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The Defence and Security Public Contracts Regulations 2011

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The Defence and Security Public Contracts Regulations 2011, Section 23 is up to date with all changes known to be in force on or before 14 May 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Criteria for the rejection of economic operatorsU.K.

This section has no associated Explanatory Memorandum

23.—(1) Subject to paragraph (2), a contracting authority shall treat as ineligible and shall not select an economic operator in accordance with these Regulations if the contracting authority has actual knowledge that the economic operator or its directors or any other person who has powers of representation, decision or control of the economic operator has been convicted of any of the following offences—

(a)conspiracy within the meaning of section 1 or 1A of the Criminal Law Act 1977 M1 or article 9 or 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 M2, or in Scotland the offence of conspiracy, where that conspiracy relates to participation in a criminal organisation as defined in Article 2 of the Council Framework Decision 2008/841/JHA M3;

(b)involvement in serious organised crime or directing serious organised crime within the meaning of section 28 or 30 of the Criminal Justice and Licensing (Scotland) Act 2010 M4;

(c)corruption within the meaning of section 1 of the Public Bodies Corrupt Practices Act 1889 M5 or section 1 of the Prevention of Corruption Act 1906 M6;

(d)the offence of bribery;

(e)bribery within the meaning of section 1, 2 or 6 of the Bribery Act 2010 M7;

(f)bribery or corruption within the meaning of section 68 and 69 of the Criminal Justice (Scotland) Act 2003 M8;

F1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Framework Decision 2002/475/JHA M9;

(i)money laundering within the meaning of the Money Laundering Regulations 2003 M10 or money laundering or terrorist financing within the meaning of the Money Laundering Regulations 2007 M11 [F2or of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017];

(j)an offence in connection with the proceeds of criminal conduct within the meaning of section 93A, 93B or 93C of the Criminal Justice Act 1988 M12 or article 45, 46 or 47 of the Proceeds of Crime (Northern Ireland) Order 1996 M13;

(k)an offence in connection with proceeds of drug trafficking within the meaning of section 49, 50 or 51 of the Drug Trafficking Act 1994 M14;

(l)in Scotland, the offence of incitement to commit any of the crimes described in this paragraph; or

(m)any other offence within the meaning of Article [F339(1)(a), (b), (d), or (e)] of the Defence and Security Procurement Directive as defined by [F4the law of any part of the United Kingdom or of Gibraltar].

(2) In any case where an economic operator or its directors or any other person who has powers of representation, decision or control has been convicted of an offence described in paragraph (1), a contracting authority may disregard the prohibition described there if it is satisfied that there are overriding requirements in the general interest which justify doing so in relation to that economic operator.

(3) A contracting authority may apply to the relevant competent authority to obtain further information regarding the economic operator and in particular details of convictions of the offences listed in paragraph (1) if it considers it needs such information to decide on any exclusion referred to in that paragraph.

(4) A contracting authority may treat an economic operator as ineligible or decide not to select an economic operator in accordance with these Regulations on one or more of the following grounds, namely that the economic operator—

(a)being an individual is a person in respect of whom a debt relief order has been made or is bankrupt or has had a receiving order or administration order or bankruptcy restrictions order or debt relief restrictions order made against him or has made any composition or arrangement with or for the benefit of creditors or has made any conveyance or assignment for the benefit of creditors or appears unable to pay, or to have no reasonable prospect of being able to pay, a debt within the meaning of section 268 of the Insolvency Act 1986 M15, or article 242 of the Insolvency (Northern Ireland) Order 1989 M16, or in Scotland has granted a trust deed for creditors or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of his estate, or is the subject of any similar procedure under the law of any other State;

(b)being a partnership constituted under Scots law has granted a trust deed or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of its estate;

(c)being a company or any other entity within the meaning of section 255 of the Enterprise Act 2002 M17 has passed a resolution or is the subject of an order by the court for the company's winding up otherwise than for the purpose of bona fide reconstruction or amalgamation, or has had a receiver, manager or administrator on behalf of a creditor appointed in respect of the company's business or any part of the company's business or is the subject of the above procedures or is the subject of similar procedures under the law of any other State;

(d)has been convicted of a criminal offence relating to the conduct of the economic operator's business or profession;

(e)has committed an act of grave misconduct in the course of the economic operator's business or profession, including a breach of obligations regarding security of information or security of supply required by a contracting authority in accordance with regulation 38 or 39 during a previous contract;

(f)has been found, on the basis of any evidence, including protected data sources, not to possess the reliability necessary to exclude risks to the security of the United Kingdom;

