(4) But nothing in this section prohibits the parties to a public sub-contract from agreeing that a sum due under the contract must be paid earlier than would be required by the term in section 68(2).
(5) In this section, “public sub-contract” means a contract substantially for the purpose of performing (or contributing to the performance of) all or any part of a public contract.
(6) This section does not apply in relation to a public sub-contract that is for the purpose of performing (or contributing to the performance of) all or any part of—
(a) a concession contract,
(b) a utilities contract awarded by a private utility, or
(c) a contract awarded by a school.
(1) A contracting authority may modify a public contract or a contract that, as a result of the modification, will become a public contract (a “convertible contract”) if the modification—
(a) is a permitted modification under Schedule 8 (permitted modifications),
(b) is not a substantial modification, or
(c) is a below-threshold modification.
(2) A contracting authority may also modify a public contract or a convertible contract if the contract is a light touch contract.
(3) A “substantial modification” is a modification which would—
(a) increase or decrease the term of the contract by more than 10 per cent of the maximum term provided for on award,
(b) materially change the scope of the contract, or
(c) materially change the economic balance of the contract in favour of the supplier.
(4) A modification is a “below-threshold modification” if—
(a) the modification would not itself increase or decrease the estimated value of the contract by more than—
(i) in the case of a contract for goods or services, 10 per cent;
(ii) in the case of a contract for works, 15 per cent,
(b) the aggregated value of below-threshold modifications would be less than the threshold amount for the type of contract,
(c) the modification would not materially change the scope of the contract, and
(d) the modification is not within subsection (1)(a) or (b).
(5) In this section, a reference to a modification changing the scope of a contract is a reference to a modification providing for the supply of goods, services or works of a kind not already provided for in the contract.
(6) For the purposes of subsection (4), the “aggregated value of below-threshold modifications” is the amount of the estimated value of the contract after modification that is attributable to below-threshold modifications.
(7) Subsection (8) applies if, on modifying a public contract under this section, a contracting authority considers that—
(a) the modification could reasonably have been made together with another modification made to the contract under this section, and
(b) that single modification would not have been permitted under subsection (1).
(8) The modification is to be treated as not within subsection (1).
(9) Except as provided for in paragraph 9 of Schedule 8 (modification permitted on corporate restructuring), a contracting authority may not modify a public contract so as to change the supplier.
(10) Part 3 does not apply in relation to a contract to modify a contract where the modification is made in accordance with this section.
(1) Before modifying a public contract or a convertible contract (see section 74(1)), a contracting authority must publish a contract change notice.
(2) Subsection (1) does not apply if—
(a) the modification increases or decreases the estimated value of the contract by—
(i) in the case of a contract for goods or services, 10 per cent or less,
(ii) in the case of a contract for works, 15 per cent or less, or
(b) the modification increases or decreases the term of the contract by 10 per cent or less of the maximum term provided for on award,
unless the modification is a permitted modification under paragraph 9 of Schedule 8 (novation or assignment on corporate restructuring).
(3) A “contract change notice” is a notice setting out—
(a) that the contracting authority intends to modify the contract;
(b) any other information specified in regulations under section 95.
(4) Subsection (5) applies if, on making a modification within subsection (2)(a) or (2)(b), a contracting authority considers that—
(a) the modification could reasonably have been made together with an earlier modification of the contract, and
(b) subsection (1) would have applied to that single modification.
(5) Subsection (1) is to be treated as applying to the modification.
(6) This section does not apply in relation to a modification of a contract that—
(a) is a defence and security contract,
(b) is a light touch contract,
(c) was awarded by a private utility,
(d) was awarded by a transferred Northern Ireland authority, unless it was awarded as part of a procurement under a reserved procurement arrangement or a devolved Welsh procurement arrangement, or
(e) was awarded as part of a procurement under a transferred Northern Ireland procurement arrangement.
(7) A Minister of the Crown or the Welsh Ministers may by regulations amend this section for the purpose of changing the percentage thresholds.
76 Voluntary standstill period on the modification of contracts
(1) A contracting authority may not modify a public contract or a convertible contract before the end of any standstill period (“a voluntary standstill period”) provided for in a contract change notice in respect of the contract.
(2) A voluntary standstill period may not be less than a period of eight working days beginning with the day on which the contract change notice is published.
(1) Before the end of the period of 90 days beginning with the day on which a contracting authority makes a qualifying modification under section 74(1), the authority must publish a copy of—
(a) the contract as modified, or
(b) the modification.
