The basis upon which economic operators can be excluded from public procurement competitions is a controversial issue. Among the concerns giving rise to the need for rules in this area is the desire on the part of public authorities to ensure that tenderers who have a track record of poor performance, or have engaged in unlawful or other undesirable conduct, can be excluded from obtaining more public contracts.
The EU and UK regimes each provide for discretionary and mandatory grounds of exclusion, with the mandatory grounds generally reflecting very serious violations of law.
In the UK, the Procurement Act 2023 has somewhat expanded the grounds for exclusion from the prior regime, and employs the concepts of “excluded” and “excludable” suppliers. It also makes provision for exclusion by virtue of actions of a supplier’s sub-contractors and “associated” persons. The Act also introduces a centralised debarment list.
-
EU
-
Directive 2014/24
-
Article 24 Conflicts of Interest
View article
Member States shall ensure that contracting authorities take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.
The concept of conflicts of interest shall at least cover any situation where staff members of the contracting authority or of a procurement service provider acting on behalf of the contracting authority who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure.
-
Article 41 Prior involvement of candidates or tenderers
View article
Where a candidate or tenderer or an undertaking related to a candidate or tenderer has advised the contracting authority, whether in the context of Article 40 or not, or has otherwise been involved in the preparation of the procurement procedure, the contracting authority shall take appropriate measures to ensure that competition is not distorted by the participation of that candidate or tenderer.
Such measures shall include the communication to the other candidates and tenderers of relevant information exchanged in the context of or resulting from the involvement of the candidate or tenderer in the preparation of the procurement procedure and the fixing of adequate time limits for the receipt of tenders. The candidate or tenderer concerned shall only be excluded from the procedure where there are no other means to ensure compliance with the duty to observe the principle of equal treatment.
Prior to any such exclusion, candidates or tenderers shall be given the opportunity to prove that their involvement in preparing the procurement procedure is not capable of distorting competition. The measures taken shall be documented in the individual report required by Article 84.
-
Article 57 Exclusion Grounds
View article
1. Contracting authorities shall exclude an economic operator from participation in a procurement procedure where they have established, by verifying in accordance with Articles 59, 60 and 61, or are otherwise aware that that economic operator has been the subject of a conviction by final judgment for one of the following reasons:
(a) participation in a criminal organisation, as defined in Article 2 of Council Framework Decision 2008/841/JHA;
(b) corruption, as defined in Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union and Article 2(1) of Council Framework Decision 2003/568/JHA as well as corruption as defined in the national law of the contracting authority or the economic operator;
(c) fraud within the meaning of Article 1 of the Convention on the protection of the European Communities’ financial interests;
(d) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Council Framework Decision 2002/475/JHA respectively, or inciting or aiding or abetting or attempting to commit an offence, as referred to in Article 4 of that Framework Decision;
(e) money laundering or terrorist financing, as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council;
(f) child labour and other forms of trafficking in human beings as defined in Article 2 of Directive 2011/36/EU of the European Parliament and of the Council.
The obligation to exclude an economic operator shall also apply where the person convicted by final judgment is a member of the administrative, management or supervisory body of that economic operator or has powers of representation, decision or control therein.
2. An economic operator shall be excluded from participation in a procurement procedure where the contracting authority is aware that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions and where this has been established by a judicial or administrative decision having final and binding effect in accordance with the legal provisions of the country in which it is established or with those of the Member State of the contracting authority.
3. Member States may provide for a derogation from the mandatory exclusion provided for in paragraphs 1 and 2, on an exceptional basis, for overriding reasons relating to the public interest such as public health or protection of the environment.
Member States may also provide for a derogation from the mandatory exclusion provided in paragraph 2, where an exclusion would be clearly disproportionate, in particular where only minor amounts of taxes or social security contributions are unpaid or where the economic operator was informed of the exact amount due following its breach of its obligations relating to the payment of taxes or social security contributions at such time that it did not have the possibility of taking measures as provided for in the third subparagraph of paragraph 2 before expiration of the deadline for requesting participation or, in open procedures, the deadline for submitting its tender.
4. Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations:
Furthermore, contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure an economic operator where the contracting authority can demonstrate by any appropriate means that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions.
This paragraph shall no longer apply when the economic operator has fulfilled its obligations by paying or entering into a binding arrangement with a view to paying the taxes or social security contributions due, including, where applicable, any interest accrued or fines.
(a) where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations referred to in Article 18(2);
(b) where the economic operator is bankrupt or is the subject of insolvency or winding-up proceedings, where its assets are being administered by a liquidator or by the court, where it is in an arrangement with creditors, where its business activities are suspended or it is in any analogous situation arising from a similar procedure under national laws and regulations;
(c) where the contracting authority can demonstrate by appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable;
(d) where the contracting authority has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;
(e) where a conflict of interest within the meaning of Article 24 cannot be effectively remedied by other less intrusive measures;
(f) where a distortion of competition from the prior involvement of the economic operators in the preparation of the procurement procedure, as referred to in Article 41, cannot be remedied by other, less intrusive measures;
(g) where the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity or a prior concession contract which led to early termination of that prior contract, damages or other comparable sanctions;
(h) where the economic operator has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria, has withheld such information or is not able to submit the supporting documents required pursuant to Article 59; or
(i) where the economic operator has undertaken to unduly influence the decision-making process of the contracting authority, to obtain confidential information that may confer upon it undue advantages in the procurement procedure or to negligently provide misleading information that may have a material influence on decisions concerning exclusion, selection or award.
Notwithstanding point (b) of the first subparagraph, Member States may require or may provide for the possibility that the contracting authority does not exclude an economic operator which is in one of the situations referred to in that point, where the contracting authority has established that the economic operator in question will be able to perform the contract, taking into account the applicable national rules and measures on the continuation of business in the case of the situations referred to in point (b).
5. Contracting authorities shall at any time during the procedure exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs 1 and 2.
At any time during the procedure, contracting authorities may exclude or may be required by Member States to exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph 4.
6. Any economic operator that is in one of the situations referred to in paragraphs 1 and 4 may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. If such evidence is considered as sufficient, the economic operator concerned shall not be excluded from the procurement procedure.
For this purpose, the economic operator shall prove that it has paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct, clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities and taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.
The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the measures are considered to be insufficient, the economic operator shall receive a statement of the reasons for that decision.
An economic operator which has been excluded by final judgment from participating in procurement or concession award procedures shall not be entitled to make use of the possibility provided for under this paragraph during the period of exclusion resulting from that judgment in the Member States where the judgment is effective.
7. By law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article. They shall, in particular, determine the maximum period of exclusion if no measures as specified in paragraph 6 are taken by the economic operator to demonstrate its reliability. Where the period of exclusion has not been set by final judgment, that period shall not exceed five years from the date of the conviction by final judgment in the cases referred to in paragraph 1 and three years from the date of the relevant event in the cases referred to in paragraph 4.
-
Article 58(4) Selection Criteria
View article
4. With regard to technical and professional ability, contracting authorities may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard.
Contracting authorities may require, in particular, that economic operators have a sufficient level of experience demonstrated by suitable references from contracts performed in the past. A contracting authority may assume that an economic operator does not possess the required professional abilities where the contracting authority has established that the economic operator has conflicting interests which may negatively affect the performance of the contract.
-
Recitals 16, 100, 101, 102
View article
(16) Contracting authorities should make use of all possible means at their disposal under national law in order to prevent distortions in public procurement procedures stemming from conflicts of interest. This could include procedures to identify, prevent and remedy conflicts of interests.
(100) Public contracts should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union’s financial interests, terrorist offences, money laundering or terrorist financing. The non-payment of taxes or social security contributions should also lead to mandatory exclusion at the level of the Union. Member States should, however, be able to provide for a derogation from those mandatory exclusions in exceptional situations where overriding requirements in the general interest make a contract award indispensable. This might, for example, be the case where urgently needed vaccines or emergency equipment can only be purchased from an economic operator to whom one of the mandatory grounds for exclusion otherwise applies.
(101) Contracting authorities should further be given the possibility to exclude economic operators which have proven unreliable, for instance because of violations of environmental or social obligations, including rules on accessibility for disabled persons or other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights. It should be clarified that grave professional misconduct can render an economic operator’s integrity questionable and thus render the economic operator unsuitable to receive the award of a public contract irrespective of whether the economic operator would otherwise have the technical and economical capacity to perform the contract.
Bearing in mind that the contracting authority will be responsible for the consequences of its possible erroneous decision, contracting authorities should also remain free to consider that there has been grave professional misconduct, where, before a final and binding decision on the presence of mandatory exclusion grounds has been rendered, they can demonstrate by any appropriate means that the economic operator has violated its obligations, including obligations relating to the payment of taxes or social security contributions, unless otherwise provided by national law. They should also be able to exclude candidates or tenderers whose performance in earlier public contracts has shown major deficiencies with regard to substantive requirements, for instance failure to deliver or perform, significant shortcomings of the product or service delivered, making it unusable for the intended purpose, or misbehaviour that casts serious doubts as to the reliability of the economic operator. National law should provide for a maximum duration for such exclusions.
In applying facultative grounds for exclusion, contracting authorities should pay particular attention to the principle of proportionality. Minor irregularities should only in exceptional circumstances lead to the exclusion of an economic operator. However repeated cases of minor irregularities can give rise to doubts about the reliability of an economic operator which might justify its exclusion.
(102) Allowance should, however, be made for the possibility that economic operators can adopt compliance measures aimed at remedying the consequences of any criminal offences or misconduct and at effectively preventing further occurrences of the misbehaviour. Those measures might consist in particular of personnel and organisational measures such as the severance of all links with persons or organisations involved in the misbehaviour, appropriate staff reorganisation measures, the implementation of reporting and control systems, the creation of an internal audit structure to monitor compliance and the adoption of internal liability and compensation rules. Where such measures offer sufficient guarantees, the economic operator in question should no longer be excluded on those grounds alone. Economic operators should have the possibility to request that compliance measures taken with a view to possible admission to the procurement procedure be examined. However, it should be left to Member States to determine the exact procedural and substantive conditions applicable in such cases. They should, in particular, be free to decide whether to allow the individual contracting authorities to carry out the relevant assessments or to entrust other authorities on a central or decentralised level with that task.
-
Article 24 Conflicts of Interest
-
Directive (EU) 2024/1203 on the protection of the environment through criminal law
Transposition Date: 21 May 2026 (Article 28)
-
Article 5 Penalties for natural persons
View article
3. Member States shall take the necessary measures to ensure that natural persons who have committed criminal offences referred to in Articles 3 and 4 may be subject to accessory criminal or non-criminal penalties or measures which may include the following:
…
(c) exclusion from access to public funding, including tender procedures, grants, concessions and licences
-
Article 7 Penalties for legal persons
View article
2. Member States shall take the necessary measures to ensure that penalties or measures for legal persons held liable pursuant to Article 6(1) or (2) for the criminal offences referred to in Articles 3 and 4 shall include criminal or non-criminal fines and may include other criminal or non-criminal penalties or measures, such as:
…
(c) exclusion from access to public funding, including tender procedures, grants, concessions and licences
-
Recital 31
View article
(31) Accessory penalties or measures are often seen as being more effective than financial penalties, especially for legal persons. Accessory penalties or measures should be therefore available in the relevant proceedings. Those penalties or measures could include the obligation to restore the environment, the exclusion from access to public funding, including tender procedures, grants and concessions, and the withdrawal of permits and authorisations. This is without prejudice to the discretion of judges or courts in criminal proceedings to impose appropriate penalties in individual cases.
-
Article 5 Penalties for natural persons
-
Directive 2014/24
-
Ireland
-
S.I. No. 284/2016 - European Union (Award of Public Authority Contracts) Regulations 2016
-
Regulation 57 Exclusion Grounds
View article
(1) Subject to paragraphs (6), (7), (13) and (18), a contracting authority shall exclude an economic operator from participation in a procurement procedure where it has established, by verifying in accordance with Regulations 59, 60 and 61, or is otherwise aware that the economic operator concerned has been convicted of one or more of the following offences:
(a) participation in a criminal organisation, within the meaning of Article 2 of Council Framework Decision 2008/841/JHA of 24 October 200836 on the fight against organised crime;
(b) corruption, which, in this Regulation, means corruption within the meaning of the following:
(i) Regulation 2;
(ii) Article 2(1) of Council Framework Decision 2003/568/JHA37 of 22 July 2003 on combating corruption in the private sector;
(iii) the law of the State, where the contracting authority or the economic operator concerned is established in the State;
(iv) the law of the Member State, other than the State, in which the contracting authority or the economic operator concerned is established;
(c) fraud within the meaning of Article 1 of the Convention on the protection of the European Communities financial interests drawn up under the Council Act of 26 July 199538 ;
(d) terrorist offences or offences linked to terrorist activities, within the meaning of Articles 1 and 3 respectively of Council Framework Decision 2002/475/JHA of 13 June 200239 on combating terrorism or inciting or aiding or abetting or attempting to commit an offence referred to in Article 4 of that Council Framework Decision;
(e) money laundering or terrorist financing, within the meaning of Article 1 of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 200540 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing;
(f) child labour and other forms of trafficking in human beings, within the meaning of Article 2 of Directive 2011/36/EU41 of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA.
(2) The obligation of a contracting authority to exclude an economic operator under paragraph (1) also applies (but subject to paragraphs (6), (7), (13) and (18)) where the person convicted is a member of the administrative, management or supervisory body of that economic operator or has powers of representation, decision or control in the economic operator.
(3) Subject to paragraphs (5) to (7), (13) and (19), an economic operator shall be excluded from participation in a procurement procedure where—
(a) the contracting authority is aware that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions, and
(b) the breach referred to in subparagraph (a) has been established by a judicial or administrative decision having final and binding effect in accordance with the law of the country in which the operator is established or the Member State of the contracting authority.
(4) Subject to paragraph (5), a contracting authority may exclude an economic operator from participation in a procurement procedure where the contracting authority can demonstrate, by any appropriate means, that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions.
(5) Paragraphs (3) and (4) shall not apply when the economic operator has fulfilled its obligations by paying, or entering into a binding arrangement with a view to paying, the taxes or social security contributions due, including, where applicable, any interest accrued or fines.
(6) A contracting authority shall not be obliged to exclude an economic operator under this Regulation where, on an exceptional basis, there are overriding reasons relating to the public interest such as public health or protection of the environment.
(7) A contracting authority shall not be obliged to exclude an economic operator under this Regulation where such an exclusion would be disproportionate, including where—
(a) only minor amounts of taxes or social security contributions referred to in paragraph (3)(a) are unpaid, or
(b) the economic operator was informed of the exact amount due following its breach of its obligations relating to the payment of taxes or social security contributions referred to in paragraph (3)(a) at such time that it did not have the possibility of taking measures as provided for in paragraph (5) before the expiration of the deadline for requesting participation or, in open procedures, the deadline for submitting its tender.
(8) Subject to paragraphs (13) and (20), a contracting authority may exclude from participation in a procurement procedure any economic operator in one or more of the following situations:
(a) where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations referred to in Regulation 18(4);
(b) where the economic operator is bankrupt or is the subject of insolvency or winding-up proceedings, where its assets are being administered by a liquidator or by the court, where it is in an arrangement with creditors, where its business activities are suspended or it is in any analogous situation arising from a similar procedure under the law of the State;
(c) where the contracting authority can demonstrate, by appropriate means, that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable;
(d) where the contracting authority has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;
(e) where a conflict of interest within the meaning of Regulation 24 cannot be effectively remedied by other, less intrusive, measures;
(f) where a distortion of competition from the prior involvement of the economic operator in the preparation of the procurement procedure, as referred to in Regulation 41, cannot be remedied by other, less intrusive, measures;
(g) where the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity or a prior concession contract, which led to early termination of that prior contract, damages or other comparable sanctions;
(h) where the economic operator has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria, has withheld such information or is not able to submit supporting documents required under Regulation 59;
(i) where the economic operator has undertaken to unduly influence the decision-making process of the contracting authority, or obtain confidential information that may confer upon it undue advantages in the procurement procedure or where the economic operator has negligently provided misleading information that may have a material influence on decisions concerning exclusion, selection or award.
(9) Notwithstanding paragraph (8)(b), a contracting authority may decide not to exclude an economic operator that is in any of the situations referred to in that paragraph where the contracting authority has established that the economic operator will be able to perform the contract taking into account the national rules and measures of the Member State of establishment of the economic operator or the law of the State, as appropriate, on the continuation of business in those situations.
(10) A contracting authority shall, at any time during the procurement procedure, exclude an economic operator where the authority becomes aware that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs (1) to (3).
(11) A contracting authority may, at any time during the procurement procedure, exclude an economic operator where the authority becomes aware that that economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph (8).
(12) An economic operator that is in one of the situations referred to in paragraphs (1), (2) or (8) may provide evidence to the effect that measures taken by the economic operator concerned are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion.
(13) Where the evidence provided under paragraph (12) is considered sufficient the economic operator concerned shall not be excluded from the procurement procedure.
(14) For the purposes of paragraphs (12) and (13) the economic operator shall show that it has—
(a) paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct concerned,
(b) clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities, and
(c) taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.
(15) The contracting authority shall, when evaluating the measures shown to be taken by the economic operator under paragraph (14), take into account the gravity and particular circumstances of the criminal offence or misconduct concerned.
(16) Where the contracting authority considers that the measures shown to be taken by the economic operator under paragraph (14) are insufficient, the contracting authority shall give the economic operator a statement of the reasons for that decision.
(17) An economic operator that is excluded by final judgment from participating in procurement or concession award procedures shall not be entitled to make use of the possibility provided for in paragraphs (12) to (16) during the period of exclusion resulting from that judgment in the Member State where the judgement is effective.
(18) Paragraphs (1) and (2) shall be construed so that the requirement under either of those paragraphs that the economic operator be excluded, in the manner there mentioned, shall cease to apply on the expiration of the period of 5 years from the date of conviction of the economic operator or person, as the case may be, for the offence concerned referred to in the relevant paragraph.
(19) Paragraph (3) shall be construed so that the requirement under that paragraph that the economic operator be excluded, in the manner there mentioned, shall cease to apply on the expiration of the period of 5 years from the date the relevant breach is established by the judicial or administrative decision concerned referred to in subparagraph (b) of that paragraph.
(20) Paragraph (8) shall be construed so that the power under that paragraph to exclude an economic operator, in the manner there mentioned, shall not be exercisable where the contracting authority establishes that 3 or more years have elapsed since the date that the economic operator concerned was in the relevant situation referred to in that paragraph.
(21) The reference in paragraph (18) to the requirement under paragraph (1) or (2) includes a reference to the requirement under either such paragraph as it operates by virtue of paragraph (10).
(22) The reference in paragraph (19) to the requirement under paragraph (3) includes a reference to the requirement under that paragraph as it operates by virtue of paragraph (10).
(23) The reference in paragraph (20) to the power under paragraph (8) includes a reference to the power under that paragraph as that paragraph operates by virtue of paragraph (11).
-
Regulation 57 Exclusion Grounds
-
S.I. No. 284/2016 - European Union (Award of Public Authority Contracts) Regulations 2016
-
UK
-
UK Procurement Act 2023
-
16 Preliminary market engagement
View section / regulation
(4) Subsection (5) applies if a contracting authority considers that—
(a) a supplier’s participation in preliminary market engagement has put the supplier at an unfair advantage in relation to the award of a public contract, and
(b) the advantage cannot be avoided.
(5) The contracting authority must in relation to the award—
(a) treat the supplier as an excluded supplier for the purpose of—
(i) assessing tenders under section 19 (competitive award), or
(ii) awarding a contract under section 41 or 43 (direct award), and
(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.
-
22 Conditions of participation
View section / regulation
(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.
-
26 Excluding suppliers from a competitive award
View section / regulation
(1) In assessing tenders under section 19, a contracting authority must disregard any tender from a supplier that is an excluded supplier.
(2) Before assessing which tender best satisfies the award criteria for the purposes of section 19, a contracting authority—
(a) must consider whether a supplier is an excludable supplier, and
(b) may disregard any tender from an excludable supplier.
(3) If the supplier is an excluded or excludable supplier only by virtue of an associated person being an excluded or excludable supplier, the contracting authority must, before disregarding a tender—
(a) notify the supplier of its intention to disregard, and
(b) give the supplier reasonable opportunity to replace the associated person.
(4) In this Act, “associated person” means a person that the supplier is relying on in order to satisfy the conditions of participation (see section 22(8)), but not a person who is to act as guarantor as described in section 22(9).
-
27 Excluding suppliers from a competitive flexible procedure
View section / regulation
(1) Before permitting a supplier to participate in a competitive flexible procedure, a contracting authority must determine whether the supplier is—
(a) an excluded supplier, or
(b) an excludable supplier.
(2) The contracting authority must exclude an excluded supplier from participating in, or progressing as part of, the competitive flexible procedure.
(3) The contracting authority may exclude an excludable supplier from participating in, or progressing as part of, the competitive flexible procedure.
(4) Before excluding a supplier that is an excluded supplier or excludable supplier only by virtue of an associated person, a contracting authority must—
(a) notify the supplier of its intention, and
(b) provide the supplier with reasonable opportunity to replace the associated person.
(5) In this section, a reference to a supplier participating in a competitive flexible procedure is a reference to a supplier participating beyond the initial submission of tenders or requests to participate.
-
28 Excluding suppliers by reference to sub-contractors
View section / regulation
(1) A contracting authority must as part of a competitive tendering procedure—
(a) request information about whether a supplier intends to sub-contract the performance of all or part of the public contract, and
(b) seek to determine whether any intended sub-contractor is on the debarment list.
(2) A contracting authority may, as part of a competitive tendering procedure, request information for the purpose of determining whether any intended sub-contractor is an excluded or excludable supplier.
(3) If, after requesting information under subsection (1) or (2), a contracting authority considers that a supplier intends to sub-contract to a supplier that is an excluded supplier, the contracting authority must—
(a) treat the supplier as an excluded supplier for the purpose of assessing tenders under section 19, and
(b) exclude the supplier from participating in, or progressing as part of, the competitive tendering procedure.
(4) If, after requesting information under subsection (1) or (2), a contracting authority considers that a supplier intends to sub-contract to a supplier that is an excludable supplier, the contracting authority—
(a) must treat the supplier as an excludable supplier for the purpose of assessing tenders under section 19, and
(b) may exclude the supplier from participating in, or progressing as part of, the competitive tendering procedure.
(5) Before disregarding a tender or excluding a supplier under subsection (3) or (4), a contracting authority must—
(a) notify the supplier of its intention, and
(b) give the supplier reasonable opportunity to find an alternative supplier with which to sub-contract.
(6) In this section, a reference to a supplier participating in a competitive tendering procedure is a reference to a supplier participating beyond the initial submission of tenders or requests to participate.
(7) Subsections (3) and (4) do not apply if the intended sub-contractor is an associated person.
-
29 Excluding a supplier that is a threat to national security
View section / regulation
(1) This section applies if a relevant contracting authority intends to disregard a tender under section 26 or 28 or exclude a supplier under section 27 or 28 on the basis of the discretionary exclusion ground in paragraph 14 of Schedule 7 (threat to national security).
(2) The contracting authority may not disregard the tender, exclude the supplier or notify the supplier of its intention unless—
(a) the authority has notified a Minister of the Crown of its intention, and
(b) the Minister of the Crown considers that—
(i) the supplier or an intended sub-contractor is an excludable supplier by reference to paragraph 14 of Schedule 7, and
(ii) the tender should be disregarded or supplier excluded.
(3) The reference in subsection (2) to a contracting authority notifying a supplier of its intention is a reference to notification in accordance with section 26(3), 27(4) or 28(5).
(4) 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.
-
30 Excluding suppliers for improper behaviour
View section / regulation
(1) Subsection (2) applies if a contracting authority determines that—
(a) a supplier has acted improperly in relation to the award of a public contract,
(b) in consequence, the supplier is put at an unfair advantage in relation to the award, and
(c) the unfair advantage cannot be avoided other than by excluding the supplier.
(2) The contracting authority must in relation to the award—
(a) treat the supplier as an excluded supplier for the purpose of assessing tenders under section 19, and
(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.
(3) Before making a determination of the kind described in subsection (1), a contracting authority must give the supplier reasonable opportunity to—
(a) make representations, and
(b) provide relevant evidence.
