Procurement Act 2023

Prospective

Terms of a procurement U.K.

19 Award of public contracts following a competitive tendering procedure U.K.

(1) A contracting authority may award a public contract to the supplier that submits the most advantageous tender in a competitive tendering procedure.

(2) The “most advantageous tender” is the tender that the contracting authority considers—

(a) satisfies the contracting authority’s requirements, and

(b) best satisfies the award criteria when assessed by reference to—

(i) the assessment methodology under section 23(3)(a), and

(ii) if there is more than one criterion, the relative importance of the criteria under section 23(3)(b).

(3) In assessing tenders for the purposes of this section a contracting authority—

(a) must disregard any tender from a supplier that does not satisfy the conditions of participation;

(b) may disregard any tender from a supplier that—

(i) is not a United Kingdom supplier or treaty state supplier, or

(ii) intends to sub-contract the performance of all or part of the contract to a supplier that is not a United Kingdom supplier or treaty state supplier;

(c) may disregard any tender that offers a price that the contracting authority considers to be abnormally low for performance of the contract;

(d) may disregard any tender which breaches a procedural requirement set out in the tender notice or associated tender documents.

(4) Before disregarding a tender under subsection (3)(c) (abnormally low price), a contracting authority must—

(a) notify the supplier that the authority considers the price to be abnormally low, and

(b) give the supplier reasonable opportunity to demonstrate that it will be able to perform the contract for the price offered.

(5) If the supplier demonstrates to the contracting authority’s satisfaction that it will be able to perform the contract for the price offered, the authority may not disregard the tender under subsection (3)(c) (abnormally low price).

(6) The reference to a tender breaching a procedural requirement includes a reference to a supplier breaching a procedural requirement in relation to the tender.

(7) In this Act, a reference to a contracting authority’s requirements is a reference to requirements described in the tender notice or associated tender documents (see section 21(5) and (6)).

(8) See sections 26 and 28 for provision about disregarding tenders from suppliers that are excluded or excludable suppliers or that are sub-contracting to excluded or excludable suppliers.

(9) See sections 32 and 33 for provision about reserving public contracts to supported employment providers and qualifying public service mutuals.

(10) See section 34 for provision about disregarding tenders from suppliers that are not members of a dynamic market.

(11) In this section “procedural requirement” includes a requirement that a supplier provide information.

Commencement Information

I1 S. 19 not in force at Royal Assent, see s. 127(2)

20 Competitive tendering procedures U.K.

(1) Before awarding a public contract under section 19, a contracting authority must carry out a competitive tendering procedure in accordance with a tender notice and any associated tender documents.

(2) A “competitive tendering procedure” is—

(a) a single-stage tendering procedure without a restriction on who can submit tenders (an “open procedure”), or

(b) such other competitive tendering procedure as the contracting authority considers appropriate for the purpose of awarding the public contract (a “competitive flexible procedure”).

(3) A contracting authority must ensure that the procedure is a proportionate means of awarding the public contract, having regard to the nature, complexity and cost of the contract.

(4) A competitive flexible procedure—

(a) may limit the number of participating suppliers, generally or in respect of particular tendering rounds or other selection processes;

(b) may provide for the refinement of award criteria in accordance with section 24;

(c) may not permit the participation of suppliers that did not submit a tender in the first round of tendering or that were excluded following an earlier round.

(5) A competitive flexible procedure may provide for the exclusion of suppliers—

(a) by reference to conditions of participation (see section 22);

(b) by reference to an intermediate assessment of tenders;

(c) that are not United Kingdom suppliers or treaty state suppliers;

(d) that intend to sub-contract the performance of all or part of the contract to a supplier that is not a United Kingdom supplier or treaty state supplier.

(6) The reference in subsection (5)(b) to an intermediate assessment of tenders is a reference to an assessment of which tenders—

(a) satisfy the contracting authority’s requirements, and

(b) best satisfy the award criteria at the point of exclusion, when assessed by reference to—

(i) the assessment methodology under section 23(3)(a), and

(ii) if there is more than one criterion, the relative importance of the criteria under section 23(3)(b),

in each case, at the point of assessment.

(7) A competitive tendering procedure may, if a contract is being awarded by reference to lots, limit the number of lots in respect of which any one supplier can submit a tender.

(8) See sections 27, 28 and 30 for provision about excluding suppliers that are excluded or excludable suppliers, that are sub-contracting to excluded or excludable suppliers or for improper behaviour.

(9) See sections 32 and 33 for provision about reserving public contracts to sheltered employment providers and qualifying mutual societies.

(10) See section 34 for provision about excluding suppliers that are not members of a dynamic market.

Commencement Information

I2 S. 20 not in force at Royal Assent, see s. 127(2)

21 Tender notices and associated tender documents U.K.

(1) A contracting authority must publish a tender notice for the purpose of—

(a) inviting suppliers to submit a tender as part of an open procedure, or

(b) in the case of a competitive flexible procedure—

(i) inviting suppliers to submit a request to participate in the procedure, or

(ii) where no such invitation is made, inviting suppliers to submit their first, or only, tender as part of the procedure.

(2) A “tender notice” means a notice setting out—

(a) that a contracting authority intends to award a public contract under section 19, and

(b) any other information specified in regulations under section 95.

(3) A contracting authority must provide any associated tender documents in accordance with the tender notice.