(g)has not fulfilled obligations relating to the payment of social security contributions under the law of any part of the United Kingdom or of [F5Gibraltar];

(h)has not fulfilled obligations relating to the payment of taxes under the law of any part of the United Kingdom or of [F6Gibraltar];

(i)is guilty of serious misrepresentation in providing any information referred to within this regulation or regulation 24, [F725 or 26] or has not provided such information in response to a request by the contracting authority;

(j)in relation to procedures for the award of a services contract, is not licensed in the [F8United Kingdom or Gibraltar] or is not a member of an organisation [F9in the United Kingdom or Gibraltar] when the law [F10of the relevant part of the United Kingdom or, as the case may be, of Gibraltar] prohibits the provision of the services to be provided under the contract by a person who is not so licensed or who is not such a member; or

[F11(k)is not—

(i)certified, by the Registrar of Companies in the United Kingdom or Gibraltar, as incorporated; or

(ii)certified as having declared on oath that it is carrying on business in the trade in question in the United Kingdom, or in Gibraltar, at a specific place of business and under a specific trading name.]

(5) The contracting authority may require an economic operator to provide such information as it considers it needs to make the evaluation in accordance with paragraphs (1) and (4) except that it shall accept as conclusive evidence that an economic operator does not fall within the ground specified in paragraphs (1) or (4)(a), (b), (c), (d), (g) or (h) if that economic operator provides to the contracting authority—

(a)in relation to a ground specified in paragraphs (1) and (4)(a), (b), (c) or (d)—

(i)an extract from the judicial record; or

(ii)[F12where such a judicial record is not maintained in respect of the relevant place], a document issued by the relevant judicial or administrative authority;

(b)in relation to the ground specified in paragraph (4)(g) or (h), a certificate issued by the relevant competent authority; and

(c)F13... where the documentary evidence specified in paragraphs (5)(a) and (b) is not issued [F14in respect of the relevant place] in relation to one of the grounds specified in paragraphs (1), (4)(a), (b), (c), (d), (g) or (h), a declaration on oath made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths.

[F15(6) In this regulation—

“relevant”, in relation to a judicial, administrative or competent authority, notary public or Commissioner for oaths means an authority designated in respect of the relevant place, or a notary public or Commissioner for oaths in the relevant place;

“relevant place” means whichever of the following the context requires—

(a)

the United Kingdom;

(b)

the relevant part of the United Kingdom;

(c)

Gibraltar.]

F16(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M11977 c. 45. Section 1 was amended by section 5(1) of the Criminal Attempts Act 1981 (c. 47), Part 2 of Schedules 1 and 2 to the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c. 40) and Schedule 1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52). Section 1A was inserted by section 5(1) of the Criminal Justice (Terrorism and Conspiracy) Act 1988 and was amended by section 72(1)(a) of the Coroners and Justice Act 2009 (c. 25).

M2S.I. 1983/1120 (N.I.13); amended by section 6(1) of, and Part 2 of Schedules 1 and 2 to, the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c. 40). There are other amendments which are not relevant to these Regulations.

M3OJ No L 300, 11.11.2008, p.42.

M51889 c. 69. This Act has been repealed by Schedule 2 to the Bribery Act 2010 (c. 23).

M61906 c. 34. Section 1 was amended by section 108(2) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) and repealed by Schedule 2 to the Bribery Act 2010 (c. 23).

M9OJ No L 164, 22.6.2002, p.3, as amended by Council Framework Decision 2008/919/JHA, OJ No L 330, 9.12.2008, p.21.

M10S.I. 2003/3075. These Regulations were revoked in relation to England, Wales and Scotland by regulation 1(3) of S.I. 2007/2157 and in relation to Northern Ireland by S.I. 2008/1741.

M11S.I. 2007/2157. Regulation 2(1) is amended by regulation 1 of S.I. 2009/1912. There are other amendments which are not relevant to these Regulations.

M121988 c. 33; sections 93A, 93B and 93C were inserted by sections 29(1), 30 and 31 of the Criminal Justice Act 1993 (c. 36) and were repealed by Schedules 11 and 12 to the Proceeds of Crime Act 2002 (c. 29).

M13S.I. 1996/1299 (N.I. 9); articles 45 to 47 were repealed by Schedules 11 and 12 to the Proceeds of Crime Act 2002 (c. 29). There are other amendments which are not relevant to these Regulations.

M141994 c. 37. Sections 49, 50 and 51 were repealed by Schedules 11 and 12 to the Proceeds of Crime Act 2002 (c. 29).

M16S.I. 1989/2405 (N.I. 19). There are amendments to this Order which are not relevant to these Regulations.

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