(4) In subsection (1), the reference to a supplier acting improperly is reference to a supplier—
(a) failing to provide information requested by the contracting authority,
(b) providing information that is incomplete, inaccurate or misleading,
(c) accessing confidential information, or
(d) unduly influencing the contracting authority’s decision-making.
(5) Subsection (6) applies if—
(a) a contracting authority has, in relation to the award of a public contract, requested—
(i) information about a supplier’s connected persons or associated persons for the purpose of determining whether the supplier is an excluded or excludable supplier, or
(ii) other information under section 28(2) (excluding suppliers by reference to sub-contractors), and
(b) the supplier has—
(i) failed to provide the information requested, or
(ii) provided information that is incomplete, inaccurate or misleading.
(6) The contracting authority must in relation to the award—
(a) treat the supplier as an excluded supplier for the purpose of assessing tenders under section 19, and
(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.
-
34 Competitive award by reference to dynamic markets
View section / regulation
(1) A competitive flexible procedure may provide for the following suppliers to be excluded from participating in, or progressing as part of, the procedure—
(a) suppliers that are not members of an appropriate dynamic market, or
(b) suppliers that are not members of an appropriate part of an appropriate dynamic market.
(2) Subsection (3) applies in relation to the award of a public contract under section 19 if the competitive flexible procedure provides for suppliers to be excluded as set out in subsection (1).
(3) In assessing tenders under section 19, a contracting authority must disregard any tender from a supplier that is not a member of—
(a) the appropriate dynamic market, or
(b) the appropriate part of the appropriate dynamic market.
(4) A contracting authority must, before excluding suppliers or disregarding tenders under this section, consider any applications for membership of the market or part of the market from suppliers that have submitted a request to participate in the competitive flexible procedure, or submitted a tender as part of the competitive flexible procedure.
(5) Subsection (4) does not apply in relation to an application for membership if, due to exceptional circumstances arising from the complexity of the particular procurement, a contracting authority is unable to consider the application before—
(a) the deadline for submitting a request to participate in the procedure, or
(b) where there has been no invitation to submit such requests, the deadline for submitting a first or only tender.
(6) A dynamic market or part of a dynamic market is “appropriate” for the purposes of this section if its terms permit the award of the contract by the contracting authority.
(7) This section does not apply in relation to the award of a concession contract, unless the concession contract is also a utilities contract.
(8) In this Act—
“dynamic market” means arrangements established under section 35(1);
references to a contract being awarded by reference to suppliers’ membership of a dynamic market are references to a contract being awarded in reliance on this section;
references to suppliers’ membership of a dynamic market are references to suppliers’ participation in arrangements established under section 35(1).
-
36 Dynamic markets: membership
View section / regulation
(6) A contracting authority must—
(a) accept applications for membership of a dynamic market or part of a dynamic market at any time during the term of the market;
(b) consider such applications within a reasonable period;
(c) admit to the market or the part of the market, as soon as reasonably practicable, any supplier that—
(i) is not an excluded or excludable supplier, and
(ii) satisfies the conditions for membership;
(d) consider whether to admit to the market or the part of the market any supplier that—
(i) is an excludable supplier, and
(ii) satisfies the conditions for membership;
(e) inform a supplier of the outcome of their application, together with reasons for the decision, as soon as reasonably practicable.
-
37 Dynamic markets: removing members from the market
View section / regulation
(1) A contracting authority must remove a supplier from a dynamic market if the authority considers that the supplier is an excluded supplier under section 57(1)(b) (debarment by reference to mandatory exclusion ground).
(2) A contracting authority may remove a supplier from a dynamic market if—
(a) the authority considers that the supplier—
(i) is an excluded supplier under section 57(1)(a),
(ii) does not satisfy the conditions for membership, or
(iii) has, since becoming a member, become an excludable supplier, or
(b) the authority discovers that, on becoming a member, the supplier was an excludable supplier.
(3) The reference to a supplier becoming an excludable supplier includes a reference to a supplier becoming an excludable supplier by virtue of a discretionary exclusion ground that—
(a) did not apply before the supplier became a member, or
(b) applied before the supplier became a member by reference to different circumstances.
(4) Before removing a supplier from a dynamic market, a contracting authority must inform the supplier of its decision to do so, together with reasons for the decision.
-
41 Direct award in special cases
View section / regulation
(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.
-
45 Frameworks
View section / regulation
(1) A contracting authority may award a public contract in accordance with a framework.
…
(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.
-
46 Frameworks: competitive selection process
View section / regulation
(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.
-
48 Frameworks: implied terms
View section / regulation
(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.
-
57 Meaning of excluded and excludable supplier
View section / regulation
(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
View section / regulation
(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).
-
59 Notification of exclusion of supplier
View section / regulation
(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—
(a) if the contracting authority is a devolved Welsh authority, the Welsh Ministers;
(b) if the contracting authority is a transferred Northern Ireland authority, the Northern Ireland department that the contracting authority considers it most appropriate to notify;
(c) in any other case, a Minister of the Crown.
-
60 Investigations of supplier: exclusion grounds
View section / regulation
(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—
(a) are specified or described in a notice under subsection (4) or (6), and(b) are in the possession or control of the recipient of the notice;
“relevant exclusion ground” has the meaning given in section 59.
-
61 Investigations under section 60: reports
View section / regulation
(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.
-
62 Debarment list
View section / regulation
(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.
-
63 Debarment decisions: interim relief
View section / regulation
(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—
(a) in England and Wales, the High Court,
(b) in Northern Ireland, the High Court, and
(c) in Scotland, the Court of Session;
“debarment standstill period” has the meaning given in subsection (6) of section 62 (debarment list).
-
64 Debarment list: application for removal
View section / regulation
(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.
-
65 Debarment decisions: appeals
View section / regulation
(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—
(a) the supplier’s tender being disregarded under section 26;
(b) 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
View section / regulation
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).
-
78 Implied right to terminate public contracts
View section / regulation
(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.
-
Schedule 6 Mandatory Exclusion Grounds
View section / regulation
PART 1 OFFENCES
1 A mandatory exclusion ground applies to a supplier if the supplier or a connected person has been convicted of an offence referred to in this Part of this Schedule.
Corporate manslaughter or corporate homicide
2 An offence under section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 (corporate manslaughter or corporate homicide).
Terrorism
3 An offence listed in section 41 or 42 of the Counter-Terrorism Act 2008 (terrorism offences, and offences having a terrorist connection, in respect of which the notification requirements under Part 4 of that Act apply), other than an offence under section 54 of that Act.
Theft, fraud, bribery etc
4 An offence at common law in Scotland of theft, fraud, extortion, robbery, theft by housebreaking, housebreaking with intent to steal, uttering, embezzlement, or reset.
5 An offence at common law of conspiracy to defraud.
6 An offence under any of the following sections of the Theft Act 1968—
(a) sections 1 to 13 (theft, robbery, burglary, etc);
(b) sections 17 to 21 (fraud and blackmail);
(c) sections 22 and 23 (offences relating to stolen goods);
(d) section 24A (dishonestly retaining a wrongful credit);
(e) section 25 (going equipped for stealing etc).
7 An offence under any of the following sections of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.))—
(a) sections 1 to 13 (theft, robbery, burglary, etc);
(b) sections 17 to 20 (fraud and blackmail);
(c) sections 21 and 22 (offences relating to stolen goods);
(d) section 23A (dishonestly retaining a wrongful credit);
(e) section 24 (going equipped for stealing etc).
8 An offence under section 3 of the Theft Act 1978 (making off without payment).
9 An offence under section 5 of the Theft (Northern Ireland) Order 1978 (S.I. 1978/1407 (N.I. 23)) (making off without payment).
10 An offence under Article 172 or 172A of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)) (taking vehicle without authority etc).
11 An offence under section 58 of the Civic Government (Scotland) Act 1982 (convicted thief in possession).
12 An offence under section 113 of the Representation of the People Act 1983 (bribery of electors).
13 An offence under section 178 of the Road Traffic Act 1988 (taking motor vehicle without authority etc).
14 An offence under section 327, 328 or 329 of the Proceeds of Crime Act 2002 (money laundering offences).
15 An offence under section 2, 3, 4, 6 or 7 of the Fraud Act 2006 (fraud offences).
16 An offence under section 993 of the Companies Act 2006 (fraudulent trading).
17 An offence under section 1, 2 or 6 of the Bribery Act 2010 (bribery offences).
18 An offence under section 49 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) (offences relating to articles for use in fraud).
Labour market, slavery and human trafficking offences
19 An offence under the Employment Agencies Act 1973 (offences relating to employment agencies) other than an offence under section 9(4)(b) of that Act.
20 An offence under the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (S.I. 1981/839) (N.I. 20)) (offences relating to employment agencies) other than an offence under Article 7B(11) of that Order.
21 An offence under section 31(1) of the National Minimum Wage Act 1998 (refusal or wilful neglect to pay the national minimum wage).
22 An offence under the Gangmasters (Licensing) Act 2004 (offences relating to gangmasters).
23 An offence under section 1, 2, 4 or 30 of the Modern Slavery Act 2015 (slavery and human trafficking offences).
24 An offence under section 1, 4 or 32 of the Human Trafficking and Exploitation (Scotland) Act 2015 (asp 12) (slavery and human trafficking offences).
25 An offence under section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2) (N.I.)), or paragraph 16 of Schedule 3 to that Act (slavery and human trafficking offences).
26 An offence under section 27 of the Immigration Act 2016 (failure to comply with labour market enforcement order).
Organised crime
27 An offence under section 28 of the Criminal Justice and Licensing (Scotland) Act 2010 (agreeing to become involved in serious organised crime).
28 An offence under section 45 of the Serious Crime Act 2015 (participating in activities of organised crime group).
Tax offences
29 An offence at common law of cheating the public revenue.
30 (1) An offence under the law of any part of the United Kingdom consisting of being knowingly concerned in, or in taking steps with a view to, the fraudulent evasion of a tax.
(2) In this paragraph, “tax” means a tax imposed under the law of any part of the United Kingdom, including national insurance contributions under—
(a) Part 1 of the Social Security Contributions and Benefits Act 1992, or
(b) Part 1 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
31 An offence under section 45 or 46 of the Criminal Finances Act 2017 (failure to prevent facilitation of tax evasion).
Cartel offence
32 An offence under section 188 of the Enterprise Act 2002 (cartel offence).
Ancillary offences
33 In relation to an offence otherwise referred to in this Part, any of the following offences—
(a) aiding, abetting, counselling or procuring the commission of the offence;
(b) in Scotland, being art and part in the commission of the offence;
(c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to the offence;
(d) inciting a person to commit the offence;
(e) attempting or conspiring to commit the offence.
Offences committed outside the United Kingdom
34 (1) An offence under the law of a country or territory outside the United Kingdom which would be an offence otherwise referred to in this Part of this Schedule if the conduct constituting that offence was carried out in any part of the United Kingdom.
(2) For the purposes of this paragraph, an act punishable under the law of a country or territory outside the United Kingdom constitutes an offence under that law, however it is described in that law.
PART 2
OTHER MANDATORY EXCLUSION GROUNDS
National security
35 (1) A mandatory exclusion ground applies to a supplier in relation to contracts of a particular description if an appropriate authority determines that the supplier or a connected person—
(a) poses a threat to the national security of the United Kingdom, and
(b) would pose such a threat in relation to public contracts of that description.
(2) In sub-paragraph (1)—
(a) the reference to an appropriate authority is a reference to the appropriate authority that is considering whether the exclusion ground applies;
(b) the reference to a particular description includes, for example, a description by reference to—
(i) the goods, services or works being supplied;
(ii) the location of the supply;
(iii) the contracting authority concerned.
(3) Sub-paragraph (1) applies only for the purpose of an appropriate authority’s functions under sections 59 to 66 (debarment), and cannot otherwise be relied on by a contracting authority when considering whether a supplier is an excluded supplier under section 57(1)(a).
Misconduct in relation to tax
36 (1) A mandatory exclusion ground applies to a supplier if the supplier or a connected person has been liable to a penalty under—
(a) section 69C of the Value Added Tax Act 1994 (transactions connected with VAT fraud) except where the penalty is reduced under section 70 of that Act, or
(b) section 25 of the Finance Act 2003 (evasion of tax or duty).
(2) The supplier or connected person is not to be treated as having been liable to such a penalty unless HMRC has assessed the amount of the penalty and the time for any appeal or further appeal relating to the penalty has expired or, if later, any appeal or final appeal relating to it has been finally determined.
37 (1) A mandatory exclusion ground applies to a supplier if a penalty has been payable by the supplier or a connected person under—
(a) Schedule 24 to the Finance Act 2007 (errors in tax documentation), or
(b) Schedule 41 to the Finance Act 2008 (failure to notify and certain VAT and excise wrongdoing),
but only where the conduct giving rise to that penalty was deliberate.
(2) Such a penalty is not to be treated as having been payable unless—
(a) if the penalty has been assessed, the time for any appeal or further appeal relating to the penalty has expired or, if later, any appeal or final appeal relating to it has been finally determined, or
(b) a contract has been made between HMRC and the supplier or connected person, under which HMRC undertook not to assess the penalty or (if it was assessed) not to take proceedings to recover it.
38 (1) A mandatory exclusion ground applies to a supplier if—
(a) the supplier or a connected person has entered into or carried out tax arrangements that are abusive (within the meaning given in section 207 of the Finance Act 2013), and
(b) adjustments have accordingly been made under section 209 of that Act (countering tax advantages), including as it applies under section 10 of the National Insurance Contributions Act 2014.
(2) Adjustments are not to be treated as having been made until they can no longer be challenged, whether on appeal or otherwise.
39 (1) A mandatory exclusion ground applies to a supplier if the supplier or a connected person has been found by HMRC, in exercise of its powers in respect of VAT, to have engaged in an abusive practice.
(2) The supplier or connected person is not to be treated as having been found by HMRC to have engaged in those arrangements or practices until the finding can no longer be challenged, whether on appeal or otherwise.
40 (1) A mandatory exclusion ground applies to a supplier if the supplier or a connected person has incurred a defeat in respect of notifiable tax arrangements they have entered into.
(2) In this paragraph—
“defeat” means that—
(a) Condition A in paragraph 5 of Schedule 16 to the Finance (No. 2) Act 2017, or
(b) Condition B in paragraph 6 of that Schedule,
is met in respect of the arrangements (where “T” in those paragraphs is taken to mean the supplier or connected person entering into the arrangements);
“notifiable tax arrangements” means tax arrangements in respect of which a reference number—
(a) has been notified to the supplier or connected person under section 311A, 312 or 312ZA of the Finance Act 2004 (disclosure of tax avoidance schemes) or paragraph 22A, 23 or 23A of Schedule 17 to the Finance (No. 2) Act 2017 (disclosure of tax avoidance schemes: VAT and other indirect taxes), and
(b) has not been withdrawn;
“tax arrangements” has the meaning given in paragraph 3(1) of Schedule 16 to the Finance (No. 2) Act 2017.
Competition law infringements
41 (1) A mandatory exclusion ground applies to a supplier if the CMA has made a decision under the Competition Act 1998 that the Chapter I prohibition (within the meaning given by section 2 of that Act) has been infringed by an agreement or concerted practice—
(a) to which the supplier or a connected person was party, and
(b) which was a cartel (within the meaning given by paragraph 4(1) of Schedule 8A to that Act).
(2) Sub-paragraph (1) does not apply if the CMA did not impose a penalty on the supplier or connected person in respect of the infringement because the supplier or connected person was an immunity recipient (within the meaning given by paragraph 14 of Schedule 8A to the Competition Act 1998).
(3) In this paragraph, references to the CMA include references to a regulator referred to in section 54(1) of the Competition Act 1998 in circumstances where it exercises functions concurrently with the CMA in accordance with that Act.
Equivalents outside the United Kingdom
42 A mandatory exclusion ground applies to a supplier if the supplier or a connected person—
(a) has been subject to a penalty or a decision by a regulator, court or other authority outside the United Kingdom, where the conduct giving rise to that penalty or decision is conduct that would give rise to a penalty or decision referred to in any of paragraphs 36 to 41 if committed in the United Kingdom, in circumstances where the penalty or decision would be a mandatory exclusion ground, or
(b) has had a tax advantage counteracted outside the United Kingdom, in circumstances where the supplier or connected person would have incurred a defeat of the kind referred to in paragraph 40 had the tax advantage arisen in respect of tax payable in the United Kingdom.
Failure to cooperate with investigation
43 A mandatory exclusion ground applies to a supplier if—
(a) an appropriate authority has given the supplier or a connected person notice under section 60(6) (requests for documents or other assistance in connection with investigation),
(b) the supplier or connected person has failed to comply with the notice to the satisfaction of the authority before the end of the period specified in the notice, and
(c) a Minister of the Crown has made a determination that the failure to do so was sufficiently serious so as to warrant constituting a mandatory exclusion ground.
PART 3 GENERAL
Excluded matters
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).
Definitions
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).
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.
-
Schedule 7 Discretionary Exclusion Grounds
View section / regulation
DISCRETIONARY EXCLUSION GROUNDS
Labour Market Misconduct
1 A discretionary exclusion ground applies to a supplier if any of the following orders has been made against the supplier or a connected person—
(a) a slavery and trafficking prevention order, an interim slavery and trafficking prevention order, a slavery and trafficking risk order or an interim slavery and trafficking risk order under Part 2 of the Modern Slavery Act 2015;
(b) a trafficking and exploitation prevention order, an interim trafficking and exploitation prevention order, a trafficking and exploitation risk order or an interim trafficking and exploitation risk order under Part 4 of the Human Trafficking and Exploitation (Scotland) Act 2015 (asp 12);
(c) a slavery and trafficking prevention order or an interim slavery and trafficking prevention order under Schedule 3 to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c.2 (N.I.));
(d) a labour market enforcement order under section 18 of the Immigration Act 2016.
2 A discretionary exclusion ground applies to a supplier if the supplier or a connected person has engaged in conduct outside the United Kingdom that the decision-maker considers could result in any such order being made if the conduct occurred in the United Kingdom.
3 A discretionary exclusion ground applies to a supplier if the decision-maker considers that there is sufficient evidence that the supplier or a connected person has engaged in conduct (whether in or outside the United Kingdom) constituting (or that would, if it occurred in the United Kingdom, constitute) an offence referred to in—
(a) section 1, 2, 4 or 30 of the Modern Slavery Act 2015,
(b) section 1, 4 or 32 of the Human Trafficking and Exploitation (Scotland) Act 2015, or
(c) section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, or paragraph 16 of Schedule 3 to that Act.
Environmental misconduct
4 A discretionary exclusion ground applies to a supplier if—
(a) the supplier or a connected person has been convicted of an offence (whether in or outside the United Kingdom), and
(b) the conduct constituting the offence caused, or had the potential to cause, significant harm to the environment, including the life and health of plants and animals.
Insolvency, bankruptcy, etc
5 A discretionary exclusion ground applies to a supplier if the supplier or a connected person has—
(a) become bankrupt (or, in Scotland, its estate has been sequestrated),
(b) become subject to insolvency or winding-up proceedings,
(c) had its assets subject to administration or receivership, including by a liquidator or court,
(d) entered into an arrangement with its creditors,
(e) become subject to a petition or application for any such procedures or arrangements, or
(f) in any jurisdiction, been subject to a procedure or an application the decision-maker considers to correspond to any procedure or application mentioned in paragraphs (a) to (e).
6 A discretionary exclusion ground applies to a supplier if the supplier or a connected person has suspended or ceased carrying on all or a substantial part of its business.
Potential competition infringements
7 (1) A discretionary exclusion ground applies to a supplier if the decision-maker considers that an agreement or concerted practice to which the supplier or a connected person is party has infringed—
(a) the Chapter I prohibition (within the meaning given by section 2 of the Competition Act 1998), or
(b) any substantially similar prohibition applicable in a jurisdiction outside the United Kingdom.
(2) Sub-paragraph (1) does not apply where—
(a) the supplier or connected person is an immunity recipient (within the meaning given by paragraph 14 of Schedule 8A to that Act), or
(b) a regulator or other authority outside the United Kingdom has granted the supplier or connected person immunity from penalties in respect of the infringement.
8 A discretionary exclusion ground applies to a supplier if the decision-maker considers that the supplier or a connected person has infringed—
(a) the Chapter II prohibition (within the meaning given by section 18 of the Competition Act 1998), or
(b) any substantially similar prohibition applicable in a jurisdiction outside the United Kingdom.
9 (1) A discretionary exclusion ground applies to a supplier if—
(a) the CMA has made a decision under the Competition Act 1998 that the supplier or a connected person has infringed the Chapter II prohibition, or
(b) a regulator or other authority outside the United Kingdom has made a decision that the supplier or a connected person has infringed any substantially similar prohibition.
(2) In this paragraph the reference to the CMA includes a reference to a regulator referred to in section 54(1) of the Competition Act 1998 in circumstances where it exercises functions concurrently with the CMA in accordance with that Act.
10 (1) A discretionary exclusion ground applies to a supplier if the decision-maker considers that the supplier or a connected person has engaged in conduct constituting—
(a) an offence under section 188 of the Enterprise Act 2002 (cartel offence), or
(b) a substantially similar offence under the law of a country or territory outside the United Kingdom.
(2) Sub-paragraph (1) does not apply if—
(a) the CMA has given written notice to the supplier or connected person under section 190(4) of the Enterprise Act 2002 (immunity from prosecution for cartel offences) in connection with the conduct, or
(b) a regulator or other authority outside the United Kingdom has determined that the supplier or connected person is immune from prosecution in respect of the conduct.
Professional misconduct
11 (1) A discretionary exclusion ground applies to a supplier if the decision-maker considers that the supplier or a connected person has engaged in professional misconduct which brings into question the supplier’s integrity.
(2) A discretionary exclusion ground applies to a supplier if a court, regulator or other authority has ruled that the supplier or connected person has engaged in such professional misconduct.
(3) “Professional misconduct” includes conduct involving—
(a) dishonesty;
(b) impropriety;
(c) a serious breach of ethical or professional standards applicable to the supplier (whether those standards are mandatory or not).
Breach of contract and poor performance
12 (1) A discretionary exclusion ground applies to a supplier if—
(a) the supplier has breached a relevant contract, and
(b) the breach was sufficiently serious.
(2) A discretionary exclusion ground applies to a supplier if—
(a) a court has ruled that the supplier breached a relevant contract, and
(b) the breach was sufficiently serious.
(3) A discretionary exclusion ground applies to a supplier if the supplier—
(a) has not performed a relevant contract to the regulated authority’s satisfaction,
(b) was given proper opportunity to improve performance, and
(c) failed to do so.
(4) A discretionary exclusion ground applies to a supplier if a contracting authority has published information under section 71(5) in respect of the supplier (information concerning either breach or poor performance).
(5) For the purposes of this paragraph, a breach of a contract is “sufficiently serious” if it results in—
(a) termination (or partial termination) of the contract,
(b) the award of damages,
(c) a settlement agreement between the supplier and the regulated authority.
(6) In this paragraph—
“regulated authority” means—
(a) a contracting authority,
(b) another public authority, or
(c) an authority outside the United Kingdom that the decision- maker considers to be equivalent;
“relevant contract” means a contract to which a regulated authority is party.
Acting improperly in procurement
13 (1) A discretionary exclusion ground applies to a supplier if a decision-maker considers that—
(a) the supplier has acted improperly in relation to any procurement, and
(b) in so doing, the supplier put itself at an unfair advantage in relation to the award of a public contract.
(2) A supplier might act improperly in relation to a procurement by—
(a) failing to provide information requested by the contracting authority;
(b) providing information that is incomplete, inaccurate or misleading;
(c) accessing confidential information;
(d) unduly influencing the contracting authority’s decision-making.
National security
14 A discretionary exclusion ground applies to a supplier if a decision-maker determines that the supplier or a connected person poses a threat to the national security of the United Kingdom.
Excluded matters
15 (1) For the purpose of determining whether a discretionary exclusion ground applies to a supplier, the decision-maker must ignore any event that—
(a) the decision-maker was aware of before the five-year period ending with the date on which the determination is made, or
(b) a reasonably well-informed decision-maker in their position would have been aware of before that period.
This is subject to sub-paragraphs (2) and (4).
(2) In determining whether a discretionary exclusion ground within sub- paragraph (3) applies to a supplier, the decision-maker must also ignore any event that—
(a) the decision-maker was aware of before the three-year period ending with the date on which the determination is made, or
(b) a reasonably well-informed decision-maker in their position would have been aware of before that period.