(4) “Associated tender document” means, in relation to a tender notice, a document setting out information specified in regulations under section 95 that supplements that set out in the tender notice.

(5) A contracting authority may not invite suppliers to submit a tender as part of a competitive tendering procedure unless it is satisfied that the tender notice or associated tender documents contain—

(a) information sufficient to allow suppliers to prepare such a tender, and

(b) in particular, details of the goods, services or works required by the contracting authority.

(6) In detailing its requirements, a contracting authority must be satisfied that they—

(a) are sufficiently clear and specific, and

(b) do not break the rules on technical specifications in section 56.

(7) See section 40 for an exception to the duty in subsection (1) for contracts awarded by reference to suppliers’ membership of certain utilities dynamic markets.

Commencement Information

I3 S. 21 not in force at Royal Assent, see s. 127(2)

22 Conditions of participation U.K.

(1) A contracting authority may set conditions of participation in relation to the award of a public contract under section 19 only if it is satisfied that the conditions are a proportionate means of ensuring that suppliers have—

(a) the legal and financial capacity to perform the contract, or

(b) the technical ability to perform the contract.

(2) A “condition of participation” is a condition that a supplier must satisfy if the supplier is to be awarded the public contract.

(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 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 tendering procedure.

(8) A supplier is to be treated as satisfying a condition of participation to the extent that a supplier associated with the supplier satisfies the condition.

(9) For the purposes of this section, a supplier is associated with another supplier if—

(a) the suppliers are submitting a tender together, or

(b) the contracting authority is satisfied that the suppliers will enter into legally binding arrangements to the effect that—

(i) the supplier will sub-contract the performance of all or part of the contract to the other, or

(ii) the other supplier will guarantee the performance of all or part of the contract by the supplier.

Commencement Information

I4 S. 22 not in force at Royal Assent, see s. 127(2)

23 Award criteria U.K.

(1) In this Act, “award criteria” means criteria set in accordance with this section against which tenders may be assessed for the purpose of awarding a public contract under section 19 (award following competitive tendering procedure).

(2) In setting award criteria, a contracting authority must be satisfied that they—

(a) relate to the subject-matter of the contract,

(b) are sufficiently clear, measurable and specific,

(c) do not break the rules on technical specifications in section 56, and

(d) are a proportionate means of assessing tenders, having regard to the nature, complexity and cost of the contract.

(3) In setting award criteria, a contracting authority must—

(a) describe how tenders are to be assessed by reference to them and, in particular, specify whether failure to meet one or more criteria would disqualify a tender (the “assessment methodology”), and

(b) if there is more than one criterion, indicate their relative importance by—

(i) weighting each as representing a percentage of total importance,

(ii) ranking them in order of importance, or

(iii) describing it in another way.

(4) In setting award criteria for the assessment of tenders by reference to lots, a contracting authority—

(a) may limit the number of lots that may be awarded to any one supplier, and

(b) in doing so, must provide an objective mechanism for supplier selection in circumstances where a supplier would otherwise exceed the limit.

(5) In subsection (2), the reference to the subject-matter of a contract includes a reference to—

(a) the goods, services or works to be supplied under the contract, including in respect of any aspect of their production, trading or other stage in their life-cycle;

(b) how or when those goods, services or works are to be supplied;

(c) the qualifications, experience, ability, management or organisation of staff where those factors are likely to make a material difference to the quality of goods, services or works being supplied;

(d) price, other costs or value for money in all the circumstances.

(6) In the case of a light touch contract, the reference to the subject-matter of the contract also includes a reference to—

(a) the views of an individual for whose benefit the services are to be supplied (a “service recipient”), or of a person providing care to a service recipient, in relation to—

(i) who should supply the services, and

(ii) how and when they should be supplied;

(b) the different needs of different service recipients;

(c) the importance of proximity between the supplier and service recipients for the effective and efficient supply of the services.

Commencement Information

I5 S. 23 not in force at Royal Assent, see s. 127(2)

24 Refining award criteria U.K.

(1) A contracting authority may refine an award criterion as part of a competitive flexible procedure if—

(a) the tender notice or associated tender documents provide for the refinement of the criterion, and

(b) the authority is yet to invite suppliers to submit tenders to be assessed under section 19 (award following competitive tendering procedure).

(2) A contracting authority may, in consequence of refining an award criterion under subsection (1), refine the indication of the relative importance of the award criteria under section 23(3)(b).

(3) A contracting authority may not make a refinement under this section if it would result in award criteria that would, had the refinement been made earlier, have allowed one or more suppliers that did not progress beyond an earlier round or selection process to have done so.

(4) A contracting authority must modify and republish or provide again the tender notice and any associated tender documents affected by refinements under this section.

Commencement Information

I6 S. 24 not in force at Royal Assent, see s. 127(2)

25 Sub-contracting specifications U.K.

(1) Subsection (2) applies if a contracting authority considers that the authority could award a contract for the supply of certain goods, services or works to a particular supplier under section 41 (direct award in special cases).

(2) In awarding a contract that is wholly or partly for the supply of those goods, services or works under section 19 (award following competitive tendering procedure), the contracting authority may require that a supplier sub-contracts the supply of those goods, services or works to the particular supplier.

Commencement Information

I7 S. 25 not in force at Royal Assent, see s. 127(2)