Prospective
(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.
Commencement Information
I1S. 41 not in force at Royal Assent, see s. 127(2)
(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.
Commencement Information
I2S. 42 not in force at Royal Assent, see s. 127(2)
(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).
Commencement Information
I3S. 43 not in force at Royal Assent, see s. 127(2)
(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).
Commencement Information
I4S. 44 not in force at Royal Assent, see s. 127(2)