(3) The grounds are those listed in—
(a) paragraphs 5 and 6 (insolvency, bankruptcy etc);
(b) paragraphs 7 to 10 (potential competition infringements);
(c) paragraph 11 (professional misconduct);
(d) paragraph 12(1) or (2) (breach of contract);
(e) paragraph 12(4) (adverse information about supplier published by contracting authority), where the information is published in relation to a breach of contract;
(f) paragraph 13 (acting improperly in a procurement).
(4) In determining whether a discretionary 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) paragraphs 1 to 3 (labour market misconduct);
(b) paragraph 4 (environmental misconduct);
(c) paragraph 12(3) (poor performance);
(d) paragraph 12(4) (adverse information about supplier published by contracting authority), where the information is not published in relation to a breach of contract;
(e) paragraph 14 (national security).
Definitions
16 In this Schedule—
“decision-maker”, in relation to a supplier, means a contracting authority or an appropriate authority that is considering whether a discretionary exclusion ground applies to the supplier;
“event” means a conviction, decision, ruling, failure or other event by virtue of which a discretionary exclusion ground would apply to a supplier;
“information” includes evidence verifying that information.
17 Other terms used in this Schedule and defined in Schedule 6 have the meanings given in that Schedule.
-
16 Preliminary market engagement
-
The Procurement Regulations 2024
-
Regulation 12 Supplier’s exclusion grounds information
View article
(1) Paragraphs (2) to (13) set out the supplier’s exclusion grounds information.
(2) Whether the supplier or a connected person has been convicted of an offence referred to in the following paragraphs of Schedule 6 to the PA 2023—
(a) paragraph 2 (corporate manslaughter or corporate homicide);
(b) paragraph 3 (terrorism);
(c) paragraphs 4 to 18 (theft, fraud, bribery etc);
(d) paragraphs 19 to 26 (labour market, slavery and human trafficking offences);
(e) paragraphs 27 to 28 (organised crime);
(f) paragraphs 29 to 31 (tax offences);
(g) paragraph 32 (cartel offence);
(h) paragraph 33 (ancillary offences);
(i) paragraph 34 (offences committed outside the United Kingdom).
(3) Whether the supplier or a connected person has been the subject of an event referred to in the following paragraphs of Schedule 6 to the PA 2023—
(a) paragraph 36 (penalties for transactions connected with VAT fraud and evasion of tax or duty);
(b) paragraph 37 (penalties payable for errors in tax documentation and failure to notify and certain VAT and excise wrongdoing);
(c) paragraph 38 (adjustments for tax arrangements that are abusive);
(d) paragraph 39 (finding by HMRC, in exercise of its powers in respect of VAT, of abusive practice);
(e) paragraph 40 (defeat in respect of notifiable tax arrangements);
(f) paragraph 41 (competition law infringements);
(g) paragraph 42 (equivalents outside the United Kingdom).
(4) Whether, in respect of paragraph 43 of Schedule 6 to the PA 2023 (failure to cooperate with investigation)—
(a) an appropriate authority has given the supplier or a connected person notice under section 60(6) of the PA 2023, and
(b) the supplier or connected person has failed to comply with the notice before the end of the period specified in the notice.
(5) Whether the supplier or a connected person has been the subject of an event referred to in the following paragraphs of Schedule 7 to the PA 2023—
(a) paragraph 1 (orders relating to labour market misconduct);
(b) paragraph 4 (offence relating to environmental misconduct);
(c) paragraph 5 (insolvency bankruptcy etc);
(d) paragraph 6 (suspension or ceasing to carry on all or a substantial part of business);
(e) paragraph 9 (infringement of Competition Act 1998, Chapter II prohibition or equivalent outside United Kingdom);
(f) paragraph 11(2) (court etc ruling of professional misconduct);
(g) paragraph 12 (breach of contract and poor performance).
(6) Whether, in respect of paragraph 2 of Schedule 7 to the PA 2023 (labour market misconduct), the supplier or a connected person—
(a) has been, or is being, investigated for conduct outside the United Kingdom that could result in an order mentioned in paragraph 1 of Schedule 7 to the PA 2023 being made if the conduct occurred in the United Kingdom, or
(b) has engaged in such conduct.
(7) Whether, in respect of paragraph 3 of Schedule 7 to the PA 2023 (labour market misconduct), the supplier or a connected person—
(a) has been, or is being, investigated for conduct (whether in or outside the United Kingdom) constituting (or that would, if it occurred in the United Kingdom, constitute) an offence referred to in—
(i) section 1, 2, 4 or 30 of the Modern Slavery Act 2015(1),
(ii) section 1, 4 or 32 of the Human Trafficking and Exploitation (Scotland) Act 2015(2), or
(iii) section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015(3), or paragraph 16 of Schedule 3 to that Act, or
(b) has engaged in such conduct.
(8) Whether, in respect of paragraph 7 of Schedule 7 to the PA 2023 (potential competition infringements)—
(a) the supplier or a connected person has been, or is being, investigated over whether an agreement or concerted practice to which the supplier or a connected person is party has infringed—
(i) the Chapter I prohibition (within the meaning given by section 2 of the Competition Act 1998(4)), or
(ii) any substantially similar prohibition applicable in a jurisdiction outside the United Kingdom, or
(b) an agreement or concerted practice to which the supplier or a connected person is party has infringed such prohibitions,
except in the circumstances mentioned in sub-paragraph (2) of paragraph 7.
(9) Whether, in respect of paragraph 8 of Schedule 7 to the PA 2023 (potential competition infringements), the supplier or a connected person—
(a) has been, or is being, investigated over whether the supplier or a connected person has infringed—
(i) the Chapter II prohibition (within the meaning given by section 18 of the Competition Act 1998), or
(ii) any substantially similar prohibition applicable in a jurisdiction outside the United Kingdom, or
(b) has infringed such prohibitions.
(10) Whether, in respect of paragraph 10 of Schedule 7 to the PA 2023 (potential competition law infringements), the supplier or a connected person—
(a) has been, or is being, investigated for conduct constituting—
(i) an offence under section 188 of the Enterprise Act 2002 (cartel offence)(5), or
(ii) a substantially similar offence under the law of a country or territory outside the United Kingdom, or
(b) has engaged in such conduct, except in the circumstances mentioned in sub-paragraph (2) of paragraph 10.
(11) Whether, in respect of paragraph 11 of Schedule 7 to the PA 2023 (professional misconduct), the supplier or a connected person—
(a) has been, or is being, investigated for professional misconduct which brings into question the supplier’s integrity, or
(b) has engaged in such misconduct.
(12) Whether, in respect of paragraph 13 of Schedule 7 to the PA 2023, the supplier or a connected person—
(a) has been, or is being, investigated over whether the supplier acted improperly in relation to any procurement, and in so doing, put itself at an unfair advantage in relation to the award of a public contract, or
(b) has acted improperly in that way.
(13) If the supplier or one or more connected persons has been the subject of an event mentioned in paragraphs (2) to (12), the following information in respect of each person who has been the subject of an event—
(a) a short description of the event,
(b) the name of the person who is the subject of the event,
(c) the person’s name, contact postal address and email address,
(d) in the case of a conviction or other event where there is a recorded decision of a public authority which is the authoritative basis for the conviction or other event—
(i) a link to the web page where the decision can be accessed, or
(ii) a copy of the decision,
(e) any evidence that the person who is the subject of the event—
(i) took the event seriously, for example by paying any fine or compensation,
(ii) took steps to prevent the event occurring again, for example by changing staff or management, or putting procedures or training in place, and
(iii) committed to taking further preventative steps, where appropriate, and
(f) if the circumstances which led to the event have ended, the date when they ended.
(14) For the meaning of “event”—
(a) in relation to a provision of Schedule 6 to the PA 2023, see paragraph 45 of that Schedule;
(b) in relation to a provision of Schedule 7 to the PA 2023, see paragraph 16 of that Schedule.
-
Regulation 12 Supplier’s exclusion grounds information
-
Cabinet Office Guidance: Exclusions
Updated 20 November 2025
What are exclusions?
1. Fundamental to the new procurement regime is ensuring fair and open competition and treating suppliers equally. Contracting authorities should be confident that suppliers taking part in their procurements and delivering their contracts are reliable. Contracting authorities should use conditions of participation to satisfy themselves that suppliers have the legal and financial capacity and technical ability to deliver the specific goods, works or services involved.
2. Exclusion is a broad term used in this guidance to describe a number of different circumstances where suppliers are not permitted to participate in a covered procurement, to have their tender considered or to be awarded a public contract.
3. The exclusions regime enables, and where appropriate requires, the exclusion of suppliers where they pose particular risks to public procurement. It provides a framework within which contracting authorities must consider a supplier’s recent past behaviour and circumstances to determine whether it should be allowed to compete for or be awarded a public contract.
4. These risks fall into the following categories:
a. reliable delivery of public contracts: the risk that a supplier will fail to deliver contractual requirements, either through a breach of contract or inadequate performance. This does not relate to the supplier’s ability to deliver a particular requirement but rather that there is a general risk of failure to perform;
b. effective competition for public contracts: the risk that a procurement, including the assessment of exclusions, cannot be undertaken in accordance with the legal regime and in particular the procurement objectives in section 12 of the Procurement Act 2023 (Act);
c. public confidence in the honesty, integrity and probity of suppliers in the delivery of public contracts: the risk that public confidence may be undermined due to a supplier not acting in good faith;
d. protection of public funds: the risk that a supplier may incur additional costs for the public sector (and therefore the taxpayer) during the delivery of public contracts; and
e. protection of the public, the environment, national security interests and the rights of employees: the risk that a supplier may be a risk to these aspects which are considered particularly important in relation to suppliers to the public sector.
5. The exclusions regime is not intended to be a punishment for circumstances or past misconduct. The regime is also not imposed in order to have a deterrent effect on suppliers in future, although of course all suppliers to the public sector are expected not to engage in criminal activity or other misconduct. Exclusion is a purely risk-based approach centred on the specific risks posed by the supplier.
What is the legal framework that governs exclusions?
6. The Act covers exclusions in three main ways:
a. Sections 26 and 27 cover how the exclusion grounds must be considered and applied in different procurement procedures. Section 28 deals with excluding suppliers by reference to sub-contractors and section 29 applies where a contracting authority intends to exclude a supplier on a discretionary basis for national security reasons.
b. Sections 57 and 58 define the concepts of excluded supplier and excludable supplier. They also detail matters a contracting authority may have regard to when considering whether the circumstances giving rise to an exclusion ground are continuing or likely to occur again.
c. The mandatory exclusion grounds are set out in Schedule 6 and discretionary exclusion grounds in Schedule 7.
7. In addition to the exclusion grounds, the Act makes provision elsewhere for tenders to be disregarded on other grounds. These are outlined and cross-referred in sections 19(3), (9) and (10) and include disregarding tenders from suppliers that are not UK or treaty state suppliers, reserving public contracts to supported employment providers and qualifying public service mutuals under sections 32 and 33, and disregarding tenders from suppliers that are not members of a dynamic market under section 34. For further information see the guidance on treaty state suppliers, reserved contracts and dynamic markets.
8. The Act also requires a supplier to be treated as an excluded supplier in circumstances outside of the mandatory exclusion grounds. This is the case where:
a. the nature of a supplier’s involvement in preliminary market engagement means it has an unavoidable unfair advantage in the procurement under section 16;
b. where a supplier has acted improperly in the procurement under section 30; and
c. where a supplier has an unavoidable unfair advantage due to a conflict of interest in the procurement under section 82.
9. In summary, a tender from an excluded supplier or an excludable supplier must (for excluded suppliers) or may (for excludable suppliers) be disregarded in a competitive tendering procedure (see section 26). In addition, the supplier must (for excluded suppliers) or may (for excludable suppliers) be excluded from participating in, or progressing as part of a competitive flexible procedure (see section 27). ‘Progressing’ in the procedure could mean being permitted to continue in the procurement beyond the submission of requests to participate, submitting initial tenders, or any subsequent stage in the procedures.
What has changed?
10. The Act constitutes a significant refresh of the previous legislation and brings together a single exclusions regime replacing those currently set out in the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016 and the Defence and Security Public Contracts Regulations 2011.
11. Below is a high level overview of some of the broader changes to the exclusions regime:
a. introducing new mandatory exclusion grounds (included in the full list of grounds outlined in Annex 1) to expand the circumstances in which contracting authorities must exclude suppliers for convictions of certain offences and other certain serious misconduct;
b. introducing new discretionary exclusion grounds (also included in the full list of grounds outlined in Annex 1) in areas such as poor performance, labour misconduct and national security threats, enabling contracting authorities to take tougher action on underperforming suppliers and suppliers who pose unacceptable risks;
c. making the exclusion grounds UK-specific but also ensuring they apply to certain events which occur overseas and equivalent non-UK offences, regulatory rulings and other decisions;
d. creating a clearer set of rules outlining when a supplier must or may be excluded due to an exclusion ground applying to ‘connected persons’ (such as beneficial owners, directors, parent and subsidiary companies) or ‘associated persons’ (such as certain key sub-contractors) and making it clear that these apply to both mandatory and discretionary grounds;
e. giving contracting authorities greater flexibility to consider a range of evidence of ‘self-cleaning’ by suppliers in order to assess whether the circumstances giving rise to an exclusion ground are continuing or are likely to occur again; and
f. extending the time limit for consideration of relevant events for discretionary exclusion grounds to 5 years to match that of mandatory exclusion grounds.
Key points and policy intent
12. The Act sets out a list of mandatory and discretionary exclusion grounds and places a duty on contracting authorities to consider both sets of grounds for each procurement, as well as whether the circumstances are continuing or likely to occur again. Contracting authorities must exclude an excluded supplier and may exclude an excludable supplier.
Meaning of ‘excluded supplier’ and ‘excludable supplier’
13. Section 57 defines the concepts of ‘excluded supplier’ and ‘excludable supplier’. Although the definitions in section 57 refer to exclusion grounds applying to the supplier or an associated person, it is important to remember that many of the exclusion grounds themselves also apply where an event or circumstance has been determined or applies in relation to the supplier or a connected person (see Schedules 6 and 7 and paragraphs 41-45). Section 28 separately provides for exclusion of a supplier by reference to a sub-contractor.
14. A supplier is an ‘excluded supplier’ where the contracting authority considers, firstly, that a mandatory exclusion ground applies to the supplier (or where relevant a connected person) or an associated person and, secondly, that the circumstances giving rise to the exclusion ground are continuing or likely to occur again. A supplier will also be an excluded supplier where a Minister of the Crown has already determined this; i.e. where the supplier or an associated person is on the debarment list because of a mandatory exclusion ground.
15. A supplier is an ‘excludable supplier where the contracting authority considers, firstly, that a discretionary exclusion ground applies to the supplier (or where relevant a connected person) or an associated person and, secondly, that the circumstances giving rise to the exclusion ground are continuing or likely to occur again. A supplier will also be an excludable supplier where a Minister of the Crown has already determined this; i.e. where the supplier or an associated person is on the debarment list because of a discretionary exclusion ground.
16. In other words, the supplier will be an excluded supplier or an excludable supplier either where the contracting authority considers this to be the case in the context of a particular procurement or where the supplier or associated person is already listed on the debarment list.
What is the significance of debarment?
17. Debarment is a new mechanism under which a Minister of the Crown can put a supplier on the centrally-published debarment list if the Minister is satisfied that a supplier is an excluded supplier or an excludable supplier. The list will be managed by the Procurement Review Unit (PRU) and published on gov.uk. The debarment list must always be checked by contracting authorities when undertaking covered procurement.
18. Where a supplier is on the debarment list, other than in limited cases, contracting authorities must or may exclude that supplier from the procurement, depending on whether the exclusion ground for which the supplier has been put on the debarment list is mandatory or discretionary.
19. For more detail on debarment, please refer to the guidance on debarment.
Exceptions to the standard exclusions process
20. The general rules differ in two instances. Firstly, in covered procurements carried out by a private utility, an excluded supplier must be regarded as an excludable supplier. This means that a private utility can choose whether or not to exclude a supplier from a procurement for a ground that would result in a mandatory exclusion for all other contracting authorities, providing increased flexibility for private utilities regarding the exclusion of suppliers. For further information see the guidance on utilities contracts.
21. Secondly, for exclusions on the basis of the discretionary exclusion ground relating to national security in Schedule 7, paragraph 14, a contracting authority (other than a Minister of the Crown, government department or Corporate Officer of the House of Commons or Lords) may not exclude the supplier unless:
a. the contracting authority has notified a Minister of the Crown (in practice this must be a Cabinet Office minister who can be notified via the debarment gov.uk page) of its intention to do so; and
b. the Minister considers that the supplier is an excludable supplier on the basis of this exclusion ground and the tender should be disregarded or the supplier excluded.
22. There is also one difference in how the debarment list operates where the supplier is on the debarment list for the mandatory exclusion ground relating to national security in Schedule 6, paragraph 35. Unlike the other exclusion grounds, this entry on the debarment list may not be relevant to all covered procurements. For this ground to apply, the Minister must have determined that the supplier is a threat to national security in relation to contracts of a particular description or descriptions. Where a supplier is put on debarment list on this ground, the supplier is an excluded supplier only for procurements for those types of contracts. A type of contract might be described on the debarment list as a contract for the provision of particular types of goods, works or services, to particular types of locations, or awarded by particular types of contracting authorities. Contracting authorities must exclude suppliers listed on the debarment list in relation to this ground only for the specified type(s) of contracts.
The exclusion grounds
23. Schedule 6 of the Act sets out the mandatory exclusion grounds, which are the most serious, high risk scenarios. The grounds in Part 1 require a conviction of specific offences in the UK. They also cover convictions for an offence outside of the UK which would be an offence if it had been committed in the UK. For example, if a supplier is convicted of a fraud offence in another country, this will be a mandatory exclusion ground if that misconduct would have been an offence in the UK had it been conducted in the UK. Part 1 also includes ancillary offences, such as aiding and abetting.
24. The grounds in Part 2 do not require a conviction for an offence and cover national security threats in relation to particular contracts and certain tax misconduct and competition law infringements. The tax misconduct and competition law infringement grounds include misconduct and infringements that occurred outside of the UK. Part 2 also includes failure to cooperate with a debarment investigation as a mandatory exclusion ground, which only a Minister of the Crown can determine.
25. Schedule 7 of the Act sets out the discretionary exclusion grounds, which mostly do not require a conviction but represent situations which may pose unacceptable risks. These cover a broad range of situations, such as insolvency, potential competition law infringements, professional misconduct, breach of contract and poor performance, general national security threats, as well as misconduct in areas like labour and the environment. The grounds in Schedule 7 cover situations where misconduct has occurred outside of the UK. They also include a discretionary exclusion ground where the supplier has acted improperly in another procurement.
26. The full list of mandatory and discretionary exclusion grounds are set out in Annex 1.
Time periods
27. As the purpose of the exclusions regime is not to punish suppliers for past misconduct but rather to safeguard against unacceptable risks, Schedule 6 prevents consideration of convictions, regulatory decisions, events or conduct which occurred more than 5 years ago for the mandatory exclusion grounds. Schedule 7 prevents consideration of events which the contracting authority was aware of (or which a reasonably well-informed decision-maker in their position would have been aware of) more than 5 years ago for the discretionary exclusion grounds. In this guidance, for brevity, the term ‘event occurred’ is used for both. For mandatory exclusion grounds the legal test is when the conviction, decision, ruling, failure or other event occurred, whereas for discretionary exclusion grounds the test is when the contracting authority was aware of the event or a reasonably well-informed decision-maker in the contracting authority’s position would have been aware of the event. Where an event occurred longer than 5 years ago, it is not considered to give rise to the risks the regime is seeking to mitigate against.
28. The 5 year period is not a time period for exclusion as such; but if the event occurred longer than 5 years ago, then the supplier is no longer at risk of exclusion in relation to that event.
29. To avoid suppliers being subject to potential exclusion action based on events which occurred prior to the relevant provisions in the Act coming into force where the exclusion grounds are new or were subject to a 3 year time period in previous legislation, Schedules 6 and 7 provide additional rules on time periods (in addition to the 5 year rule previously outlined):
a. For exclusion grounds which are new (as outlined in Schedule 6, paragraph 44(3) and Schedule 7, paragraph 15(4)), events which occurred before the Schedules came into force cannot be considered. For example, corporate manslaughter is a new mandatory exclusion ground and serious labour misconduct is a new discretionary exclusion ground so a corporate manslaughter conviction or labour market misconduct that occurred before the exclusions regime came into force cannot be considered.
b. For exclusion grounds which are the same as, or substantially similar to, a discretionary exclusion ground under the previous legislation (as outlined in Schedule 6, paragraph 44(4) and Schedule 7, paragraph 15(3)), events which occurred more than 3 years before the Schedules come into force cannot be considered. For example, professional misconduct is similar to the discretionary exclusion ground of grave professional misconduct under the previous legislation with a 3 year time limit, therefore under the Act such misconduct that occurred prior to 3 years before the Act comes into effect cannot be considered.
Individuals and entities connected to or associated with the supplier
30. For a contracting authority to be satisfied that a supplier should be allowed to participate in a procurement and potentially awarded a contract, it should also consider whether the exclusion grounds apply to certain individuals or entities:
a. with significant influence or control over the supplier;
b. which the supplier has significant influence or control over; and
c. which have certain associations with the supplier.
31. The exclusion grounds indicate particular risks exist; thus, if they apply to a relevant individual or legal entity as mentioned above, it may mean that the supplier poses such risks through association or connection.
32. Significant influence or control is not limited to those who have full control or influence over the supplier or over which the supplier has full control or influence, nor is association as broad as every individual or entity associated with the supplier. The Act provides for two categories of persons which must be considered with regard to most exclusions: associated persons and connected persons. It also provides for a third category which is treated slightly differently: sub-contractors.
Associated persons
33. A supplier may be an excluded supplier or an excludable supplier if any exclusion ground applies to either the supplier or an associated person (see the references to ‘associated person’ in section 57 of the Act) and if the circumstances giving rise to the ground are continuing or likely to occur again.
34. An associated person for these purposes is defined in section 26(4) as a person the supplier is relying on in order to satisfy the conditions of participation (other than a guarantor). Guarantors are included as an associated person for the conditions of participation provisions but not for the exclusions provisions, to avoid contracting authorities having to check entities such as banks for potential exclusion grounds.
35. Associated persons are likely to be within the first tier of sub-contractors, but may be further down the supply chain, for example in procurements of contracts with highly technical elements.
36. An example of an associated person for the purpose of exclusions is a specialist sub-contractor or a consortium member the supplier is relying on to deliver particular technical elements of the contract where the contracting authority has set demonstration of technical ability in this area as a condition of participation.
37. For example, a cleaning supplier bidding for an integrated facilities management contract which includes both soft (e.g. cleaning) and hard (e.g. buildings maintenance) services, might need to rely on a specialist buildings maintenance supplier in order to meet conditions of participation relating to that aspect of the service. The cleaning supplier could structure its bid either as a consortium, jointly bidding with the buildings maintenance supplier, or with the cleaning supplier as the prime supplier using the buildings maintenance supplier as a sub-contractor. In either case the buildings maintenance supplier would be an associated person. It is worth noting that not every sub-contractor will be an associated person. Other sub-contractors might be used to perform all or part of the public contract. If these are not relied on by the supplier to meet conditions of the participation they will not be associated persons. In the integrated facilities management example, depending on the conditions of participation set by the contracting authority, an ‘other sub-contractor’ might be a security services supplier that provides security staff.
38. A supplier can also be an excluded or excludable supplier by virtue of a connected person (see paragraphs 41-45 below) of an associated person. For example, a director of an associated person of the supplier.
39. If a supplier is an excluded supplier or an excludable supplier by virtue of an associated person (and the circumstances giving rise to the exclusion ground are continuing or likely to occur again), the supplier must be given the opportunity to replace the associated person before being excluded.
40. Contracting authorities may wish to include within their tender documents the process to be followed if the supplier is determined to be an excluded supplier or an excludable supplier by virtue of an associated person. A re-assessment of the tender should be done in a way that avoids any unfair disadvantage to other suppliers or any changes to the tender beyond those directly linked to the replacement of the associated person.
Connected persons
41. A supplier may be an excluded supplier or an excludable supplier if certain exclusion grounds apply to a connected person and if the circumstances giving rise to the ground are continuing or likely to occur again. For example, a supplier may be an excluded supplier if any offence in Schedule 6, Part 1 has been committed by a connected person and the circumstances giving rise to that ground are continuing or are likely to occur again.
