Procurement Act 2023

Prospective

PART 3 U.K. General

Excluded matters U.K.

44 (1) In determining whether a mandatory exclusion ground applies to a supplier, the decision-maker must ignore any event that occurred before the five-year period ending with the date on which the determination is made.

This is subject to sub-paragraphs (2) to (4).

(2) In determining whether a mandatory exclusion ground listed in any of the following paragraphs applies to a supplier, sub-paragraph (1) applies whether the event occurred before or after the coming into force of this Schedule—

(a) paragraph 3 (terrorism offences);

(b) paragraph 12 or 17 (bribery);

(c) paragraph 14 (money laundering offences);

(d) paragraph 23, where the ground in that paragraph applies by virtue of an offence under section 1, 2 or 4 of the Modern Slavery Act 2015 (slavery and trafficking offences);

(e) paragraph 24, where the ground in that paragraph applies by virtue of an offence under section 1 or 4 of the Human Trafficking and Exploitation (Scotland) Act 2015 (slavery and trafficking offences);

(f) paragraph 25, where the ground in that paragraph applies by virtue of an offence under section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (slavery and trafficking offences);

(g) paragraph 27 or 28 (organised crime);

(h) paragraph 33 or 34, so far as relating to any offence that constitutes a mandatory exclusion ground listed in any of the paragraphs within paragraph (a) to (g) above (inchoate offences and corresponding offences outside the United Kingdom).

(3) In determining whether a mandatory exclusion ground listed in any of the following paragraphs applies to a supplier, the decision-maker must also ignore any event that occurred before the coming into force of this Schedule—

(a) paragraph 2 (corporate manslaughter or homicide);

(b) paragraph 4, 5, 6(a) or (c) to (e), 7(a) or (c) to (e), 8 to 11 or 13 (theft, robbery, burglary etc);

(c) paragraph 33 or 34, so far as relating to any offence that constitutes a mandatory exclusion ground listed in any of the paragraphs within paragraph (a) and (b) above (inchoate offences and corresponding offences outside the United Kingdom);

(d) paragraph 35 (threat to national security).

(4) In determining whether a mandatory exclusion ground listed in any of the following paragraphs applies to a supplier, the decision-maker must also ignore any event that occurred before the three-year period ending with the coming into force of this Schedule—

(a) paragraph 6(b) or 7(b) (blackmail);

(b) paragraph 15, 16 or 18 (fraud and fraudulent trading);

(c) paragraphs 19 to 22 (labour market offences);

(d) paragraph 23, where the ground in that paragraph applies by virtue of an offence under section 30 of the Modern Slavery Act 2015 (breach of orders under that Act);

(e) paragraph 24, where the ground in that paragraph applies by virtue of an offence under section 32 of the Human Trafficking and Exploitation (Scotland) Act 2015 (breach of orders under that Act);

(f) paragraph 25, where the ground in that paragraph applies by virtue of an offence under paragraph 16 of Schedule 3 to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (breach of orders under that Act);

(g) paragraph 26 (breach of labour market enforcement order);

(h) paragraphs 29 to 31 (tax offences);

(i) paragraph 32 (cartel offence);

(j) paragraph 33 or 34, so far as relating to any offence that constitutes a mandatory exclusion ground listed in any of the paragraphs within paragraphs (a) to (i) above;

(k) paragraphs 36 to 40 (tax misconduct);

(l) paragraph 41 (competition law infringements);

(m) paragraph 42 (equivalents to tax misconduct and competition law infringements outside the United Kingdom).

Commencement Information

I1 Sch. 6 para. 44 not in force at Royal Assent, see s. 127(2)

Definitions U.K.

45 In this Schedule—

• the “CMA” means the Competition and Markets Authority;

• “conduct” includes acts and omissions;

• “connected person”, in relation to a supplier, means any of the following—

  (a)

  a person with “significant control” over the supplier (within the meaning given by section 790C(2) of the Companies Act 2006 (“CA 2006”));

  (b)

  a director or shadow director of the supplier;

  (c)

  a parent undertaking or a subsidiary undertaking of the supplier;

  (d)

  a predecessor company;

  (e)

  any other person who it can reasonably be considered stands in an equivalent position in relation to the supplier as a person within paragraph (a) to (d);

  (f)

  any person with the right to exercise, or who actually exercises, significant influence or control over the supplier;

  (g)

  any person over which the supplier has the right to exercise, or actually exercises, significant influence or control;

• “court” includes a tribunal;

• “decision-maker”, in relation to a supplier, means a contracting authority or an appropriate authority that is considering whether a mandatory exclusion ground applies to the supplier;

• “director” has the meaning given in section 250 of CA 2006;

• “event” means a conviction, decision, ruling, failure or other event by virtue of which a mandatory exclusion ground would apply to a supplier;

• “HMRC” means His Majesty’s Revenue and Customs;

• “parent undertaking” and “subsidiary undertaking” have the meanings given in section 1162 of CA 2006;

• “predecessor company” means a company which—

  (a)

  became insolvent and ceased to trade,

  (b)

  before it ceased to trade, carried on the same or substantially the same business as the supplier,

  (c)

  has transferred all or substantially all of its assets to the supplier, and

  (d)

  had at least one director or shadow director who is or has been a director or shadow director of the supplier;

• “shadow director” has the meaning given in section 251 of CA 2006.

Commencement Information

I2 Sch. 6 para. 45 not in force at Royal Assent, see s. 127(2)