(2) A “qualifying modification” is a modification—
(a) in respect of which the contracting authority is required to publish a contract change notice under section 75, and
(b) which modifies, or results in, a public contract with an estimated value of more than £5 million.
(3) Subsection (1) does not apply in relation to a modification of a contract that—
(a) was awarded by a devolved Welsh authority, unless it was awarded as part of a procurement under a reserved procurement arrangement, or
(b) was awarded as part of a procurement under a devolved Welsh procurement arrangement.
(4) A Minister of the Crown may by regulations amend this section for the purpose of changing the financial threshold.
(1) It is an implied term of every public contract that the contract can, if a termination ground applies, be terminated by the contracting authority in accordance with this section.
(2) Each of the following circumstances is a termination ground—
(a) the contracting authority considers that the contract was awarded or modified in material breach of this Act or regulations made under it;
(b) a supplier has, since the award of the contract, become an excluded supplier or excludable supplier (including by reference to an associated person);
(c) a supplier (other than an associated person) to which the supplier is sub-contracting the performance of all or part of the public contract is an excluded or excludable supplier.
(3) The termination ground in subsection (2)(c) is not available unless—
(a) the contracting authority requested information under section 28(1)(a) (information about sub-contractors) in relation to the award of the public contract, and
(b) subsection (4), (5) or (6) applies.
(4) This subsection applies if, before awarding the public contract, the contracting authority did not know the supplier intended to sub-contract the performance of all or part of the contract.
(5) This subsection applies if—
(a) the sub-contractor is an excluded or excludable supplier under section 57(1)(b) or (2)(b) (the debarment list), and
(b) before awarding the contract the contracting authority—
(i) sought to determine whether that was the case in accordance with section 28(1)(b), but
(ii) did not know that it was.
(6) This subsection applies if—
(a) the sub-contractor is an excluded or excludable supplier under section 57(1)(a) or (2)(a),
(b) the contracting authority requested information about the sub-contractor under section 28(2), and
(c) before awarding the contract, the contracting authority did not know that the sub-contractor was an excluded or excludable supplier.
(7) Before terminating a contract by reference to the term implied by subsection (1), a contracting authority must—
(a) notify the supplier of its intention to terminate,
(b) specify which termination ground applies and why the authority has decided to terminate the contract,
(c) give the supplier reasonable opportunity to make representations about—
(i) whether a termination ground applies, and
(ii) the authority’s decision to terminate.
(8) Before terminating a contract by reference to the fact that a supplier to which the supplier is sub-contracting is an excluded or excludable supplier (whether under subsection (2)(b) or (c)), a contracting authority must give the supplier reasonable opportunity to—
(a) cease sub-contracting to the excluded or excludable supplier, and
(b) if necessary, find an alternative supplier to which to sub-contract.
(9) A public contract may contain provision about restitution and other matters ancillary to the termination of the contract by reference to the term implied by subsection (1).
(10) But any term purporting to restrict or override the implied term is without effect.
(11) In subsection (2)(b), the reference to a supplier becoming an excludable supplier includes a reference to—
(a) a supplier becoming an excludable supplier on the basis of a discretionary exclusion ground that—
(i) did not apply before award of the contract, or
(ii) applied before award of the contract by reference to different circumstances, and
(b) a contracting authority discovering that, before award of the contract, the supplier was an excludable supplier.
(12) In this section, “material breach” means a breach that the contracting authority considers could reasonably result in a successful legal challenge under Part 9 or otherwise.
79 Terminating public contracts: national security
(1) A relevant contracting authority may not terminate a contract by reference to the implied term in section 78 on the basis of the discretionary exclusion ground in paragraph 14 of Schedule 7 (threat to national security) unless—
(a) the authority has notified a Minister of the Crown of its intention, and
(b) the Minister considers that—
(i) the supplier or sub-contractor is an excludable supplier by reference to paragraph 14 of Schedule 7, and
(ii) the contract should be terminated.
(2) A relevant contracting authority may not terminate a contract by reference to the implied term in section 78 on the basis of the mandatory exclusion ground in paragraph 35 of Schedule 6 (threat to national security) unless the authority has notified a Minister of the Crown of its intention.
(3) In this section, a “relevant contracting authority” means a contracting authority other than—
(a) a Minister of the Crown or a government department,
(b) the Corporate Officer of the House of Commons, or
(c) the Corporate Officer of the House of Lords.