42. A connected person is defined in Schedule 6 of the Act. In summary, it covers:
a. persons with significant influence or control over the supplier or persons over which the supplier has significant influence or control, including for example majority shareholders;
b. directors and shadow directors;
c. parent and subsidiary companies. (Sister companies of the supplier, i.e. a company with the same parent, are not connected persons unless they fall within one of the other categories of connected persons);
d. predecessor companies (companies which have become insolvent and ceased to trade and the business has effectively been transferred to the supplier); and
e. other persons who can reasonably be considered to stand in an equivalent position to the above categories.
43. Connected persons include those who exercise (or have a right to exercise) significant influence or control over the supplier as well as those over which the supplier exercises (or has the right to exercise) significant influence or control.
44. Where a supplier is an excludable supplier because of the misconduct of a connected person, contracting authorities may factor in the strength of the connection between the connected person and the supplier when exercising their discretion on whether or not to exclude. Where the connection is weak, this might suggest that the risk of misconduct arising in the procurement or the delivery of the contract is lower and therefore the situation is less serious, meaning it may be appropriate to exercise discretion to permit the supplier to continue in the procurement.
45. Excluding a supplier on the basis of connected persons is different from associated persons and sub-contractors because it cannot be replaced for the particular procurement in the same way as entities in these other categories can. This means that there is no requirement to give a supplier a reasonable opportunity to replace a connected person before exclusion.
Sub-contractors
46. Contracting authorities must ask for details of all sub-contractors a supplier intends to use as part of the procurement (as required by section 28(1)(a) of the Act). This is not restricted to sub-contractors that the supplier is relying on to meet conditions of participation (who will in any event be associated persons) but applies to all sub-contractors (of all tiers) the supplier intends to sub-contract the performance of all or part of the contract to.
47. The supplier must provide an exhaustive list of all their intended sub-contractors in the supply chain proposed for the contract. However, this does not include every supplier with whom the supplier has a commercial relationship; for example, an existing supply contract where there is no intention to specifically sub-contract all or part of the contract to that supplier. If a sub-contractor is unknown at the start of the procedure (or brought in during it), this should be made clear by the supplier and relevant details of the sub-contractor should be provided once their identity and role is confirmed. This information should be shared with the contracting authority as soon as possible and at least by final tenders. In a competitive flexible procedure, which is likely to include multiple stages, it is best practice to seek updated details of sub-contractors at each stage.
48. A contracting authority must check whether any of the intended sub-contractors are on the debarment list (as required by section 28(1)(b) of the Act). In addition, a contracting authority should ensure that the successful supplier will not contract with a sub-contractor that is on the debarment list, at least not without the contracting authority’s prior written consent where the sub-contractor is on the debarment list on the basis of a discretionary exclusion ground, during the term of the contract for the purpose of delivering the contract. This should be included as a restriction in the contract to be awarded.
49. The contracting authority may also ask suppliers for further information to determine whether any of the intended sub-contractors are excluded or excludable suppliers. This should be done for categories of sub-contractors, such as tier 1 sub-contractors only, or for sub-contractors that are providing key services or supplies, or if particular supply chain risks are identified for the procurement, particularly in high risk areas or industries. These risks can be considered regardless of how far down the supply chain they are.
50. As with associated persons, if a supplier is an excluded supplier or an excludable supplier by virtue of a sub-contractor, the supplier must be given the opportunity to replace the sub-contractor before being excluded. If the supplier suggests a replacement, a contracting authority must check that the newly-proposed sub-contractor is not on the debarment list and, if the sub-contractor is within the relevant category of sub-contractors for which the contracting authority has chosen to consider exclusions, the contracting authority should also check that the sub-contractor is not subject to an exclusion ground along with any relevant self-cleaning evidence. The contracting authority should also check that the supplier still meets any conditions of participation following the proposed change.
51. As with associated persons, contracting authorities may wish to include within their tender documents the process to be followed if the supplier is determined to be an excluded supplier or an excludable supplier by virtue of a sub-contractor; for example the time period allowed at tender stage to find an alternative, that no changes should be made to the tender other than to reflect a different sub-contractor, and how any changes will be assessed. A re-assessment of the tender must be done in a way that avoids any unfair disadvantage to other suppliers or any changes to the tender beyond those directly linked to the replacement of the associated person.
52. A supplier can also be considered an excluded or excludable supplier by virtue of a connected person of a sub-contractor.
Self-cleaning
53. When establishing whether the circumstances giving rise to the application of an exclusion ground are continuing or likely to occur again, contracting authorities should look at a range of evidence and factors, as set out in section 58. These include:
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 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; and
e. any other evidence, explanation or factor that the authority considers appropriate.
54. In the context of self-cleaning, ‘circumstances giving rise to the application of an exclusion ground’ includes the underlying issues in addition to the specific misconduct. For instance, underlying issues might include a toxic office culture, due diligence failures, a lack of a compliance function or inappropriate governance mechanisms.
55. When considering whether the circumstances are likely to ‘occur again’, the recurrence could be at any point in the future. However, given the purpose of the exclusions regime is to minimise risks to public contracts, when considering this in the context of a particular procurement, contracting authorities may wish to focus on the risk of recurrence within the lifetime of the contract. This does not mean that there must be a risk of recurrence in connection with the delivery of the contract. The circumstances could re-occur elsewhere in the supplier’s operations (or a connected person’s, associated person’s or sub-contractor’s) operations and still be relevant to this judgement.
56. What constitutes good self cleaning in any particular situation will be specific to the circumstances giving rise to that exclusion ground. When seeking to determine whether circumstances are continuing or likely to occur again, contracting authorities should consider what expectations (if any) are set by the appropriate authority if one exists, such as the Environment Agency for environmental misconduct or the Competition and Markets Authority (CMA) for competition infringements.
57. Contracting authorities should also factor in the level and nature of co-operation with appropriate authorities when seeking to determine whether the supplier has ‘taken the circumstances seriously’. For example, the Serious Fraud Office (SFO) corporate co-operation guidance provides a set of principles that may be used to help assess cooperation and defines co-operation as “providing assistance to the [relevant authority] that goes above and beyond what the law requires.”
58. Before deciding whether a supplier is an excluded supplier or an excludable supplier, the contracting authority must give the supplier a reasonable opportunity to make representations, including, for example, as to whether exclusion grounds apply, and to provide evidence that the circumstances giving rise to the exclusion ground are not continuing or likely to occur again (by reference to the information set out in the bulleted list above).
59. Where an exclusion ground applies because of the circumstances or misconduct of a connected person, associated person or sub-contractor, the self-cleaning evidence should relate to that individual or entity as well as any measures put in place by the supplier, including to prevent further misconduct by the relevant person and more generally. For example, a supplier may have put in place more robust training, due diligence and oversight arrangements for group companies following a subsidiary company being engaged in professional misconduct.
60. When asking for particular evidence or information, the contracting authority must ensure such requests are proportionate based on the nature and complexity of the matters being assessed, and the design of the procurement. For example, a supplier could be asked for details of a business-wide corporate renewal programme where there has been professional misconduct, whereas a summary of changes made to payroll systems and procedures may be sufficient where there has been a breach of national minimum wage laws. Contracting authorities should consider when it would be appropriate for suppliers to submit evidence and information, having regard to the procurement objectives and what is required to ensure the proper conduct of the procurement. For example, it may not be proportionate to require all evidence at the participation stage of a competitive flexible procedure.
61. It is for the supplier to demonstrate it has self-cleaned and this must be to the satisfaction of the contracting authority, taking into account the gravity and particular circumstances giving rise to the ground for exclusion. In order to conclude that a supplier is an excluded supplier or an excludable supplier, the contracting authority does not need to be satisfied that the particular situation will occur again but rather that the circumstances leading to it are continuing or are likely to occur again. Suppliers can be asked to pay for an independent audit of self-cleaning action if the contracting authority deems this proportionate, reasonable and necessary.
62. Where a supplier has been investigated for a debarment, but not been placed on the debarment list for a mandatory or discretionary exclusion ground, a debarment investigation report will be available which may include a description of the circumstances and evidence considered as part of that investigation. This is a good example of additional evidence that a contracting authority could consider as outlined in section 58(1)(e) of the Act.
Factoring time elapsed in self-cleaning assessments
63. In general, the more time that has elapsed since the misconduct or circumstances occurred, the less likely they are to occur again. However, time elapsed by itself should not be sufficient to demonstrate that misconduct is unlikely to occur again; any other relevant evidence should also be considered.
64. Evidence that misconduct or circumstances would have arisen but were prevented from occuring, for example by measures put in place by the supplier, should be taken into account. However, time elapsed might not be sufficient evidence if there were no opportunities for the circumstances to arise in that time.
Factoring future commitments into self-cleaning assessments
65. Future commitments should not be given equal weight to actions already taken. In the absence of any concrete action, commitments alone should not be sufficient evidence that misconduct is unlikely to occur again.
66. Any future commitments provided should be SMART, (specific, measurable, achievable and time-bound). Contracting authorities should ensure there is a robust mechanism for monitoring the implementation of commitments made, especially if these are a significant factor in the decision that a supplier is not an excluded or excludable supplier and the supplier is subsequently awarded the contract. For example, this might include the appointment of an independent auditing firm, paid for by the supplier, to verify steps taken, or regular reporting to the contracting authority.
Verifying exclusions
67. Contracting authorities should ask suppliers for the information listed below to be submitted with their requests to participate in a competitive flexible procedure or with their tenders in an open procedure:
a. basic information about themselves and their connected persons and associated persons;
b. self-declarations as to whether any mandatory or discretionary exclusion grounds apply to the supplier, connected persons or associated persons; and
c. where the supplier self-declares that an exclusion ground applies:
i. which exclusion ground applies;
ii. a short description of the event giving rise to the exclusion ground;
iii. the name of the person who is the subject of the event;
iv. the person’s name, contact postal address and email address; and
v. in the case of a conviction or other event where there is a recorded decision of a public authority which is the authoritative basis for the conviction or other event:
1. a link to the webpage where the decision can be accessed; or
2. a copy of the decision;
3. any evidence that the person who is the subject of the event:
a. took the event seriously, for example by paying any fine or compensation;
b. took steps to prevent the event occurring again, for example by changing staff or management, or putting procedures or training in place;
c. committed to take further preventative steps, where appropriate; and
4. if the circumstances which led to the event have ended, the date when they ended.
68. Contracting authorities are not required to ask suppliers to self-declare the national security discretionary exclusion ground; this should be investigated by contracting authorities as part of their standard due diligence checks, other than for Government departments and the Corporate Officers of the House of Commons and House of Lords, and only used following a referral to NSUP.
69. Contracting authorities must always request details of intended sub-contractors (of all tiers) in each procurement so that checks can be made that sub-contractors are not on the debarment list. Contracting authorities may also wish to request further information about sub-contractors in order to themselves consider exclusions (in addition to checking the debarment list) as explained above.
70. Information about the supplier and connected persons must be provided by the supplier via the central digital platform before the end of the tendering period but can be provided prior to that either directly to the contracting authority or via the platform. For example, in a competitive flexible procedure, the contracting authority will need this information in order to consider exclusions at the invitation to participate stage and can obtain this information directly or by asking suppliers to register on the platform and provide it via the platform at this stage. It is also best practice to encourage associated persons and sub-contractors to register on the central digital platform to gain a unique identifier so that the supplier can provide their information via the platform as well, but this information can also be provided directly by the supplier and not via the platform. Before the end of the tendering period in open and competitive flexible procedures (or prior to contract award for a direct award or a competitive selection process under a framework), contracting authorities must seek confirmation from the supplier that it has:
a. registered on the central digital platform;
b. submitted the above information about itself and connected persons to the central digital platform; and
c. shared that information with the contracting authority via the central digital platform.
71. It is best practice to seek confirmation that any information provided directly to the contracting authority that has not been provided via the central digital platform is also up-to-date.
72. Contracting authorities should undertake further due diligence, particularly where the contract raises particular risks, such as cartel behaviour in the construction industry or risks of modern slavery. There are a variety of resources and tools available to assist with contracting authorities’ due diligence including Companies House and Spotlight, government’s online automated due-diligence tool which includes insights from Dun and Bradstreet. The Spotlight tool is available on gov.uk.
73. Contracting authorities may also wish to undertake further due diligence for other reasons, for example if they are aware or suspicious of misconduct from publicly-available information but the supplier has not provided this information.
74. Contracting authorities may seek information from relevant regulatory bodies. Requests for evidence should be limited to cases where the conduct gives rise to an exclusion ground.
Discretion to exclude
75. Where a supplier is an excludable supplier, contracting authorities have a discretion to exclude the supplier. In exercising this discretion, contracting authorities are reminded of the duty to have regard to the objectives set out in section 12 of the Act including delivering value for money, maximising public benefit, information sharing and acting (and being seen to act) with integrity. More generally, the risk posed by the circumstances or misconduct giving rise to the exclusion ground should be considered and whether this outweighs the public interest in allowing the supplier to participate in the procurement.
76. Contracting authorities should consider all relevant factors when exercising discretion to exclude a supplier, or not to exclude a supplier. This will depend on the particular circumstances, but an example of where it may be appropriate to allow a supplier to continue to participate in the procurement or to be awarded a contract is where the type of contract is such that the relevant risk is unlikely to arise in relation to the contract even if the circumstances giving rise to the exclusion ground are likely to occur again.
77. Discretion should not be used:
a. to avoid a decision on whether an exclusion ground applies or looking at self-cleaning evidence. Discretion only arises when a contracting authority considers that a discretionary exclusion ground applies and that the circumstances giving rise to the ground are continuing or are likely to occur again (i.e. having considered self-cleaning evidence); or
b. to take into account irrelevant factors such as the cost of the supplier’s tender. The cost of the supplier’s tender (and other matters relating to the tender) should be considered as part of the assessment of tenders.
78. The factors that may be relevant in any particular situation include (but are not limited to):
a. factors relating to the supplier, such as the seriousness of the circumstances or misconduct giving rise to the exclusion ground and the time elapsed since the circumstances or misconduct in question; and
b. factors relevant to the procurement, such as whether there are other suitable suppliers, the impact of exclusion on public services and whether the risks posed by the supplier due to being an excludable supplier are likely to transpire in the delivery of the particular contract. For example, in a procurement for IT support services, a contracting authority may decide not to exclude a supplier for environmental misconduct relating to its operations overseas in a different sector.
79. Contracting authorities should not operate a policy to always exclude, or to never exclude, on particular exclusion grounds. Case by case decisions must be made on the basis of the circumstances of each procurement and consideration of all relevant factors at that time.
80. Contracting authorities also have a discretion under section 41(2) of the Act to directly award a contract to an excluded supplier where a direct award justification applies and there is an overriding public interest in awarding that contract to that supplier. There is an overriding public interest in this context if one of the following circumstances listed in section 41(5) applies:
a. the procurement is essential for the construction or maintenance of critical national infrastructure. This means those critical elements of infrastructure (namely assets, facilities, systems, networks or processes and the essential workers that operate and facilitate them), the loss or compromise of which could result in:
i. major detrimental impact on the availability, integrity or delivery of essential services (including those services whose integrity, if compromised, could result in significant loss of life or casualties) taking into account significant economic or social impacts; and/or
ii. significant impact on national security, national defence, or the functioning of the state;
b. the procurement is in a strategically important sector for the UK. Strategically important sectors are those that are vital to the defence and security of the UK’s national interests. These are discussed in detail in the Defence and Security Industrial Strategy;
c. failure to award the contract to the excluded supplier would prejudice the conduct of military or security operations or the effective operation of the armed forces or intelligence services; and
d. there is a situation of extreme and unavoidable urgency and the contract cannot be awarded to another supplier.
81. If there is evidence to suggest any of the discretionary exclusion grounds may apply, the burden is on the contracting authority to be satisfied that the relevant conduct or circumstances have occurred. A contracting authority can rely on a wide range of available information, such as the examples listed below. In all cases, the evidence must be specific to the relevant supplier (or other relevant person’s conduct or circumstances). There is no single type of evidence that would automatically satisfy the evidentiary requirements. However, the more reliable the evidence, the more likely it is that the evidence will be sufficient.
82. A contracting authorities conducting due diligence (for example where it is aware of or have a suspicion that relevant misconduct may be a particular risk for that procurement or have occurred) is encouraged to review a wide range of information on suppliers, including from the sources below:
a. international debarment lists (e.g. US Customs and Border Protection’s Withhold Release Orders or US Department of Commerce’s Bureau of Industry and Security Entity List);
b. international policy institutes (e.g. Australian Strategic Policy Institute);
c. government business registries;
d. local government reports;
e. company websites;
f. NGOs or independent research organisations;
g. peer-reviewed academic articles; and
h. media reports.
Operation of exclusions for dynamic markets and frameworks
83. Dynamic markets are open lists of suppliers that have met certain conditions to be eligible to tender for public contracts in competitive flexible procedures open only to members of the market. Frameworks are themselves public contracts which provide for the award of future contracts to suppliers who are on the framework by direct award or a competitive selection process.
84. An excluded supplier must not be admitted to a dynamic market, whilst a contracting authority has discretion not to admit an excludable supplier (see section 36 of the Act). When undertaking a competitive flexible procedure restricted to members of a dynamic market, the same rules apply as to a normal competitive flexible procedure. In other words, tenders must be disregarded where a supplier is an excluded supplier and may be disregarded where a supplier is an excludable supplier. Depending on whether the supplier is an excluded supplier or an excludable supplier, suppliers must or may be excluded from participating in or progressing as part of the procedure.
85. A supplier must be removed from a dynamic market if it is on the debarment list on the basis of a mandatory exclusion ground and the supplier may be removed if it is an excluded supplier (but not by virtue of being on the debarment list on this basis) or an excludable supplier (see section 37 of the Act). For example, if a contracting authority managing a dynamic market determines that a supplier is an excluded supplier, it has a discretion to remove them from the dynamic market or allow them to remain there. If the supplier remains on the market, it will not be able to compete for contracts (and should be excluded by contracting authorities if it tries to do so) but keeping them on the market may be a way for the contracting authority to incentivise the supplier to undertake self-cleaning.
86. When a framework is awarded, the rules on disregarding tenders and excluding suppliers from participating in or progressing as part of the procurement procedure apply as normal. A framework must not allow for the award of a contract to an excluded supplier (see section 45) but may allow for the award of a contract to an excludable supplier. The contracting authorities who establish frameworks should consider on a regular basis whether each supplier on a framework has become an excluded supplier or an excludable supplier. Any contracting authority awarding a public contract under a framework must also consider whether a supplier is an excluded supplier, and should consider whether a supplier is an excludable supplier, prior to the award of each public contract under the framework.
Applying the exclusions provisions during the procurement process
87. Preliminary market engagement: Contracting authorities should use this opportunity to familiarise or remind suppliers of the exclusion grounds. All exclusion grounds must be considered for all covered procurements but contracting authorities can also use preliminary market engagement to focus due diligence efforts on a supplier by understanding if there are exclusion grounds that may be particularly relevant. For example:
a. if a supplier has an overseas supply chain for low cost goods, there may be a higher likelihood of labour market misconduct; or
b. if a supplier is operating in the agriculture sector, the environmental misconduct grounds may be particularly relevant.
88. Supplier information: At the start of a competitive flexible procedure, contracting authorities must check the debarment list on gov.uk. Each supplier’s exclusion grounds information either provided directly by the supplier or provided via the central digital platform must also be checked, including details of connected persons, associated persons and sub-contractors (where relevant) and any additional information requested by the contracting authority at that stage. Contracting authorities may undertake the same check at some or all stages of a competitive flexible procedure. The check must be made when assessing final tenders in both competitive flexible and open procedures.
89. Identification of an excluded supplier or an excludable supplier: If the contracting authority determines that the supplier is an excluded supplier or an excludable supplier at any point in the procedure prior to assessment of tenders, the supplier should not be allowed to continue with the procedure if the supplier is an excluded supplier or, if the supplier is an excludable supplier, consideration should be given as to whether to allow the supplier to continue or not. At the point of assessment of tenders, the contract cannot be awarded to an excluded supplier and consideration should be given to awarding to an excludable supplier. Contracting authorities should provide suppliers with the reasons for any exclusion.
90. Excluding on the basis of an associated person or sub-contractor: If the supplier is an excluded supplier or an excludable supplier by virtue of an associated person or an intended sub-contractor, the supplier must be given the opportunity to replace that person or sub-contractor before they are excluded.
91. Reporting: Contracting authorities must notify the appropriate authority (for authorities other than devolved Welsh authorities or transferred Northern Ireland authorities, this is a Minister of the Crown, via the PRU) within 30 days of excluding a supplier. Exclusion can be reported to the PRU via gov.uk.
92. Contracting authorities may wish to consider the implications of a supplier being investigated or added to the debarment list during a live procurement, particularly if the decision is taken towards the end of a competitive tendering procedure and consider setting out in the tender documentation how it will progress to contract award in such a circumstance.
Exclusions post-contract award
93. If a supplier (or a sub-contractor in respect of which the contracting authority requested information during the procurement procedure for the purpose of determining whether the sub-contractor was an excluded supplier or an excludable supplier under section 28(2)) is found to be an excluded supplier or an excludable supplier during the term of a public contract (including a framework), the contracting authority should decide whether to terminate the contract with that supplier. Section 78 of the Act implies a right to terminate in these circumstances into each public contract, and section 48 provides for the same in relation to each framework.
94. The implied right in section 78(2)(c) allows for termination where the contracting authority finds out that a sub-contractor was an excluded supplier or an excludable supplier at the point of award of the contract but the contracting authority did not know that the supplier intended to sub-contract the performance of all or part of the contract (see section 78(4)), or that the sub-contractor was an excluded or excludable supplier (see sections 78(5) and (6)), in all cases despite seeking the relevant information and making the necessary checks during the procurement procedure. For example, new information may come to light that the contracting authority was not aware of during the procurement procedure. The implied right in section 78(2)(c) also allows for termination where a sub-contractor becomes an excluded or an excludable supplier after contract award.
95. The implied right in section 78(2)(b) allows for termination if the supplier (including by virtue of an associated person) becomes an excluded supplier or an excludable supplier after being awarded the contract. For example, the supplier may be convicted of an offence or may commit misconduct which constitutes an exclusion ground. Section 78(11) ensures that this implied right does not apply where the supplier was excludable during the procurement but the contracting authority exercised their discretion so as not to exclude them. Contracting authorities cannot re-visit that decision without there being any change in circumstances.
96. The right to terminate is discretionary, even where the supplier is an excluded supplier (i.e. subject to a mandatory exclusion ground). Before terminating a contract because a sub-contractor is an excluded supplier or an excludable supplier, the contracting authority must give the supplier the opportunity to replace the sub-contractor.
97. Notwithstanding these implied terms, contracting authorities may wish to expressly replicate these implied terms in their contracts and may wish to include ancillary terms, for example, to provide for an orderly exit and payment of sums due. Contracting authorities may also wish to provide for processes on the replacement of sub-contractors who become an excluded supplier or an excludable supplier, including a right to approve such sub-contractors. It would be appropriate to refuse approval where the replacement sub-contractor is an excluded supplier and contracting authorities will want to allow themselves a right to refuse approval also where the replacement is an excludable supplier.
98. Contracting authorities should, as a matter of best practice, expressly include in their contracts that suppliers must notify them if it or any relevant sub-contractor that was checked during the procurement procedure becomes an excluded or excludable supplier (including where it is put on the debarment list during the term of the contract or by virtue of connected persons or associated persons). The implied right to terminate applies only to those sub-contractors in respect of which the contracting authority sought information in relation to exclusions during the procurement procedure and not to other sub-contractors. For example, if the contracting authority sought information about tier 1 sub-contractors only, then the implied right to terminate applies with respect to those tier 1 sub-contractors only.
99. Transparency of changes to a supplier’s connected persons once the contract has been awarded is also important, as it provides the contracting authority with visibility of individuals or entities that have influence or control over the supplier. Contracting authorities should therefore, as a matter of best practice, expressly include in their contracts a requirement that the supplier must notify them (within a specified timeframe) of any changes to their connected persons during the contract term. Non-compliance either through failing to notify within the specified timeframe or by providing information that is incomplete, inaccurate or misleading should be set out in the contract as constituting grounds for contract termination. These terms should be included expressly in contracts.
100. When exercising discretion on whether to terminate contracts in these situations, contracting authorities should consider factors including:
a. time elapsed on the contract;
b. time remaining in the contract;
c. the nature and relevance of the misconduct to the contract;
d. the impact of termination on public services; and
e. the cost of termination and re-procurement.
Reporting requirements when excluding a supplier
101. Contracting authorities must notify a relevant appropriate authority within 30 days of excluding a supplier.
a. For devolved Welsh authorities, the appropriate authority is Welsh Ministers.
b. If the contracting authority is a transferred Northern Ireland authority, the relevant authority is the Northern Ireland department that the contracting authority considers it most appropriate to notify.
c. In any other case, the relevant authority is a Minister of the Crown.
102. This reporting requirement also applies where a contracting authority notifies a supplier that it is an excluded supplier or an excludable supplier due to an associated person or sub-contractor and gives the supplier the opportunity to replace the associated person or sub-contractor. Similarly, it applies where a contracting authority has rejected an application from a supplier for membership of a dynamic market or has removed a supplier from a dynamic market.
103. A key purpose of these notification requirements is to allow appropriate authorities to consider whether they may wish to investigate the supplier for potential debarment. For that reason, notification is not required where the supplier is excluded on the basis it is on the debarment list, other than in respect of the mandatory exclusion ground for national security in Schedule 6, paragraph 35 of the Act. These notification requirements also do not apply for exclusion on the basis of the mandatory exclusion ground for failure to co-operate with a debarment investigation under Schedule 6, paragraph 43.
104. To notify a Minister of the Crown, contracting authorities must report each exclusion of a supplier to PRU via gov.uk. For the purposes of a centralised record of exclusions, Welsh and Northern Irish devolved authorities should report any exclusions to PRU as well as to the Welsh Ministers or Northern Ireland department (as appropriate).
What notices are linked to this aspect of the Act?
Transparency notice
105. The information in this notice about each supplier who is to be awarded a contract will include their unique identifier and, where the contract is being directly awarded to an excluded supplier because the contracting authority considers that there is an overriding public interest the contract to that supplier, the fact that it is an excluded supplier, the direct award justification, which exclusion ground applies and why the contracting authority believes there is an overriding public interest to award the contract to that supplier. When awarding to more than one supplier, the contracting authority will need to be clear about which supplier is an excluded supplier. See the guidance on direct award for more information.
106. This information will normally have been provided to the contracting authority by the supplier through the central digital platform as required by regulation 6 of the Procurement Regulations 2024 (the Regulations). The identifier and details that are entered in the notice should therefore correspond to the information the supplier has submitted.
Contract award notice
107. When publishing a contract award notice relating to a direct award to an excluded supplier, the information to be included in the contract award notice replicates the information that must be included in the transparency notice. See the guidance on contract award notices and standstill for more information.
Contract details notice
108. Regulation 35 of the Regulations sets out the information required to be included in a contract details notice published following a direct award.
109. Where a direct award has been made, contracting authorities must include in this notice whether the contract was awarded directly to a supplier that is an excluded supplier because the contracting authority considered there was an overriding public interest in awarding the contract to that supplier in accordance with section 41(2) of the Act. In this situation, contracting authorities must detail which circumstance in section 41(5) of the Act applies and an explanation of why the contracting authority considers that it applies. See the guidance on contract details notices for more information.
Contract termination notices
110. The contract termination notice is used to fulfil the breach provision in section 71(5) of the Act which requires certain information to be published where the contract is terminated in full as a result of a breach of contract. This ensures there is a public record of which suppliers are subject to the discretionary exclusion ground relating to breach of contract, primarily to make it easier for authorities to apply the ground, but also for transparency purposes. For all other circumstances relating to breach of contract, including partial termination of the contract, the contract performance notice must be used instead. This avoids the need for two notices to be published in respect of the same event. See the guidance on contract termination for more information.
What other guidance is of particular relevance to this topic area?
- Guidance on debarment
- Guidance on conditions of participation
- Guidance on direct award
- Guidance on competitive tendering procedures
- Guidance on contract termination
Annex 1: Ground-Specific Guidance
Summary of Schedule 6 – Mandatory Exclusion Grounds
1. Schedule 6 of the Act sets out the mandatory exclusion grounds, which are the most serious, high risk scenarios. These are broken down into Part 1 and Part 2.
2. The grounds in Part 1 apply to a supplier where the supplier or a connected person of the supplier has been convicted of specific offences. Only UK offences are listed but the grounds also apply if the supplier or a connected person of the supplier has been convicted of an offence outside of the UK which would have been one of the listed offences if it had been committed in the UK. Where equivalent or similar offences are covered by separate legislation in Scotland and Northern Ireland, these are also included in Schedule 6.
Specific offences
3. The specific offences in Part 1 are as follows:
a. Corporate manslaughter or corporate homicide: these offences apply where the way in which a relevant organisation’s activities are managed or organised causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
b. Terrorism: this covers a range of offences, which include offences relating to proscribed organisations, terrorist property, failure to disclose information about acts of terrorism, directing terrorism, possessing things and collecting information for the purposes of terrorism, eliciting information about members of armed forces etc., entering or remaining in a designated area and inciting terrorism outside the UK, as well as offences relating to the use of noxious substances or things and offences relating to encouragement of terrorism, preparation and training for terrorism, radioactive devices and material and nuclear facilities.
c. Theft, fraud, bribery etc: this includes offences of bribing another person, being bribed and bribing a foreign official, offences of bribery relating to elections and offences of blackmail, as well as offences of fraud and fraudulent trading. It also covers offences of theft, robbery, burglary and relating to stolen goods.
d. Labour market, slavery and human trafficking offences: this covers the most serious forms of labour abuse, which are those within the purview of the Director for Labour Market Enforcement, as well as modern slavery and human trafficking offences. It also covers offences relating to the carrying out of an employment agency or employment business, the offence of refusing or wilfully neglecting to pay the national minimum wage and gangmaster offences.
e. Organised crime: this covers the offence of participation in the activities of an organised crime group and the offence of agreeing with another person to become involved in serious organised crime.
f. Tax offences: this includes the offence of cheating the public revenue and the offence of fraudulent evasion of tax. Other misconduct in relation to tax which do not amount to criminal convictions are covered in Part 2 of Schedule 6.
g. Cartel offences: this applies where there has been a criminal cartel offence. A person commits the criminal cartel offence if they agree with at least one other person that two or more undertakings will engage in certain prohibited cartel arrangements, namely price fixing, market sharing, bid-rigging, and limiting output, subject to certain exclusions and defences. This offence applies only to individuals so would be relevant only to suppliers who are individuals and those categories of connected persons who are individuals.
h. Ancillary offences: these include aiding and abetting, encouraging or assisting crime, inciting crime and conspiring or attempting to commit a crime in relation to the listed offences are also covered.
4. The mandatory exclusion grounds in Part 2 do not require a conviction and are outlined below:
5. National security
a. A mandatory exclusion ground applies to a supplier in relation to contracts of a particular description where an appropriate authority determines that the supplier or a connected person poses a threat to the national security of the UK, and would pose such a threat in relation to public contracts of that description. An appropriate authority in this case is a Minister of the Crown, the Welsh Ministers or a Northern Ireland department when conducting an investigation which may lead to a Minister of the Crown putting a supplier on the debarment list.
b. This exclusion ground only applies where a Minister of the Crown has subsequently put the supplier on the debarment list in relation to particular types of contracts. This is set out in paragraph 35(3), which refers to an appropriate authority’s functions under the debarment provisions of the Act. These provisions only enable a Minister of the Crown to put a supplier on the debarment list and this ground cannot be relied on by a contracting authority where there has been no such entry.
6. Misconduct in relation to tax
a. The Act also includes as mandatory exclusion grounds certain tax non-compliance. These include where the supplier or connected person has:
i. been convicted of a common law offence of cheating the public revenue;
ii. been convicted of an offence of being knowingly concerned in or taking steps with a view to the fraudulent evasion of tax;
iii. been convicted of an offence under sections 45 or 46 of the Criminal Finance Act 2018 or failure to prevent facilitation of tax evasion;
iv. been liable to a penalty under section 69C of the VAT Act 1994 (transactions connected with VAT fraud) or section 25 of the Finance Act 2003 (evasion of tax or duty);
v. been liable to a deliberate penalty under Schedule 24 of the Finance Act 2007 (errors in tax documentation) or Schedule 41 of the Finance Act 2008 (failure to notify certain VAT and excise wrongdoing);
vi. been the subject of a successful challenge by HMRC in relation to tax arrangements under the General Anti-Abuse Rule (GAAR) or the Halifax Abuse Principle. A successful challenge could follow a ruling by the HMRC GAAR panel or HMRC issuing a decision using the HMRC Abuse Principle;
vii. incurred a defeat of an avoidance scheme which was, or should have been, notified under the Disclosure of Tax Avoidance Schemes framework (DOTAS) or the Disclosure of Avoidance Schemes for VAT and other Indirect Taxes (DASVOIT). This is determined by reference to the fact that a Scheme Reference Number (SRN) has been allocated to the supplier or connected person, which means the supplier (or connected person) will know that its arrangements are DOTAS/DASVOIT ones;
viii. been subject to a penalty or a decision by a regulator, court or other authority outside of the UK where that conduct would give rise to a penalty or decision in the UK if it had been committed in the UK; or
ix. had a tax advantage counteracted outside of the UK where it would have incurred a defeat of an avoidance scheme in the UK had the tax advantage arisen in respect of tax payable in the UK.
The trigger point for the supplier becoming an excluded supplier will be the point at which the supplier (or connected person)’s tax position is finalised, such as a successful challenge by HMRC and defeat of an avoidance scheme or where HMRC has determined a final penalty and all avenues of appeal have been exhausted.
7. Competition law infringements
a. A mandatory exclusion ground applies to a supplier if the CMA (or a concurrent regulator) has made a decision that there has been an infringement of the ‘Chapter I prohibition’ through participation in a cartel. Chapter I of the Competition Act 1998 prohibits agreements between undertakings, decisions by associations of undertakings, or concerted practices which may affect trade within the UK and which have as their object or effect the prevention, restriction or distortion of competition within the UK. It will usually be clear from the decision whether the infringement was through participation in a cartel (including practices such as fixing or co-ordinating purchase or selling prices or other trading conditions, sharing markets and customers, bid-rigging or output restrictions).
b. This ground does not apply where the supplier or connected person is an ‘immunity recipient’, i.e. it was granted immunity from financial penalties in respect of its participation in the infringement under a cartel leniency programme. Guidance on leniency can be found in the CMA guidance
c. As with the tax misconduct grounds, it is also a mandatory exclusion ground where the supplier or a connected person has been subject to a competition law infringement decision by a regulator, court or other authority outside of the UK where that conduct would give rise to a decision in the UK if it had been committed in the UK.
d. The public register of decisions made under the Competition Act 1998 is available
8. Failure to cooperate with investigation
a. This covers instances where an appropriate authority (for example, PRU NSUP on behalf of a Minister of the Crown) has given the supplier or connected person a relevant notice requesting documents or other assistance in connection with a debarment investigation and the relevant entity has failed to comply with the notice to the satisfaction of the authority, in the period specified.
b. This exclusion ground only applies where a Minister of the Crown has determined that a failure to provide the information or assistance requested in the timeline specified is sufficiently serious to warrant a mandatory exclusion ground.
c. Further information is provided on the debarment process in the guidance on debarment.
9. Offences or misconduct listed in Schedule 6 will only constitute a mandatory exclusion ground where it has occurred within the relevant time periods set out in Schedule 6, paragraph 44. See paragraphs 27-29 above in relation to these time periods.
Summary of Schedule 7 – Discretionary Exclusion Grounds
10. Schedule 7 of the Act sets out the discretionary exclusion grounds, which do not all require a conviction but represent situations that may pose unacceptable risks. Guidance for each ground is briefly outlined below.
11. Labour market misconduct
a. This ground will allow contracting authorities to exclude suppliers for certain types of serious labour misconduct.
b. Paragraph 1 provides for a discretionary exclusion ground where a supplier or a connected person of the supplier has been subject to regulatory enforcement in relation to labour misconduct by way of being issued certain orders. These include Slavery and Trafficking Prevention Orders (STPOs), Interim Slavery and Trafficking Prevention Orders (ISTPOs), Slavery and Trafficking Risk Orders (STROs) and Interim Slavery and Trafficking Risk Orders (ISTROs) under Part 2 of the Modern Slavery Act 2015. The Home Office has published comprehensive guidance on these orders (PDF, 203KB). Equivalent orders under Scots and Northern Irish laws are also included.
c. These also include Labour Market Enforcement Orders (LMEOs) under section 18 of the Immigration Act 2016, which are intended for more serious or persistent offenders where this type of intervention is judged appropriate to prevent further offending. The Government published a Code of Practice on LMEOs that contains comprehensive guidance on these orders.
d. Contracting authorities should be aware of the potential overlap of this ground with the mandatory exclusion grounds for labour offences. The orders listed above can be issued without a conviction, however, there are circumstances in which these orders will be issued following a conviction for an offence that is itself a mandatory exclusion ground. In these circumstances, contracting authorities should consider whether either or both grounds apply.
e. Paragraph 2 provides for a discretionary exclusion ground where conduct committed outside of the UK would have resulted in a relevant order being made if it had been committed within the UK.
f. Paragraph 3 provides for a discretionary exclusion ground where there is sufficient evidence that a supplier or connected person has engaged in modern slavery, irrespective of where that occurred, that would if it occurred in the UK constitute an offence under relevant modern slavery and human trafficking legislation. This ground captures modern slavery or human trafficking occuring in jurisdictions that are failing to prosecute the offenders.
12. Environmental misconduct
a. This ground applies where the supplier or a connected person of the supplier has been convicted of certain environmental misconduct offences. It applies to offences where the conduct constituting the offence caused or had the potential to cause significant harm to the environment.
b. ‘Incidents causing potential or actual environmental impact’ refer to categories 1 and 2, and category 3 but only by virtue of ‘risk of category 2 harm’, set out at step 3 of the Environmental Offences Definitive Guideline for organisations and individuals (as appropriate).
c. The harm category is determined by the court as part of the sentencing process. Contracting authorities should make it clear to suppliers that they should self-declare that this exclusion ground applies if the supplier (or a connected person) has been convicted of an environmental offence meeting the relevant harm categories. Further details of the offence and the harm category will usually be evident from the court judgment, which can be requested from the supplier or the relevant court.
d. The incident does not need to result in an environmental impact and includes potential impact, as it may be possible to prevent damage occurring. Incidents that have a potential or actual environmental impact include the following:
i. environmental harm/pollution of surface waters or groundwater;
ii. environmental harm to land, air and water from a site, substance or process;
iii. impacts on human health or nuisance to the local community from a site, substance or process;
iv. major air pollution incidents;
v. fish kills and illegal fishing;
vi. damage to nature conservation sites and species;
vii. illegal abstraction and low river flows;
viii. speeding vessels and closure of a navigation fairway;
ix. flooding or potential causes of flooding; and
x. environmental harm from land drainage works.
e. This ground is broad enough to cover offences under the following legislation, where the conviction relates to incidents that have caused or have the potential to cause significant harm to the environment. However, this list is not exhaustive and the exclusion ground may also capture other offences relating to incidents of this nature.
i. Animal By-Products (Enforcement) (England) Regulations 2013;
ii. Animal By-Products (Enforcement) (Wales) Regulations 2014;
iii. Control of Major Accident Hazards Regulations 2015;
iv. Control of Pollution (Amendment) Act 1989, sections 1, 5 and 7;
v. End-of-Life Vehicles Regulations 2003;
vi. End-of-Life Vehicles (Producer Responsibility) Regulations 2005;
vii. Environment Act 1995, section 110;
viii. Environmental Permitting (England and Wales) Regulations 2016;
ix. Environmental Protection Act 1990;
x. Food and Environment Protection Act 1985, section 9;
xi. Hazardous Waste (England and Wales) Regulations 2005;
xii. Hazardous Waste (Wales) Regulations 2005;
xiii. Health & Safety at Work etc Act 1974;
xiv. Landfills Disposals Tax (Wales) Act 2017;
xv. Pollution Prevention and Control (England and Wales) Regulations 2000;
xvi. Producer Responsibility Obligations (Packaging Waste) Regulations 2007;
xvii. Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012;
xviii. Scrap Metal Dealers Act and 2013;
xix. Transfrontier Shipment of Waste Regulations 2007;
xx. Vehicles (Crimes) Act 2001, Part 1;
xxi. Waste (England and Wales) Regulations 2011, regulation 42;
xxii. Waste Batteries and Accumulators Regulation 2009;
xxiii. Waste Electrical and Electronic Equipment Regulations 2013; and
xxiv. Water Resources Act 1991, sections 202 and 206.
13. Insolvency, bankruptcy, etc.
a. This ground applies where a supplier or connected person is declared bankrupt, or is subject to certain types of insolvency or pre-insolvency proceedings in the UK or similar procedures outside of the UK.
b. A separate ground applies where the supplier or connected person has suspended or ceased carrying on all or a substantial part of its business.
14. Potential competition infringements
a. These grounds cover a broader range of infringements than are covered by the mandatory exclusion grounds for cartel competition law infringements, as well as situations where a case is not prioritised by the CMA for investigation or where a case is being investigated but that investigation has not yet concluded.
b. The first discretionary ground applies where a contracting authority considers that an agreement or concerted practice which the supplier or a connected person of the supplier has participated in has infringed the Chapter I prohibition (or a substantially similar prohibition outside of the UK). Unlike the mandatory exclusion ground, this is not limited to where the infringement is through participation in a cartel and does not require a decision by the CMA (or concurrent or non-UK regulator), although the ground may also cover situations where there has been such a decision. Where the CMA (or a concurrent regulator) has made a decision that there has been an infringement of the Chapter I prohibition through participation in a cartel, a mandatory ground for exclusion will apply.
c. As with the mandatory exclusion grounds, this discretionary ground does not apply if the supplier or connected person is an ‘immunity recipient’ (or has been granted similar immunity outside of the UK). Guidance on leniency can be found in the CMA guidance.
d. The second and third grounds relate to infringements of the ‘Chapter II prohibition’. Chapter II of the Competition Act 1998 prohibits the abuse of a dominant position in a market if it may affect trade within the UK. The second ground applies where a contracting authority considers that the supplier or a connected person of the supplier has infringed the Chapter II prohibition (or a substantially similar prohibition outside of the UK). The third ground applies where the CMA (or concurrent regulator or a non-UK authority) has made a decision that the supplier or a connected person has infringed the Chapter II prohibition (or a substantially similar prohibition outside of the UK).
e. The final ground in this section applies where a contracting authority considers that the supplier or a connected person of the supplier has engaged in conduct constituting a criminal cartel offence under section 188 of the Enterprise Act 2002 (or a substantially similar offence outside of the UK). This offence applies only to individuals so would be relevant only to suppliers who are individuals and those categories of connected persons who are individuals. This ground does not apply where the individual has received an immunity from prosecution letter in connection with the conduct (or has been granted similar immunity outside of the UK). Guidance on such letters has been published by the CMA here.
f. The legal framework for information sharing in relation to competition matters is contained within Part 9 of the Enterprise Act 2002 (EA02). This includes important restrictions on the disclosure of information relating to individuals and businesses.
15. Professional misconduct
a. The first ground relating to professional misconduct applies where a contracting authority considers that the supplier or a connected person of the supplier has engaged in professional misconduct which brings into question the supplier’s professional integrity.
b. The second ground relating to professional misconduct applies where a court, regulator or other authority has ruled that the supplier or a connected person of the supplier has engaged in such professional misconduct. This covers situations where there has been a finding by a court, such as a conviction for a criminal offence, but also extends to decisions taken by wider authorities including regulators and/or other authorities, such as for a breach of standards or for rulings by a professional disciplinary body like the Financial Conduct Authority. The fact that a regulatory body has entered into a Deferred Prosecution Agreement (DPA) (or similar) with a supplier may be sufficient evidence of professional misconduct but this will depend on the underlying misconduct. A DPA may also be evidence of self-cleaning in order to demonstrate that the circumstances giving rise to the misconduct are not likely to occur again due to measures taken by the supplier and agreed as part of the DPA.
c. The concept of ‘professional misconduct’ in both of these grounds is expressly stated to include dishonesty, impropriety and a serious breach of ethical or professional standards applicable to the supplier (whether those standards are mandatory or not). Although this list is not exhaustive, it is indicative of the types of misconduct that are covered by these grounds. The professional misconduct grounds are intended to cover a broad range of misconduct, including certain offences that are not covered by the mandatory exclusion grounds and behaviour where there has been no conviction.
d. For example, it may apply for convictions for the offence of failing to prevent bribery under section 7 of the Bribery Act 2010; the offence of participating in a fraudulent business carried out by a sole trader under section 9 of the Fraud Act 2006; the offence of obtaining services dishonestly under section 11 of that Act and the liability of company officers for offences committed by the company under section 12 of that Act.
e. When considering whether there has been ‘impropriety’, a contracting authority should consider whether there has been improper behaviour. There is no legislative definition of impropriety in this context but improper behaviour might include failing to act in good faith or to act impartially where that would be expected in the particular profession the supplier operates in, or a breach of trust where there are standards or expectations of professional trust.
f. When assessing what constitutes a serious breach of ethical or professional standards, a contracting authority should consider both whether the standard applies to the supplier or connected person and whether it is an ethical or professional standard. The breach must also be serious.
g. Ethical or professional standards applicable to the supplier or connected person may be generic, such as data protection, corporate governance or standards relating to the treatment of employees, or may depend on the industry. Accounting standards in the finance industry, for example, may be relevant for one supplier, but a manufacturing code of conduct relevant for another. The standards do not have to be mandatory and could include standards set by a regulator or professional disciplinary body, voluntary industry codes of conduct that the supplier has signed up to, internal policies or statements of company values, or technical standards such as building regulations.
h. In order for these grounds to apply, the misconduct must be serious enough to call into question the supplier’s integrity: it cannot be minor or of a nature that does not impact on the supplier’s overall integrity. For example, where a supplier has been dishonest, this does not necessarily mean either of these grounds will apply and consideration must be given to whether the supplier’s integrity has been called into question by the dishonesty. This will be particularly relevant where the misconduct has been committed by a connected person, as it is the supplier’s (not the connected person’s) integrity which must be called into question for the grounds to apply.
16. Breach of contract and poor performance
a. These grounds are aimed at covering situations where suppliers have a poor track record of delivering on certain types of contracts. These grounds relate to breaches and poor performance of contracts to which a ‘regulated authority’ is a party. A regulated authority for these purposes is a contracting authority, another public authority or equivalent authorities outside of the UK. This covers a broader range of contracts than just public contracts, including below threshold contracts and exempted contracts entered into with a contracting authority, as well as all types of contracts entered into by other public authorities. Breach or poor performance of contracts the supplier has with private entities are not relevant to these grounds. These grounds also do not apply in relation to connected persons.
b. The first two grounds (Schedule 7, paragraph 12(1) and (2)) relate to breach of contract. Firstly, where the supplier has breached a relevant contract and the breach was sufficiently serious. Secondly, where a court has ruled that the supplier has breached a relevant contract and the breach was sufficiently serious. When considering whether either of these grounds apply, a breach is sufficiently serious where it has led to termination, damages or a settlement agreement. A settlement agreement is where the parties have entered into an agreement to settle a contractual dispute. Damages in this context include liquidated and unliquidated damages, including on an indemnity basis, but not debts payable under contracts.
c. The third ground (Schedule 7, paragraph 12(3)) applies where a supplier has not performed a relevant contract to a satisfactory level, and has failed to improve their performance, having been given an opportunity for improvement. This is intended to cover serious performance failures, as determined by the terms of the contract, such as failure to meet a certain number of key performance indicators (KPIs) over a set period, or a certain level of KPI failure, as well as failure to meet other contractual performance requirements like delivery dates, specification requirements or quality standards. Contracts should set out clear standards for performance.
d. A supplier must be given a proper opportunity to improve performance. This will usually be by reference to contractual mechanisms. These could include (but are not limited to) notification of poor performance and clear time periods to rectify, rectification plans, or improvement plans. The poor performance ground applies where performance has not improved following application of such mechanisms, which are common in most public sector contracts. Guidance on performance management is outlined in the Sourcing Playbook (PDF, 3.1MB). Contracting authorities should ensure that any remedial actions provided for in improvement or other similar plans are SMART.
e. In determining whether the poor performance ground applies, contracting authorities should consider the nature and frequency of performance failures, any mitigating factors such as contributory actions by the relevant authority, as well as other relevant circumstances.
f. The final ground in this section (Schedule 7, paragraph 12(4)) applies where a contracting authority has published information relating to breach or poor performance under section 71(5). This information will be published in a contract performance notice or contract termination notice. More detail on the publication of this information is provided in the guidance on the contract performance and contract termination notices.
17. Acting improperly in procurement
a. This ground applies where a supplier has acted improperly in a procurement and, as a result, has put itself at an unfair advantage in relation to the award of a public contract.
b. The types of improper behaviour identified in relation to this ground are:
i. failing to provide information requested by the contracting authority;
ii. providing information that is incomplete, inaccurate or misleading;
iii. accessing confidential information; and
iv. unduly influencing the contracting authority’s decision-making.
This list is not exhaustive but is indicative of the type of behaviour covered by the ground.
c. Where a supplier acts improperly in relation to the particular procurement and has gained an unfair advantage in the procurement as a result, the supplier must under section 30 be treated as an excluded supplier and must not be allowed to progress further in that procurement. However, this discretionary exclusion ground also covers situations where a supplier has behaved improperly in a different procurement to the one being carried out, meaning the supplier could be excluded from multiple procurements as a result of a single act.
18. National security
a. This ground is intended to protect the UK’s national security interests in covered procurements.
b. A discretionary exclusion ground applies to a supplier if a decision-maker determines that the supplier or a connected person poses a threat to the national security of the UK. However, the contracting authority (other than government departments and Corporate Officers of the House of Commons and House of Lords) may not exclude the supplier or notify the supplier of its intention to do so unless:
i. the authority has notified a Minister of the Crown of its intention (in practice this must be a Cabinet Office minister who can be notified via PRU on gov.uk); and
ii. the Minister of the Crown considers that:
a. the supplier is an excludable supplier by reference to Schedule 7, paragraph 14; and
b. the tender should be disregarded or the supplier excluded.
c. This same process applies where the supplier is an excludable supplier under this ground by virtue of an associated person or intended sub-contractor and the contracting authority intends to notify the supplier to give them the opportunity to replace the associated person or sub-contractor.
-
Cabinet Office Guidance: Debarment
Updated 20 November 2025
What is debarment?
1. The debarment regime enables Ministers to put suppliers on a published debarment list. Inclusion on the list means that the supplier’s past behaviour or circumstances mean that it is not, or may not be, allowed to participate in covered procurements or be awarded public contracts. Debarment aims to minimise supplier-related risk in public procurement and incentivise suppliers to achieve excellent corporate compliance and standards of behaviour.
2. Whereas the exclusion regime relies wholly on assessments undertaken by contracting authorities, debarments will be managed centrally. Debarment is closely linked to exclusions in that a supplier can only be considered for debarment if any of the mandatory or discretionary exclusion grounds, outlined in Schedule 6 and 7 of the Procurement Act 2023 (Act), apply and the circumstances giving rise to the relevant exclusion ground are continuing or are likely to occur again. The main distinction is that only a Minister of the Crown can make the decision to put a supplier on the debarment list. All contracting authorities must check the debarment list in each procurement and must exclude (or have a discretion to exclude) suppliers, if they are on the debarment list.
What is the legal framework that governs debarment?
3. Section 59 (Notification of exclusion of supplier) requires contracting authorities to notify a Minister of the Crown, the Welsh Ministers or Northern Ireland departments (depending on the status of the contracting authority) whenever a contracting authority has determined that a supplier (including by virtue of a connected person, associated person or sub-contractor) is an excluded supplier or an excludable supplier and has taken certain actions under the exclusions regime. This provides one route by which suppliers may be brought to the attention of a Minister of the Crown for potential debarment.
4. Section 60 (Investigations of supplier: exclusion grounds) allows a Minister of the Crown, the Welsh Ministers or Northern Ireland departments to undertake investigations of suppliers to establish whether they are an excludable supplier or an excluded supplier, for the purpose of a Minister of the Crown subsequently considering whether the supplier should be added to the debarment list. It provides powers to facilitate the collation of information during the investigation and requires that the supplier be notified of an investigation. It also requires a Minister of the Crown to keep under review whether suppliers should be investigated in the light of national security threats. In all cases, an investigation is a prerequisite before a supplier can be put on the debarment list by a Minister of the Crown.
5. Section 61 (Investigations under section 60: reports) allows Welsh Ministers and Northern Ireland departments to refer a supplier that they have investigated to a Minister of the Crown for consideration for potential debarment.
6. Section 62 (Debarment list) allows a Minister of the Crown to create a debarment list. This is a published list of suppliers which, following an investigation, they consider are excluded or excludable suppliers and which they have decided to put on the debarment list. It also allows the Minister to put a supplier on the debarment list where the Minister has determined the supplier’s failure to cooperate with an investigation under section 60 (Investigations of supplier: exclusion grounds) is sufficiently serious to warrant mandatory exclusion. In addition the Act sets out: what information must be recorded on the debarment list; the advance notice that must be given to the supplier before they are entered onto the debarment list (which triggers a standstill period); when the Welsh Ministers and Northern Ireland departments must be consulted; and other requirements pertaining to how the list is maintained.
7. Section 63 (Debarment decisions: interim relief) allows a supplier to apply to the court for interim relief i.e. to suspend a debarment decision pending an appeal. After notifying the supplier of the debarment decision, per section 62 (Debarment list), the Minister must wait 8 working days (the standstill period) before entering the supplier’s name onto the debarment list. If the supplier successfully applies for interim relief during the standstill period, the Minister may not enter the supplier’s name onto the debarment list until a subsequent appeal has concluded or the time allowed to bring an appeal has elapsed. When considering an application for interim relief, the court must balance the interests of the supplier against the public interest.
8. Section 64 (Debarment list: application for removal) allows a supplier on the debarment list to apply for their entry to be revised or removed from the list. The Minister of the Crown is only required to consider such an application if there has been significant new information or a material change of circumstances.
9. Section 65 (Debarment decisions: appeals) allows suppliers to appeal certain decisions relating to debarment to the court. Appeals must be brought within 30 days of when the supplier was, or ought to have been aware, of the Minister’s decision. The court can only make an order setting aside the debarment decision if it is satisfied that the Minister has made a material mistake of law; the court can also order the Minister to pay the supplier’s bid costs incurred in a procurement it has been excluded from as a result of the mistake. Suppliers will be expected to have mitigated those costs.
10. Section 66 (Debarment proceedings and closed material procedure) allows the Minister for the Cabinet Office to apply for a declaration permitting closed material procedure applications in interim relief and appeal proceedings. Closed material procedure involves the non-government parties leaving the courtroom whilst sensitive material is heard. This is likely to only be used in very limited circumstances, such as where a supplier has been added to the debarment list on national security grounds.
What has changed?
11. The Act creates a new debarment regime with powers for the Minister of the Crown to place suppliers on a published debarment list, which must be taken into account for all covered procurements, thereby putting a centralised debarment process on a legislative footing across all public procurements, as well as broadening the supplier exclusions regime (see guidance on exclusions for further information).
12. As a result of the debarment process, under the Act, contracting authorities will have access to a central source of information published on gov.uk which will support contracting authorities in making exclusion decisions and ensure a level of consistency across the public sector. The publication of reports produced following debarment investigations will also assist contracting authorities in making their own assessments of suppliers that have already been subject to a debarment investigation. This additional information will be most useful where a supplier has been investigated but not added to the debarment list and when a supplier is on the debarment list in relation to a discretionary exclusion ground as a contracting authority can apply it to the context of its own procurement and use it to support its own decision-making process.
Key points and policy intent
13. Debarment is not intended to be a punishment for past misconduct, but is a risk-based measure to ensure a supplier does not or may not participate in procurements or be awarded contracts where a Minister has put the supplier on the debarment list.
14. The debarment list will be published on gov.uk. It will set out:
a. the supplier;
b. the exclusion ground that applies (and whether this is mandatory or discretionary); and
c. the date the supplier’s name is expected to be removed from the debarment list.
15. Contracting authorities should check the debarment list before allowing any supplier to participate in a covered procurement and before deciding to award a public contract to a supplier. Contracting authorities must check whether the supplier’s name or the names of any associated persons or intended sub-contractors are on the debarment list and should also check whether the names of any connected persons of the supplier are on the debarment list, as this may be grounds for considering exclusion of the supplier. References to a supplier being on the debarment list in this guidance include associated persons and intended sub-contractors. For further details please see the guidance on exclusions.
16. When a supplier is on the debarment list in relation to a mandatory exclusion ground, a contracting authority must not allow the supplier to bid in a competitive flexible procedure or be awarded a public contract in any competitive tendering procedure or by way of direct award and must disregard any tender submitted by them. The following exceptions apply:
a. procurements by private utilities;
b. where a supplier is on the debarment list on national security grounds for particular types of contracts, as the debarment does not affect their eligibility to bid for other types of contracts; or
c. procurements by direct award where there is an overriding public interest in awarding the contract to that supplier. These include certain defence and security reasons and in certain cases where there is an extreme and unavoidable urgency.
17. Where a supplier is on the debarment list as a result of a discretionary ground, it is still possible for a contracting authority to permit the supplier to bid for and be awarded a public contract. Contracting authorities should use caution and only do so after careful review, having considered any relevant investigation report relating to the debarment list entry, and undertaken appropriate additional due diligence. Contracting authorities should only proceed if they have good reasons for doing so. These may include market limitations, operationally critical contracts or the risk posed by the supplier on that particular contract, but each case will depend on the circumstances. As with all exclusion decisions, contracting authorities should keep an audit trail of the decision and the reasons for it.
18. Where the supplier is on the debarment list in relation to specific types of contracts (where a Minister of the Crown has assessed that the supplier poses a threat to national security in relation to those types of contracts), debarment will ensure that suppliers assessed as posing a threat cannot be used in sensitive contexts, ensuring that high-risk procurements are handled prudently.
19. Contracting authorities may want to consider the debarment list when awarding contracts other than public contracts (such as exempted contracts or below-threshold contracts).
20. If a supplier is not named on the debarment list, contracting authorities may only exclude suppliers from procurements and disregard their tenders if they are satisfied, on their own assessment, that the supplier is an excluded or excludable supplier. It should not be assumed that any of the exclusion grounds apply to a supplier which is under investigation or being considered for debarment. See the guidance on exclusions.
21. The Act implies terms into public contracts (section 78) giving contracting authorities a right to terminate the contract in particular circumstances. This enables a contracting authority to terminate a contract where a supplier has, since the award of the contract, become an excluded supplier or excludable supplier (including by reference to an associated person); or where 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. This includes where such suppliers have been added to the debarment list. Contracting authorities should, as a matter of best practice, expressly include in their contracts an obligation on suppliers to notify them if they become an excluded or excludable supplier (including where they are put on the debarment list during the term of the contract or by virtue of their connected persons, associated persons or sub-contractors). Further information can be found in the guidance on contract termination.
22. Contracting authorities must notify a Minister of the Crown, the Welsh Ministers or a Northern Ireland department if they exclude a supplier (or if they take certain other types of action under the exclusions regime; see guidance on exclusions) and also if the supplier challenges an exclusion decision. Which authority must be notified depends on whether the contracting authority is a devolved, transferred or reserved authority (as defined in the Act). Notification must be provided within 30 days of the supplier being excluded (or the other relevant action taken). For contracting authorities that are not a devolved Welsh authority or transferred Northern Ireland authority, the contracting authority will notify Procurement Review Unit (PRU) via its gov.uk page. Any cases relating to national security will be forwarded to the National Security Unit for Procurement (NSUP). For the purposes of a centralised record of exclusions, devolved Welsh authorities and transferred Northern Ireland authorities should report any exclusions to PRU as well as to the Welsh Ministers or Northern Ireland department (as appropriate).
23. Where a contracting authority excludes a supplier on the basis that it is on the debarment list for either the mandatory or discretionary national security exclusion grounds, the contracting authority must notify a Minister of the Crown. It should be noted that where a contracting authority intends to exclude a supplier on the basis of the discretionary national security ground, this decision will need to be approved in advance by a Minister of the Crown (via referral to PRU).
Debarment investigations and decisions
24. Suppliers may be brought to the attention of a Minister of the Crown for potential debarment through any means, including notification of the exclusion of a supplier from a particular procurement by a contracting authority, an investigation by the Welsh Ministers or a Northern Ireland department, or through information otherwise available. The Minister of the Crown may consider suppliers for potential debarment based on either a referral from Welsh Ministers or Northern Ireland departments, or on their own investigation (led by either PRU or NSUP within the Cabinet Office, depending on the exclusion ground in question). PRU may also use notification of supplier exclusion to initiate a debarment investigation.
25. Once the decision to investigate has been made, investigating authorities are under a duty to inform a supplier that they are to be investigated, confirm which exclusion ground(s) is the subject of the investigation and provide information about how a supplier can make representations.
26. During an investigation, suppliers may be requested by the investigating authority to provide information or provide assistance. Although suppliers do not have a legal duty to comply with requests for information or other assistance, failure to do so could result in debarment by virtue of the mandatory exclusion ground for failure to cooperate with an investigation.
27. Contracting authorities may be required to provide information and assistance during an investigation of a supplier for potential debarment. As part of an investigation, contracting authorities may be asked to supply relevant information about suppliers they have contracts with or have had contracts with in the past, or where they otherwise hold information about suppliers. Unlike suppliers, contracting authorities are under a legal duty to comply with such requests, unless they are otherwise prevented from doing so by other legal duties (such as restrictions on information sharing).
28. The questions that must be considered prior to making a debarment decision are whether an exclusion ground applies and whether the circumstances that gave rise to the exclusion ground are continuing or are likely to reoccur. The likelihood of recurrence constitutes the self-cleaning assessment. The factors that are relevant to self-cleaning include but are not limited to: evidence that the circumstances have been taken seriously, for example paying compensation, steps that have been taken to prevent the circumstances occurring again, for example changing staff and commitments that such steps will be taken (see the guidance on exclusions for further detail). Where a Minister of the Crown determines that both of these tests are met, the Minister is able to make a debarment decision. The Minister may decide not to put a supplier’s name on the debarment list for a variety of reasons, including, for example, where there is an overriding public interest in allowing the supplier to continue to bid for public contracts.
29. Once an investigation has concluded, or where a Minister of the Crown has considered an investigation by the Welsh Ministers or a Northern Ireland department, the supplier will be provided with a copy of the investigation report, usually prior to publication and subject to certain exceptions (as set out below in paragraph 35). A Minister of the Crown is also under a duty to notify a supplier before entering its name on the debarment list.
30. Debarment will either be on a discretionary or mandatory basis, based on the type of exclusion ground which applies. For some types of misconduct, there are both discretionary and mandatory exclusion grounds and which will apply will depend on the severity or nature of the misconduct. The exclusion grounds are listed in Schedules 6 and 7 of the Act and the rules on considering whether a supplier is ‘excluded’ or ‘excludable’, including self-cleaning and considerations of a supplier’s connected persons, associated persons and sub-contractors are described further in guidance on exclusions.
31. A supplier will usually remain on the debarment list for up to 5 years from when the relevant event occurred (for mandatory exclusion grounds) or when the Minister knew, or a reasonably well-informed decision-maker in their position would have been aware of)[footnote 1] the event (for discretionary exclusion grounds).
32. It may take time to reach the point of determining if a supplier should be added to the debarment list. Contracting authorities may wish to consider the implications of a supplier being added to the debarment list during a live procurement, particularly if the decision is taken towards the end of a competitive tendering procedure, and consider setting out in the tender documentation how it will progress to contract award in such circumstances.
33. Although the Act states that in certain circumstances outside of those listed in Schedule 6, a supplier must be treated as an excluded supplier, these are not grounds for debarment and, if any of these apply, the supplier must simply be excluded from that particular procurement. The circumstances are:
a. where a supplier’s participation in preliminary market engagement has put the supplier at an unavoidable unfair advantage (see section 16 (Preliminary market engagement));
b. where the supplier has acted improperly in the course of the procurement (note that acting improperly in other procurements is a discretionary exclusion ground under Schedule 7, paragraph 13) (see section 30 (Excluding suppliers for improper behaviour));
c. where a supplier has failed to provide information about its connected or associated persons (see section 30 (Excluding suppliers for improper behaviour)); or
d. where a conflict of interest has put a supplier at an unavoidable unfair advantage (see section 82 (Conflicts of interest: duty to mitigate)).
34. Reports of investigations conducted by a Minister of the Crown, or of consideration of the findings made by the Welsh Ministers or a Northern Ireland department must be published. The report must state whether the Minister is satisfied the supplier is excluded or excludable and, if so:
a. in relation to each relevant exclusion ground, whether this is mandatory or discretionary;
b. if the mandatory exclusion ground relating to national security threats for particular types of contracts applies, a description of the types of contracts;
c. the date on which the Minister expects the ground to cease to apply; and
d. whether the Minister intends to add the supplier’s name to the debarment list,
alongside the Minister’s reasons for each of these points.
35. The only exceptions to this publication requirement are where the Minister considers it necessary to redact, withhold publication or limit the disclosure of the report in order to safeguard national security or to prevent publication of commercially sensitive information where there is an overriding public interest in it being withheld from publication.
36. The Minister is under an obligation to keep the debarment list under review and must remove a supplier’s name from the list if they are satisfied that there are no longer an excluded or excludable supplier. This will be the case where, for example, the exclusion ground no longer applies to the supplier due to expiry of the relevant time period or where the supplier has provided sufficient self-cleaning evidence.
Suppliers’ right to appeal
37. At any time, a supplier can apply to a Minister of the Crown for removal or revision of their entry on the debarment list. Such an application need only be considered where there has been a material change of circumstances or significant new information.
38. Suppliers will have eight working days (‘the debarment standstill period’) after notification of the decision to add them to the debarment list, to apply to the court for a temporary suspension of the decision. If the application is successful, the supplier’s name cannot be added to the list until either 30 days have passed since the supplier knew (or should have known) of the Minister’s decision and the supplier has not commenced appeal proceedings, or any appeal that has commenced has been resolved or disposed of (e.g. withdrawn).
39. Suppliers can only appeal a debarment decision in the courts on the grounds that, in making the decision, the Minister made a material mistake of law. A supplier must commence an appeal within 30 days, from knowing (or from when it should have known) of the Minister’s decision.
40. An appeal may only be brought in regard to the decision:
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 Schedule 6, paragraph 35 (National security);
c. to indicate a particular date as part of an entry in respect of the supplier under section 62 (debarment list) (4)(d); or
d. not to remove or revise an entry made in respect of the supplier following an application under section 64 (Debarment list: application for removal).
41. As set out in paragraph 9, if the Court is satisfied that the Minister made a material mistake of law, it can set aside the decision. If, as a result of that erroneous decision, the supplier was excluded from a procurement, the court may award compensation to the supplier for any costs incurred by the supplier’s participation in that procurement procedure.
42. Each debarment entry will stay on the debarment list until the time period stated in the entry expires. However, in the following circumstances the supplier may be removed earlier than the specified time period:
a. where a supplier successfully applies to have their name removed from the list;
b. where the Minister considers that there are no longer grounds for debarment (such as the exclusion ground no longer applies or where the supplier has demonstrated self-cleaning); or
c. where the court sets aside a debarment decision following a successful appeal by the supplier.
The National Security Unit for Procurement
43. Ministers will be supported by NSUP (which will coordinate across the wider national security community) to determine whether a supplier poses a national security risk.
44. For suppliers to whom the mandatory national security ground applies (because they pose national security threats on contracts of a particular description), contracting authorities must not allow the supplier to participate in procurements for any contract of the type described. The supplier is still permitted to participate in procurements for other contracts, but only where the contracting authority is satisfied the supplier should not be excluded. This is because where the mandatory national security ground exclusion applies to a supplier, the test for the discretionary national security ground will also apply (i.e. the supplier is considered to be a threat to the national security of the UK) so contracting authorities should consider whether to exercise their discretion to exclude the supplier on this basis from other types of contracts.
-
UK Procurement Act 2023
-
England and Wales
-
R (On the Application of the Good Law Project) v Minister for the Cabinet Office [2022] EWCA Civ 21
Region: England and Wales
No apparent bias in direct award of communications services contract at start of COVID-19 pandemic to company whose directors and owners had personal connections to Government advisor and party
The High Court (O’Farrell J) held that the Minister’s failure “to consider any other research agency, by reference to experience, expertise, availability or capacity, would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, that the decision-maker was biased.” The finding of apparent bias was overruled by the Court of Appeal. An application for leave to appeal to the UK Supreme Court was subsequently refused.
“63. The common law rules against bias date back to the 1860s with the decision of Blackburn J in R v. Rand [1866] LQR 1 B 230 which established judges cannot determine an issue in which they have any pecuniary interest. The rules are rooted in the context of judicial and quasi-judicial decision-making. Procedural fairness requires that the decision-maker should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the evidence and arguments being advanced by the parties. It aims at preventing a hearing or decision-making process from being a sham or a ritual because the decision-maker is not open to persuasion.
64. Actual bias has been described as rare and difficult to prove (see Broadview Energy Developments Ltd v. Secretary of State for Local Communities and Local Government [2015] EWHC 1743 (Admin) at [47]); the courts are therefore more commonly asked to look at the circumstances of a case to see if there is an appearance of bias, an allegation which should only be made on a proper basis. The rules against bias are an aspect of the principles of natural justice. The relevant test is now well-established: the court must first ascertain all the circumstances which have a bearing on the suggestions that the decision maker was possibly biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision maker was biased (see Porter v. Magill [2001] UKHL 67; [2002] AC 357 at [102] to [103]).
65. The fair-minded and informed observer is someone who reserves judgment until both sides of any argument are apparent, is not unduly sensitive or suspicious, and is not to be confused with the person raising the complaint. This observer considers the evidence carefully, having particular regard to the specific factual circumstances, taking a balanced approach and appreciating that context forms an important part of the material to be considered (see Helow v. Secretary of State for the Home Department [2008] UKHL 62; [2009] 2 All ER 1031; [2008] 1 WLR 2416 at [1] to [3]; Almazeedi Penner and others (Cayman Island) [2018] UKPC 3; [2018] 2 WLUK 600 at [20]; Gillies v. Secretary of State for Work and Pensions [2006] UKHL 2; [2006] 1 All ER 731; [2006] 1 WLR 781 at [17]).
66. These principles have been extended to apply to wider extra-judicial decision making, but always and only in an adjudicative context, such as local authority and planning committee decision-making (see for example R (Lewis) v. Redcar & Cleveland Borough Council [2008] EWCA Civ 746; [2009] 1 WLR 830); or a process to determine which of a number of hospitals should conduct specific treatments (R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472).
67. In support of its submission that the common law principles of bias applied to the instant facts, Good Law referred to R (ex p Kirkstall Valley Campaign Ltd) v Secretary of State for the Environment) [1996] 3 All ER 304. The relevant question in that case was whether a decision to grant outline planning permission was tainted by bias on the basis that the chairman of the local planning authority committee making the planning decision had a vested interest in the land under consideration. At page 324g Sedley J (as he then was) stated:
“….. public law has returned to the broad highway of due process across the full range of justiciable decision-making. One effect is that the maxim audi alteram partem is not to be regarded as a free-standing principle covering only proceedings in which there can be said to be sides or parties, but is one application of the wider principle that all relevant matters must be taken into account.”
Sedley J held that the principle that a person is disqualified from participation in a decision if there is a real danger that he or she will be influenced by a pecuniary or personal interest in the outcome is of general application in public law and is not limited to judicial or quasi-judicial bodies or proceedings.
68. That common law principles of fairness applied on the facts of Kirkstall is The planning committee was considering a formal planning application in the context of an adjudicative process, determining whether or not to grant the planning permission sought.
69. Turning to the present case, however, there was very specifically (and, as the judge held, justifiably) no competitive procurement process or, for example, an application by Public First as part of an adjudicative procedure of any sort. Rather, the Minister was entering directly into a private law services contract with Public First. It is difficult to see how any analogy can be drawn between the award of such a contract and the adjudicative context in which the rules against bias have hitherto been engaged. Unlike in a competitive procurement process, even one conducted outside the Regulations, the Minister was not assessing one or more applications and then making a determination. The Minister was thus not carrying out any adjudicative (and obviously not a quasi-judicial or judicial) function.
70. The lack of appropriate analogy can be demonstrated by a consideration of waiver: it has long been held that a party may waive his objections to a decision-maker who would otherwise be disqualified on the ground of bias: see, for example R v. Bow Street Metropolitan Stipendiary Magistrate , ex p Pinochet Ugarte No.2 [2000] 1 AC 199, 1441A; R v. Secretary of State for the Home Department ex parte Fayed [2001] Imm AR 134 at [85]; Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 351 at [15] and [26]. Here there was no relevant third party for the purpose of considering whether or not to waive any alleged bias. Instead, Good Law assert that the process was biased against other potential providers of the service and, in particular, the two identified in the pleading (see [60] above). Yet the evidence was that neither was a suitable candidate: see [79] and following below.
71. The judge and the parties proceeded on the premise that the common law principles of apparent bias were applicable to the facts of the instant case. We are in some doubt that the common assumption was correct. But that issue is not before us as part of the appeal. What follows assumes in Good Law’s favour, however, as the judge did, that the common law principles relating to apparent bias are properly engaged.
Analysis and conclusion
72. The central context for an assessment of the fair minded and informed observer’s belief is the emergency conditions arising out of the pandemic which, in turn, led to the engagement of Regulation 32. There is a tension between the judge’s finding on the one hand (for the reasons set out in [124] of the judgment) that the Minister was entitled to rely on Regulation 32 in awarding the contract, and on the other hand the conclusion (at [164]) that the Minister was nevertheless required (i) to consider other research agencies by reference to experience, expertise, availability and capacity and (ii) to keep a clear record of the objective criteria used to select Public First over other research agencies as part of the process in order to avoid an appearance of bias.
73. Regulation 32 allowed the Minister to proceed without a competition. That conclusion effectively disposed of the allegation at paragraph 32(ii) of the Amended Grounds: there was no obligation on the Minister to carry out any form of competition. The allegation pleaded in paragraph 32(iii) (ability of others to perform the contract) was not established on the facts; and there were no adverse findings in relation to the amount (in fact the maximum value) payable under the contract. At [167] of the Judgment, the judge said that the amount was irrelevant to the question of apparent bias.
74. That left only the first allegation (pleaded at paragraph 32(i)), namely the relationship between the directors and owners of Public First and Mr Cummings and the Conservative Party. The judge found in terms that the relationship did not create any apparent bias. Having regard to the specialised nature of the public policy and communications research industry, it was unsurprising that those involved at Public First might have developed professional and/or personal friendships over the years working within government departments. This finding disposed of the claim, at least as pleaded, or as Sir James put it, on the basis of that conclusion there was no “springboard” for a consideration of apparent bias.
75. The effect of the judge’s conclusions was to find breach on the part of the Minister of an unspecified obligation to carry out a process that involved a formally documented consideration of other research agencies (by reference to experience, expertise, availability and capacity) which gave rise to apparent bias.
76. This conclusion is, we suggest, at odds with the finding that the Minister was at the same time justified in using a negotiated procedure without prior publication, something which did not require consideration of any other agencies. The question of identifying and evaluating the capacity and suitability of other tenderers in these circumstances did not arise at all. We are unable to accept that in these circumstances the impartial and informed observer would, in effect, require the creation of a common law “procurement regime-light” in the absence of which he would think there was a real possibility of bias. This is sufficient to determine the appeal.
77. With respect to the judge, we also consider that there are real problems in the approach to the evidence. Under the heading “Failure to consider other providers” starting at [154] the judge set out some of the evidence served on behalf of the Minister explaining the reasons for choosing Public First.
78. Mr Aiken stated that there was no alternative but to appoint Public First for this work:
“…It would have been utterly impractical to instruct someone else. The assumption was that we should use the existing researchers.
When I receive a request, I consider how best to deliver it. Because Public First were already in place, with focus groups set up and they were trusted by No. 10, it was reasonable in the circumstances to ask them to continue. It was the most efficient and value for money way of getting desperately needed research urgently.”
79. Ms Hunt stated that Public First had particular experience and expertise in the services that were required and there was no suitable alternative at that time:
“… in my view only two companies in the market had the scale and expertise to provide these services in March 2020, being Public First and Britain Thinks. Both were ultimately needed to provide COVID-19 qualitative research services given the scale of the research sought. Both had the ability to understand a tricky and sensitive brief and how government narrative and policy is made. They were trusted and known to be capable of debriefing under pressure, including to very senior special advisors. Significantly they were both already doing work for the government at the point when the Covid-19 crisis first hit, Public First for us and Britain Thinks for the Department of Health and Social Care (“DHSC”), giving them an insight into emerging events and public mood. Given the speed at which events were moving, we did not have time to brief a brand new agency or for them to get up to speed with the urgency of the developing crisis. Infection rates were rising, people were dying and research would be instrumental in helping the government decide the best response to the crisis.
The only other qualitative agency with whom we had a contract at this point was Jigsaw. In my view they did not have the policy experience to carry out this work, which was both about developing policies and measures to address the rising Covid infection rate and effective communication to drive unprecedented behaviour change across the entire country. Jigsaw instead later led on research that looked at how to develop effective communication for vulnerable and hard to reach audiences.
The only other research agency with whom we had a contract in place at that time was YouGov. This was for polling only and did not cover focus groups. Whilst YouGov does have limited capability to carry out focus groups, they do not have the experience to do work at this scale or to turn research around at the pace that was needed (the same is true of Kantar in my view, another primarily quantitative agency with whom we have also worked during the Covid crisis). Also, they had not carried out groups for us before, and would not be able to hit the ground running, which was of fundamental importance …”
80. The fair minded and informed observer should be taken to be aware of this evidence (and indeed all evidence from the Minister’s officials who dealt with this matter). The judge concluded that the (first) difficulty with the Minister’s justification was that it was “not part of the decision-making process at the time that the decision was taken to appoint Public First”. (This could only have been a reference to the reasoning not being part of a formal, documented process: it clearly was part of the actual thinking of those involved at the time).
81. The judge had earlier noted (at [141]) that a decision-maker cannot meet a claim of apparent bias “simply by giving evidence, either detailing what was in his or her mind at the time he or she took the impugned decision, or asserting that he or she was not biased”. She relied on Porter v Magill at [104] and R (Georgiou) v London Borough of Enfield [2004] LGR 497 at [36]. Those authorities indeed confirm that assertion of a lack of bias will not advance matters, but they do not go so far as to say that evidence detailing what was in the decision-maker’s mind, or he knew or did not know, at the material time will not be relevant. Nor are contemporaneous records of thought processes necessary.
82. Decision-makers cannot refute an allegation of bias simply by asserting that they had an open mind and were not prejudiced. But where, as here, the judge was imputing to the informed observer a view that there should have been consideration of other providers, it obviously would be important to know why the decision to contract with Public First and not others was taken. In so far as the fair-minded and informed observer could not find any publicly documented reasons for the decision at the time, then they would ask for an explanation before reaching any firm conclusions. As Good Law itself points out, the hypothetical observer is “informed” and aware of all the circumstances, including facts ascertained on investigation by the court (see In Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 799 at [83(4)]). Those facts are not limited to the facts available to the hypothetical observer at the time of the decision, or to “publicly available information” (see R (Condron) v National Assembly for Wales [2006] EWCA Civ 1573; [2007] 2 P&CR 4 at [50]; Virdi v Law Society [2010] EWCA Civ 100; 2010 1 WLR 2840 at [37] to [44]).
83. The Judge also stated (as a second reason for dismissing the Minister’s justification) that the reasons advanced in favour of Public First’s appointment did not “stand up to scrutiny”. She summarised the Minister’s position as follows:
i) Only two companies in the market had the scale, expertise and experience to provide the requisite services in March 2020, Public First and Britain Thinks;
ii) Public First was trusted and known to be capable of undertaking the required services speedily and effectively, and of debriefing under pressure;
iii) Public First was already in place conducting the research; therefore, using them was the most efficient and effective way of obtaining urgently needed research;
iv) Other companies, such as Jigsaw, YouGov and Kantar, did not have the relevant policy experience or had not carried out similar focus group work.
84. In dismissing these reasons, the judge was concerned that no one identified the objective criteria for appointment; that no one undertook any assessment of Public First and that neither Mr Cummings nor Mr Aiken considered the possibility of an alternative agency; and that the Minister had failed to use the Research Marketplace Dynamic Purchasing System (“the RM DPS”) to identify potential suppliers.
85. There is force in the criticism advanced by Sir James that these comments ignore key aspects of the evidence, including Mr Aiken’s (unchallenged) evidence as to the rationale for Public First’s appointment and that use of the RM DPS took six to eight weeks, which was impractical in the circumstances. The judge also effectively rejected Ms Hunt’s unchallenged evidence on what were central issues, including whether there was any other agency that could meet the Minister’s urgent needs.
86. The general rule is that the evidence of a witness is accepted unless given the opportunity to rebut the allegation made against them, or there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away so that the witness’s testimony is manifestly wrong. A court hearing a judicial review will generally accept the evidence of the public authority: and will not normally decide contested issues of fact: see, for example, R Board of Visitors of Hull Prison ex p St. Germain (No. 2) [1979] 1 WLR 1401 at page 1410H and R (Watkins-Smith) v. Aberdare Girls High School [2008] EWHC 1865 (Admin), [2008] FCR 203 at [135]; R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518 at [18]).
87. In the circumstances of this case, there was no basis for rejecting the evidence either of Mr Aiken or Ms Hunt. The Minister was under a duty of candour. The evidence of both Mr Aiken and Ms Hunt was not contradicted by objective evidence elsewhere. Ms Hunt set out in her second witness statement to expand on why each other agency was not suitable, agency by agency and including Jigsaw. Quite apart from Mr Cummings, experienced civil servants, including Mr Aiken who was responsible for letting the contract, knew what services were urgently needed in a public health emergency and were intimately familiar with the market for their provision.
88. The question of apparent bias ought to have been assessed on the basis that the reasons behind the decision to award the contract at the time that it was taken included, as set out in the evidence for the Minister, that:
i) Only two companies in the market had the scale, expertise and experience to provide the requisite services in March 2020, Public First and Britain Thinks;
ii) Public First was trusted and known to be capable of undertaking the required services speedily and effectively, and of debriefing under pressure;
iii) Public First was already in place conducting the research; therefore, using them was the most efficient and effective way of obtaining urgently needed research;
iv) Other companies, such as Jigsaw, YouGov and Kantar, did not have the relevant policy experience or had not carried out similar focus group work.
89. The fair-minded and informed observer would have been aware of these reasons and the following material context:
i) There was nothing unlawful in the involvement of Mr Cummings in the decision-making process;
ii) The award of the contract was approved by Mr Aiken;
iii) The extent of the emergency arising out of the pandemic and the position of those involved in the process at the time, as set out in the unchallenged witness evidence of those involved;
iv) The extreme urgency brought about by these unforeseeable events was such as to engage Regulation 32. The use of a negotiated procedure without prior publication was strictly necessary;
v) There was thus no requirement on the Minister to carry out any procurement process, and no need for the Minister to consider other agencies. He was entitled to award the contract directly;
vi) Specifically, given the urgency of the need for the research in question, it would have been “utterly impractical to instruct someone else” on Thursday/Friday 27/28 February 2020 (as Mr Aiken said). There was an urgent need for focus group testing on the Thursday evening, the results of which were to be provided to No 10 the following day. After that work had been presented, the decision was taken to continue with Public First;
vii) It was vital that the services could be provided immediately and reliably, and that their output could be trusted;
viii) The Minister was not carrying out any adjudicative procedure, but rather making, and entitled to make, his own evaluative assessment in a small close-knit market as to which agency was best suited to his needs.
90. Against this background, the fair-minded and reasonably informed observer would not have concluded that a failure to carry out a comparative exercise of the type identified by the Judge created a real possibility that the decision-maker was biased. Equally, the fair-minded and informed observer, realising, amongst other things, that the use of a negotiated procedure without prior publication (with Public First) was strictly necessary because of the pandemic emergency, would not have found the absence of any formal record of the decision-making process indicative of apparent bias.”
-
Dukes Bailiffs Ltd v Breckland Council [2023] EWHC 1569 (TCC) (Tindal HHJ)
Region: England and Wales
Claim of apparent bias in award of debt enforcemnet services contract was not arguable where connections between evaluator and personnel of successful tenderer were relatively anodyne and consistent with a professional friendship and the scoring was not consistent with bias
“126. [Even] on the assumed facts, the apparent bias challenge in this case is not arguable. As stated at para. 64 of R(Good Law), the Court must first ascertain all the circumstances which have a bearing on the suggestions that the decision maker was possibly biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision maker was biased. As the Court also clarified at para 82 of R(Good Law), at the first stage, ‘all the circumstances’ include those not apparent at the time but emerging on investigation by the Court. In this case, those circumstances not only include the connections between Mr J and Ms H I am assuming to be true for present purposes and her lower scoring relative to the other evaluators, but also that she scored the same as the other evaluators on the crucial criterion of communication. In my judgement, the fair-minded and informed observer with the characteristics described by the Court at para. 65 of R(Good Law) would plainly conclude as follows. Firstly, the alleged ‘connections’ between Ms H and Mr J were relatively anodyne, consistent with a professional friendship, including when Mr J was an employee of the Claimant, so hardly consistent with antipathy to the Claimant. Secondly, Ms H’s scoring was not very far out of kilter with other (by definition, not apparently-biased) evaluators, except on innovation when she agreed with the others a higher score. Thirdly, the observer may think that Ms H’s scores overall, whilst lower on that one point, were hardly consistent with bias towards Bristow or against the Claimant, otherwise the disparity in her scoring from the others would have been much more pronounced. Given all that, at the second stage in my judgement the observer would almost certainly conclude there was no real possibility that Ms H was biased and I therefore consider this claim unarguable. I accept Mr McGurk’s concern in argument that there has not been disclosure and he flagged in the SFG that he may amend the pleading in the light of it. However, I am examining a claim of apparent bias. If disclosure reveals evidence of actual bias or prejudice, that can be adjudicated as part of the Blackpool ‘good faith consideration’ implied contract argument. Moreover, I have also reached that conclusion assuming for permission the Claimant’s pleaded facts are true, whereas the rule in Judicial Review is very different, as explained in para 86 of R(Good Law). For that additional reason too, this claim is not arguable.
127. Finally, even if I am wrong and the apparent bias challenge is arguable on the merits, in my judgement, even if Ms H had not been an evaluator, the outcome would not have been substantially different and so s.31(3C)/(3D) SCA 1981 means I should refuse permission. This is for three separate but cumulative reasons. Firstly, as noted, the key criterion on which the Claimant lost out to Bristow was communication where Ms H gave the same score as the other evaluators, namely 4/5, as I infer would a different evaluator. Secondly, the one score where Ms H was markedly lower was on innovation where the evaluators moderated to give the highest score: 5/5. Thirdly, whilst 2.5% appears to be a very slight difference between the Claimant and Bristow, due to the weighted scores, the only criteria where the difference between 4/5 and 5/5 would have made up that 2.5% deficit were the first three categories, where only 2 out of the 4 evaluators scored any of those three 5/5 and even then on different criteria. So it was highly likely a different evaluator than Ms H would have made no difference.”
-
Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2023] EWHC 2768 (TCC) (O'Farrell J)
Region: England and Wales
No apparent bias where two evaluators were former employees of winning tenderer and continued to be members of its pension scheme; no apparent bias through informal contact between evaluator and ex-colleagues who worked at winning tenderer
Membership of Pension Scheme
“755. In my judgment Mr Sterry’s and Mr Williamsons’ continued membership of the Bombardier pension scheme did not give rise to a conflict of interest within the meaning of regulation 42 for the following reasons.
756. I accept that, as submitted by Siemens, there is a distinction to be drawn between the past financial interest in Bombardier, through former employment of Mr Sterry and Mr Williamson, and the future financial interest in Bombardier, through continued membership of the Scheme. It is common ground that the fact of their previous long-term employment with Bombardier did not give rise to a conflict of interest. However, absence of a conflict of interest arising out of former employment does not necessarily indicate the absence of a conflict of interest arising out of ongoing membership of the Scheme. Therefore, it is necessary to consider the nature of their financial interest through the Scheme.
757. The material circumstances are that the pensions are not held with Bombardier but in a separate, independent Scheme. The Scheme is held within the Fund, which is administered by the Fund’s trustees. The assets of the Fund are held separate and apart from the operations of Bombardier and its affiliated companies. The Fund cannot be invested in Bombardier and the value of the Fund’s assets is not linked to Bombardier’s profitability or losses. The Fund is administered to meet long-term pension liabilities to past and present employees and the trustee directors are required to act in the best interest of the Fund’s beneficiaries, rather than the sponsoring employer’s interests.
758. The sequence of events that would have to unfold before any impact on the value of their pensions is: first, Bombardier would become insolvent as a result of not winning the competition; second, the Scheme would not be rescued by another employer taking on responsibility for it; third, the Fund would have a deficit of assets and cash to meet its liabilities or to buy benefits with an insurance company at the Pension Protection Fund levels of compensation; fourth, the shortfall in assets could not be recovered from Bombardier or others held responsible for the shortfall; fifth, the Scheme would be transferred to the Pension Protection Fund, which would pay compensation to the Scheme members, limited in the case of Mr Sterry and Mr Williamson to 90% compensation and a cap on increases for inflation of 2.5%. Therefore, although it could be said that Mr Sterry and Mr Williamson had an indirect financial interest in the outcome of the Procurement, such interest is so remote as to be immaterial.
759. In those circumstances, the fair-minded and informed observer would conclude that the indirect financial interests held by Mr Sterry and Mr Williamson through their ongoing membership of the Scheme would not compromise their impartiality and independence in the context of the Procurement.
760. In conclusion, I find that the pension interests of Mr Sterry and Mr Williamson did not give rise to a conflict within the meaning of regulation 42.
Steps to identify, manage or remedy any conflict of interest
761. Although not necessary in the light of the above finding, I have considered whether HS2 took adequate steps to identify, manage or remedy any conflict of interest. In my judgment, HS2 took adequate steps to comply with this obligation.
762. Firstly, both Mr Sterry and Mr Williamson properly raised the issue of their continued membership of the Bombardier pension scheme as a potential conflict of interest, although neither considered that it amounted to such conflict. Mr Williamson identified his membership of the Scheme on his COID form. Mr Sterry did not do so. For transparency reasons it would have been better had he recorded it on his COID form. However, he explicitly referred the issue of his final salary pension with the Scheme to Ms Parker for consideration by his email dated 5 June 2017.
763. Secondly, their continued membership of a legacy pension scheme was considered by the HS2 compliance team who, correctly, determined that there was no material conflict of interest posed by the Scheme.
764. Thirdly, adequate measures were taken by HS2 to avoid any distortion of competition and ensure equal treatment arising from the interests of any individual employees. Those involved in the evaluation of the tenders, including Mr Sterry and Mr Williamson, received specific training on confidentiality and conflict issues. The evaluation of each question to be scored in Stages 2 to 4 was carried out by three assessors independently, prior to a consensus reached in moderation meetings chaired by separate moderators. All assessments were reviewed by three levels of Review Panels to ensure that the rules of the Procurement were followed and the process was fair. The tenders were anonymised to ensure that the members of the Review Panels and other decision-makers were unaware of the identity of the tenderers affected by key decisions.
765. As summarised in Virdi, the ultimate question is whether the procedure in question was and was seen to be fair. The process of assessment and evaluation in this Procurement has been subject to careful and detailed scrutiny as set out earlier in this judgment. Having examined all the relevant facts, this court has found no unfairness or any appearance of unfairness.
Impact
766. Even if the above findings were wrong, Siemens has failed to show that any breach had an impact on the lawfulness of the Shortfall Tender Decision, the Lead Tenderer Decision, the Award Recommendation Decision or the Award Decision. Although they participated in the assessment exercises and reviews that fed into those decisions, Mr Sterry and Mr Williamson were not decision makers for any of them. The governance structure that was built into the procurement process was designed to ensure that no individual had undue influence at any stage of the process and all decisions were subject to review to ensure due process and fairness.
767. Finally, Siemens has not established that there was any real prospect that the above decisions would have been any different had Mr Sterry and Mr Williamson not participated in the Procurement assessment process.”
Contacts between evaluator and ex-colleagues
“775. The alleged breaches are set out in paragraph 46 of the Claim 9 Particulars of Claim:
“In breach of its obligations of equal treatment and/or transparency and/or proportionality, whether arising under Regulation 36 and/or otherwise, and/or in manifest error, the Defendant permitted, alternatively failed to take appropriate steps to prevent, a key individual involved in the Procurement (including in the evaluation of tenders and decisions relating to disqualification of tenders and the award of the Contract) from maintaining contacts with key individuals employed by Bombardier, an economic operator which participated in the Procurement and which, through its JV with Hitachi, submitted a tender. The same facts giving rise to those breaches also give rise to a specific breach of Regulation 42 of the UCR in that the Defendant failed to prevent and/or identify and/or remedy a conflict of interest arising out of Mr Sterry’s contacts with his former colleagues at Bombardier during the Procurement, including in particular during the evaluation of the tenders submitted.”
…
805. Siemens’ position is that, just as it accepts that prior employment does not without more constitute a conflict of interest, it also accepts that where an employee of HS2 has previously worked for a tenderer, that person may still have personal contacts with former colleagues, whether through friendship or professional activities, such as membership of an industry body. However such relationships must clearly be carefully regulated and monitored to avoid actual, potential or perceived conflicts of interest. Mr Sterry’s regular contact during the Procurement with Dr Carter, Ms Hudson and Mr Childs was in breach of HS2’s internal rules and gave rise to at least a perceived conflict of interest.
806. In my judgment the pleaded case in Claim 9 has no real prospect of success and is bound to fail. Mr Sterry’s continued contact with colleagues at Bombardier did not give rise to a conflict of interest within the meaning of regulation 42 for the following reasons.
807. The material circumstances are that during the Procurement Mr Sterry was in communication with his former colleagues from Bombardier, Dr Carter, Ms Hudson and Mr Childs. Mr Sterry made no attempt to conceal the contact that he continued to have with his former colleagues. His evidence in cross-examination was clear; the contact with those individuals was social; they did not work on the Procurement, they were not involved in the JV’s bid and they did not discuss the bid with him or ask any questions relating to the bid. I found Mr Sterry to be an honest, candid and straightforward witness. I accept his evidence on this issue.
808. It is pleaded that Dr Carter, Ms Hudson and Mr Childs were closely connected to issues of design and/or assurance which were integral to the Procurement. No particulars are given of this assertion but it falls short of an allegation that they were involved in the Procurement itself (an allegation that could not be sustained in the light of Mr Sterry’s evidence). It is further pleaded that a considerable amount of work on the train design and testing will be undertaken at the facilities in Derby. That may be correct but it does not impinge on the Procurement; future performance of the Contract is separate from involvement in the tender process.
809. A legitimate criticism pleaded by Siemens is that Mr Sterry should have reported his ongoing contact with former colleagues from Bombardier with the procurement operations team and entered it on the register for record and audit purposes. It would have been prudent for him to have disclosed such contact, given his significant role in the Procurement. I accept that he did not do so because the contacts were not with individuals involved in the Procurement and therefore there was no issue of impropriety. Even if this amounted to a breach of HS2’s internal rules, that of itself did not amount to a breach of the rules of the Procurement.
810. It is alleged that at various points in the Procurement, Mr Sterry’s actions and interventions were such as to provide a positive benefit to Bombardier and/or a disbenefit to Siemens. However, that ignores the fact that, in a number of the Section 2-4 challenges addressed earlier in this judgment, Siemens relied on Mr Sterry’s identification of weaknesses in the JV’s bid, including assessments of ‘Weak’ on some of the technical components. It is also significant that Mr Sterry was vociferous in identifying concerns regarding dwell time and his view that changes to the design were necessary. The matters pleaded in paragraph 47g of Claim 9 seek to add new substantive allegations attacking the technical compliance of the JV’s bid with the Mandatory TTS Requirements but, as submitted by HS2, such allegations would be time-barred and, on that ground alone, should be struck out.
811. For the reasons set out above in relation to Claims 7 and 8, I consider that the training of those involved in the evaluation of the tenders, including Mr Sterry, on confidentiality and conflict issues, together with the tender evaluation procedures and oversight through the Review Panels, provided adequate safeguards to avoid and manage any potential conflict of interest.
812. In those circumstances, the fair-minded and informed observer would conclude that the continued contact by Mr Sterry with his former colleagues during the Procurement would not compromise his impartiality and independence in the context of the Procurement.
813. I have considered the guidance set out in the authorities, cautioning against a ‘mini trial’ on applications to strike out and/or for summary judgment. But in this case the substantive trial has already taken place. As explained in Ms Zar in her fifteenth witness statement, Mr Sterry’s personal phone, including all messaging data, was searched and reviewed for relevance against Claims 1-6 and later against Claims 7-8. Therefore, in relation to those claims full disclosure has already been given of any relevant communications between Mr Sterry and personal contacts, whether HS2, Bombardier or other colleagues. Mr Sterry has already given evidence, and been cross-examined, in respect of the matters raised in Claim 9. In those circumstances, it would be oppressive and unjust to HS2 for it to be vexed with another trial, given the disruption, duration, expense and human resources that would be required, just on the chance that, on a further trail of inquiry, something might turn up.
814. In conclusion, I find that there is no real prospect of success on Claim 9 and it is bound to fail. For the above reasons, Claim 9 shall be struck out and summary judgment granted to HS2.”
-
R (On the Application of the Good Law Project) v Minister for the Cabinet Office [2022] EWCA Civ 21
-
EU - CJEU
-
Cases C-226/04 and C-228/04 La Cascina
Region: EU - CJEU
Member States can make the criteria for the application of discretionary exclusion grounds less onerous or more flexible (re Dir. 92/50)
“23 Article 29 of the Directive does not provide in this field for uniform application of the grounds of exclusion mentioned therein at Community level, since the Member States may choose not to apply those grounds of exclusion at all and opt for the widest possible participation in procedures for the award of public contracts or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level. In that context the Member States have the power to make the criteria laid down in Article 29 of the Directive less onerous or more flexible.
24 As regards, first, the question whether subparagraphs (e) and (f) of the first paragraph of Article 29 of the Directive must be interpreted as precluding a provision of national law which refers to the position of service providers who are ‘not in compliance’ with social security or tax obligations, that provision enables Member States to exclude any candidate who ‘has not fulfilled obligations’ relating to the payment of social security contributions and taxes ‘in accordance with [national] legal provisions’.
25 That provision does not contain a definition of ‘has not fulfilled obligations’. In the light of the considerations set out in paragraph 23 of this judgment, the authors of the Directive did not intend to give that concept an autonomous Community definition, but referred to national rules for that purpose. It is therefore for national rules to specify the content and scope of the obligations at issue and the conditions for their fulfilment.”
-
Case C-213/07 Michaniki
Region: EU - CJEU
In addition to exclusionary grounds in the Directive (Dir. 93/97 was at issue), Member States could provide for exclusionary measures to ensure observance of equal treatment and transparency but these had to be proportionate
The case, involving a rail infrastructure contract, concerned a Greek law, contained in the Greek constitution, which provided for exclusion from public contracts based on certain conflict of interest principles (concerning, in this case, shareholders having a relationship with persons who were shareholders in media companies)
“43 [The] first paragraph of Article 24 of Directive 93/37 must be read as listing exhaustively the grounds capable of justifying the exclusion of a contractor from participation in a contract for reasons, based on objective factors, that relate to his professional qualities. That provision therefore precludes Member States or contracting authorities from adding to the list contained in that provision other grounds for exclusion based on criteria relating to professional qualities (see, by analogy, La Cascina and Others, paragraph 22).
44 The exhaustive list set out in the first paragraph of Article 24 of Directive 93/37 does not however preclude the option for Member States to maintain or adopt substantive rules designed, in particular, to ensure, in the field of public procurement, observance of the principle of equal treatment and of the principle of transparency entailed by the latter, principles which are binding on contracting authorities in any procedure for the award of a public contract (see, to that effect, ARGE, paragraph 24, and Case C‑421/01 Traunfellner [2003] ECR I‑11941, paragraph 29).
45 Those principles, which mean, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (see, to that effect, Case C‑19/00 SIAC Construction [2001] ECR I-7725, paragraph 34, and Case C-448/01 EVN and Wienstrom [2003] ECR I‑14527, paragraph 47), constitute the basis of the directives on procedures for the award of public contracts (see, inter alia, Universale-Bau and Others, paragraph 91, and Case C‑315/01 GAT [2003] ECR I‑6351, paragraph 73), and the duty of contracting authorities to ensure that they are observed lies at the very heart of those directives (see, to that effect, Case C‑513/99 Concordia Bus Finland [2002] ECR I‑7213, paragraph 81, and Joined Cases C‑21/03 and C-34/03 Fabricom [2005] ECR I‑1559, paragraph 26).
46 Article 6(6) of Directive 93/37 states moreover that contracting authorities are to ensure that there is no discrimination between the various contractors.
47 It follows that, in addition to the grounds for exclusion based on objective considerations of professional quality, which are listed exhaustively in the first paragraph of Article 24 of Directive 93/37, a Member State is entitled to provide for exclusionary measures designed to ensure observance, in procedures for the award of public contracts, of the principles of equal treatment of all tenderers and of transparency.
48 However, in accordance with the principle of proportionality, which constitutes a general principle of Community law (see, inter alia, Case C-210/03 Swedish Match [2004] ECR I-11893, paragraph 47), such measures must not go beyond what is necessary to achieve that objective (see, to that effect, Fabricom, paragraph 34).
49 In view of the foregoing, the answer to the first question must be that the first paragraph of Article 24 of Directive 93/37 must be interpreted as listing exhaustively the grounds based on objective considerations of professional quality which are capable of justifying the exclusion of a contractor from participation in a public works contract. However, that directive does not preclude a Member State from providing for further exclusionary measures designed to ensure observance of the principles of equal treatment of tenderers and of transparency, provided that such measures do not go beyond what is necessary to achieve that objective.”
-
Case C‑465/11 Forposta
Region: EU - CJEU
National law providing for automatic exclusion where the contracting authority had terminated a contract was incompatible with the Directive and its provisions on grave professional misconduct
“26 [The] concepts of ‘professional’ ‘grave’ ‘misconduct’, in point (d) of the first subparagraph of Article 45(2) can be specified and explained in national law, provided that it has regard for EU law.
27 [The] concept of ‘professional misconduct’ covers all wrongful conduct which has an impact on the professional credibility of the operator at issue and not only the violations of ethical standards in the strict sense of the profession to which that operator belongs, which are established by the disciplinary body of that profession or by a judgment which has the force of res judicata
28 [The] failure of an economic operator to abide by its contractual obligations can, in principle, be considered as professional misconduct.
30 Nevertheless, the concept of ‘grave misconduct’ must be understood as normally referring to conduct by the economic operator at issue which denotes a wrongful intent or negligence of a certain gravity on its part. Accordingly, any incorrect, imprecise or defective performance of a contract or a part thereof could potentially demonstrate the limited professional competence of the economic operator at issue, but does not automatically amount to grave misconduct.
31 In addition, in order to find whether ‘grave misconduct’ exists, a specific and individual assessment of the conduct of the economic operator concerned must, in principle, be carried out.
32 However, the rules at issue in the main proceedings oblige the contracting authority to exclude an economic operator from the procedure for the award of a contract when, owing to circumstances for which the economic operator is responsible, the contracting authority has annulled or terminated a contract with that economic operator in the framework of a previous public contract.
33 In this regard, it is important to note that, given the specific characteristics of national legal systems as regards civil liability, the concept of ‘circumstances for which the economic operator is responsible’ is very broad and could extend to situations beyond conduct which denotes a wrongful intent or negligence of a certain gravity by the economic operator at issue. Yet, the first subparagraph of Article 54(4) of Directive 2004/17 refers to a power to apply the exclusion criteria listed in Article 45 of Directive 2004/18 ‘on the terms and conditions set out therein’, meaning that the concept of ‘grave misconduct’, as referred to in paragraph 25 above, cannot be replaced by the concept of ‘circumstances for which the economic operator concerned is responsible’.
34 Furthermore, the national legislation at issue in the main proceedings itself establishes the parameters that require the contracting authority at issue to exclude an economic operator from a newly undertaken procedure for the award of a contract due to the previous conduct of that operator, without allowing the contracting authority the power to assess, on a case-by-case basis, the gravity of the allegedly wrongful conduct of that operator in the performance of the previous contract.
35 Consequently, it is clear that the national rules at issue in the main proceedings do not merely follow the general framework for applying point (d) of the first subparagraph of Article 45(2) of Directive 2004/18, but impose on the contracting authorities mandatory requirements and conclusions to be automatically drawn in certain circumstances, thus exceeding the discretion enjoyed by the Member States, pursuant to the second subparagraph of Article 45(2) of that directive, in specifying the implementing conditions for the ground for exclusion set out in point (d) of the first subparagraph of Article 45(2) with regard for EU law.
36 In the light of all the foregoing considerations, the answer to the first question is that point (d) of the first subparagraph of Article 45(2) of Directive 2004/18 must be interpreted as precluding national legislation which provides that a situation of grave professional misconduct, which leads to the automatic exclusion of the economic operator at issue from a procedure for the award of a public contract in progress, arises where the contracting authority concerned has annulled, terminated or renounced a public contract with that same economic operator owing to circumstances for which that operator is responsible, where the annulment, termination or renouncement occurred in the three-year period before the procedure was initiated and the value of the non-performed part of the contract amounted to at least 5% of the contract’s value.
…
38. While it is indeed apparent from Article 54(4) of Directive 2004/17 that the contracting powers can lay down criteria for qualitative selection in addition to the grounds for exclusion set out in Article 45 of Directive 2004/18, the fact remains that, in accordance with settled case-law of the Court, Article 45(2) of Directive 2004/18 exhaustively lists the grounds capable of justifying the exclusion of a contractor from participation in a contract for reasons, based on objective factors, that relate to his professional qualities and therefore precludes Member States from adding to the list contained in that provision other grounds for exclusion based on criteria relating to professional qualities (see Joined Cases C‑226/04 and C‑228/04 La Cascina and Others [2006] ECR I‑1347, paragraph 22; Michaniki, paragraph 43; and Case C‑74/09 Bâtiments et Ponts Construction and WISAG Produktionsservice, [2010] ECR I‑7271, paragraph 43).
39 It is only when the grounds for exclusion concerned do not relate to the professional qualities of economic operators, and, therefore, do not fall within that exhaustive list that it is possible to consider whether those grounds may be permissible under the principles or other rules of EU public procurement law (see, to this effect, Fabricom, paragraphs 25 to 36; Michaniki, paragraphs 44 to 69; and Case C‑538/07 Assitur [2009] ECR I‑4219, paragraphs 21 to 33).”
-
Case C‑538/13 eVigilo
Region: EU - CJEU
The concept of 'bias' is a matter of national law; an objective bias test is compatible with EU law; contracting authorities are required to determine whether conflicts of interest exist and have a duty to investigate claims of bias and conflicts of interest
An unsuccessful tenderer for a contract for a public warning system using mobile networks claimed that there were professional relationships between experts employed by the contracting authority to evaluate tenders, and members of the winning consortium
“39 [In] the absence of EU rules governing the matter, it is for every Member State to lay down the detailed rules of administrative and judicial procedures for safeguarding rights which individuals derive from EU law [subject to the principles of equivalence and effectiveness]
…
41 It is not, as a general rule, contrary to those principles for an expert’s bias to be established in a Member State solely on the basis of an objective situation in order to prevent any risk that the public contracting authority could be guided by considerations unrelated to the contract in question and liable, by virtue of that fact alone, to give preference to one tenderer.
42 Concerning the rules on evidence in that regard, it should be pointed out that, in accordance with Article 2 of Directive 2004/18, the contracting authorities are to treat economic operators equally and non-discriminatorily and to act in a transparent way. It follows that they are assigned an active role in the application of those principles of public procurement.
43 Since that duty relates to the very essence of the public procurement directives (see judgment in Michaniki, C‑213/07, EU:C:2008:731, paragraph 45), it follows that the contracting authority is, at all events, required to determine whether any conflicts of interests exist and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. It would be incompatible with that active role for the applicant to bear the burden of proving, in the context of the appeal proceedings, that the experts appointed by the contracting authority were in fact biased. Such an outcome would also be contrary to the principle of effectiveness and the requirement of an effective remedy laid down in the third subparagraph of Article 1(1) of Directive 89/665, in light, in particular, of the fact that a tenderer is not, in general, in a position to have access to information and evidence allowing him to prove such bias.
44 Thus, if the unsuccessful tenderer presents objective evidence calling into question the impartiality of one of the contracting authority’s experts, it is for that contracting authority to examine all the relevant circumstances having led to the adoption of the decision relating to the award of the contract in order to prevent and detect conflicts of interests and remedy them, including, where appropriate, requesting the parties to provide certain information and evidence.
45 Evidence such as the claims in the main proceedings relating to the connections between the experts appointed by the contracting authority and the specialists of the undertakings awarded the contract, in particular, the fact that those persons work together in the same university, belong to the same research group or have relationships of employer and employee within that university, if proved to be true, constitutes such objective evidence as must lead to a thorough examination by the contracting authority or, as the case may be, by the administrative or judicial control authorities.
46 Subject to compliance with the obligations under EU law, and specifically with those referred to in paragraph 43 above, the concept of ‘bias’ and the criteria for it are to be defined by national law. The same applies to the rules relating to the legal effects of possible bias. Thus, it is for national law to determine whether, and if so to what extent, the competent administrative and judicial authorities must take into account the fact that possible bias on the part of the experts had no effect on the decision to award the contract.
47 In the light of the foregoing considerations, the answer to question 1(a) and (b) is that the third subparagraph of Article 1(1) of Directive 89/665 and Articles 2, 44(1) and 53(1)(a) of Directive 2004/18 must be interpreted as not precluding a finding that the evaluation of the tenders is unlawful on the sole ground that the tenderer has had significant connections with experts appointed by the contracting authority who evaluated the tenders. The contracting authority is, at all events, required to determine the existence of possible conflicts of interests and to take appropriate measures in order to prevent and detect conflicts of interests and remedy them. In the context of the examination of an action for annulment of an award decision on the ground that the experts were biased, the unsuccessful tenderer may not be required to provide tangible proof of the experts’ bias. It is, in principle, a matter of national law to determine whether, and if so to what extent, the competent administrative and judicial control authorities must take account of the fact that possible bias on the part of experts had an effect on the decision to award the contract.”
-
Case C-41/18 Meca
Region: EU - CJEU
A national rule suspending the possibility for a contracting authority to exclude a tenderer for poor prior performance on the basis that the earlier contract termination was subject to challenge, was not consistent with Article 57 of Directive 2014/24
A provider of catering services, Sirio, had a public contract for school catering terminated on account of food poisoning. It challenged the termination in the Italian courts. Italian legislation provided that grave professional misconduct included deficiencies in an earlier public contract which led to termination, where the termination had not been challenged in court or upheld following legal proceedings. The effect of this Italian rule was that Sirio could not be excluded from a new competition on the basis of the earlier termination, as the legal challenge against that termination was still pending. A competitor, Meca, challenged the failure of the contracting authority to exclude Sirio in the new competition.
The CJEU held that the Italian rule was not compatible with Article 57 of Directive 2014/24, emphasising that the discretion on the part of a contracting authority to exclude a provider could not be stifled by a rule which effectively suspended the possibility to exclude pending a legal challenge to the termination. The CJEU held:
“29 [The] option available to any contracting authority to exclude a tenderer from a procurement procedure is particularly intended to enable it to assess the integrity and reliability of each of the tenderers, as is apparent from Article 57(4)(c) and (g) and recital 101 of Directive 2014/24.
30 … [Those] two grounds for exclusion are based on an essential element of the relationship between the successful tenderer and the contracting authority, namely the reliability of the successful tenderer, on which the contracting authority’s trust is founded.
32 [If] a contracting authority were to be automatically bound by an assessment conducted by a third party, it would probably be difficult for it to pay particular attention to the principle of proportionality when applying the optional grounds for exclusion. According to recital 101 of Directive 2014/24, that principle implies in particular that, before deciding to exclude an economic operator, that authority should take into account the minor nature of the irregularities committed or the repetition of minor irregularities…
34 [It] is clear from the wording of Article 57(4) of Directive 2014/24 that the EU legislature intended to confer on the contracting authority, and on it alone, the task of assessing whether a candidate or tenderer must be excluded from a procurement procedure during the stage of selecting the tenderers.
37 It is clear that a national provision such as Article 80(5)(c) of the Public Procurement Code [the Italian law] is not capable of safeguarding the effectiveness of the optional grounds for exclusion laid down in Article 57(4)(c) and (g) of Directive 2014/24.
38 The discretion which Article 57(4) of Directive 2014/24 confers on the contracting authority can be hamstrung merely because a candidate or tenderer brings an action challenging the early termination of a prior public contract awarded to it, even though its conduct appeared sufficiently deficient as to warrant that early termination.”
-
Case C-267/18 Delta
Region: EU - CJEU
Contracting authority must make its own assessment as to whether termination under an earlier contract justified the exclusion of the tenderer
The case concerned the exclusion of a construction consortium from a tendering procedure, on the basis of early termination of another contract, let by a different contracting authority, due to the consortium having used a subcontractor without prior authorisation. The Delta consortium argued that the earlier termination did not prove that it committed serious breaches of its contractual obligations and that it constituted only a minor irregularity and it also pointed to the fact that the termination had been challenged before the courts.
The CJEU repeated much of the analysis in Meca. It also emphasised that a contracting authority had to make its own assessment as to whether termination under an earlier contract justified the exclusion of the tenderer – it must “examine and assess the facts itself” ([27]). The CJEU went on to explain:
“27. In that regard … it is apparent from the wording of Article 57(4)(g) of Directive 2014/24 that the irregularity committed by the tenderer must have been serious enough to make it justifiable, in the light of the principle of proportionality, to terminate the contract early.
28. It follows that a contracting authority cannot automatically infer from the decision of another contracting authority to terminate a prior public contract early, on the ground that the successful tenderer subcontracted part of the works without its prior authorisation, that significant or persistent deficiencies, within the meaning of Article 57(4)(g) of Directive 2014/24, have been committed by that successful tenderer in the performance of a substantive requirement under that public contract.
29. It is for the contracting authority to carry out its own evaluation of the economic operator’s conduct covered by the early termination of a prior public contract. In that regard, it must examine, diligently and impartially, on the basis of all the relevant factors, in particular the early termination decision, and in the light of the principle of proportionality, whether that operator is, from its point of view, responsible for significant or persistent deficiencies in the performance of a substantive requirement imposed on it under that contract, those deficiencies being such as to break the relationship of trust with the economic operator in question”.
This assumes that the contracting authority, which is making the decision whether to exclude a company, has the requisite information available to it. On the question of the disclosure of information to the contracting authority, the CJEU noted:
“34. Furthermore, it is for CNAIR to assess whether or not, in failing to inform it of the early termination of contract No 1, Consortium No 2 adopted conduct caught by Article 57(4)(h) of Directive 2014/24. As the Advocate General observed, in essence, in point 53 of his Opinion, that provision encompasses both active conduct, such as falsification, and an omission, provided that the communication of false information is, in the same way as the concealment of true information, likely to have a bearing on the decision adopted by the contracting authority.
…
36. In the present case, since the early termination of contract No 1 has been formally determined, it was for Consortium No 2, in accordance with the requirements of transparency and good faith, to inform the contracting authority of its situation. Accordingly, it ought to have provided at the outset all the information that could prove that the characterisation as subcontracting was mistaken, so that it had not failed to fulfil its obligations in the context of contract No 1, or that the failure to obtain the contracting authority’s authorisation in the context of the prior public contract constituted only a minor irregularity. Such information could in particular have been mentioned in the standard form for the European Single Procurement Document, annexed to Implementing Regulation 2016/7. Part III of that form, which concerns ‘Exclusion grounds’, includes Point C on ‘Grounds relating to insolvency, conflicts of interests or professional misconduct’. In the context of Point C, tenderers must, in particular, answer whether they are guilty of grave professional misconduct and, if so, they are requested to provide details”.
-
Case C-395/18 Tim
Region: EU - CJEU
Tenderer may be excluded where a failure to fulfil the obligations in Article 18(2) (in this case, re labour law) is established with regard to a proposed sub-contractor; however, national law cannot provide for such exclusion to be automatic and tenderer must have an opportunity to demonstrate its reliability
“34. It is apparent from the case-law of the Court of Justice that Article 57(7) of Directive 2014/24 does not provide for uniform application at Union level of the exclusion grounds it mentions, since the Member States may choose not to apply those grounds, or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level. Member States therefore enjoy some discretion in determining the implementing conditions of the optional grounds for exclusion laid down in Article 57(4) of Directive 2014/24 (see, by analogy, judgment of 20 December 2017, Impresa di Costruzioni Ing. E. Mantovani et Guerrato, C‑178/16, EU:C:2017:1000, paragraphs 31 and 32).
39 [The] need to ensure appropriate compliance with the obligations referred to in Article 18(2) of Directive 2014/24 must enable Member States, when determining the implementing conditions of the ground for exclusion referred to in Article 57(4)(a) of that directive, to consider that the party responsible for the failure to fulfil obligations may be not only the economic operator who submitted the tender, but also the subcontractors which the latter intends to use. The contracting authority may legitimately claim to award the contract only to economic operators who, at the stage of the contract award procedure, demonstrate their capacity to ensure in an appropriate manner, during the performance of the contract, that those obligations are fulfilled, where appropriate by having recourse to subcontractors who themselves comply with those obligations.
40 It follows that Member States may provide, for the purposes of applying Article 57(4)(a) of Directive 2014/24, that the contracting authority has the option, or even the obligation, to exclude the economic operator who submitted the tender from participating in the contract award procedure where a failure to fulfil the obligations referred to in Article 18(2) of that directive is established with regard to one of the subcontractors referred to in that operator’s tender.
44 [When] adopting the implementing conditions of Article 57 of Directive 2014/24, must, under paragraph 7 of that article, comply with EU law.
45 In that regard, it should be borne in mind, first, that the contracting authorities must, throughout the procedure, observe the principles of procurement set out in Article 18 of Directive 2014/24, which include, inter alia, the principles of equal treatment and proportionality…
The need to comply with the principle of proportionality is also reflected in the first subparagraph of Article 57(6) of Directive 2014/24, according to which any economic operator who, inter alia, is in the situation referred to in Article 57(4)(a) of that directive including, as is apparent from paragraph 43 of the present judgment, by the effect of a failure found in respect of a subcontractor indicated in the tender, may provide evidence to show that the measures it has taken are sufficient to demonstrate its reliability despite the existence of that ground for exclusion. The first subparagraph of Article 57(6) of Directive 2014/24 specifies that, if such evidence is considered sufficient, the economic operator concerned must not be excluded from the contract award procedure. That provision thus introduces a mechanism for corrective measures (self-cleaning) which underlines the importance attaching to the reliability of the economic operator (judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraphs 40 and 41).
50 It follows that, where he runs the risk of being excluded from participation in the procurement procedure because of a failure to fulfil environmental, social and labour law obligations attributable to one of the subcontractors he is considering using, the economic operator who submitted the tender can demonstrate to the contracting authority that he remains reliable despite the existence of such a ground for exclusion, the contracting authority being required, in accordance with the third subparagraph of Article 57(6) of Directive 2014/24, to assess the evidence provided by that operator in the light of the seriousness of the situation and the particular circumstances of the case.
51 However, the national legislation at issue in the main proceedings provides in a general and abstract manner for the automatic exclusion of the economic operator where a failure to fulfil obligations under environmental, social and labour law is established in relation to one of the subcontractors indicated in that operator’s tender, irrespective of the circumstances which led to that failure, and thus establishes an irrebuttable presumption that the economic operator must be excluded for any failure attributable to one of its subcontractors, without leaving the contracting authority the option of assessing, on a case-by-case basis, the particular circumstances of the case or the economic operator being able to demonstrate its reliability despite the finding of that failure.
52 In particular, such legislation does not allow the contracting authority to take account, for the purposes of assessing the situation, of a series of relevant factors such as the means which the economic operator submitting the tender had at its disposal to verify whether there was a failure on the part of the subcontractors or any indication in its tender that it is able to perform the contract without necessarily having recourse to the subcontractor in question.
53 In those circumstances, national legislation providing for such automatic exclusion of the economic operator who submitted the tender infringes the principle of proportionality by requiring the contracting authorities to proceed automatically to that exclusion on the ground of the failure of a subcontractor and thus exceeding the discretion enjoyed by the Member States pursuant to Article 57(7) of Directive 2014/24, in specifying the implementing conditions for the ground for exclusion set out in Article 57(4)(a) of that directive in compliance with EU law. Such a regulation also deprives the economic operator of the possibility of demonstrating, in accordance with Article 57(6) of Directive 2014/24, its reliability despite the existence of a failure to fulfil obligations on the part of one of its subcontractors (see, by analogy, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 30; of 13 December 2012, Forposta and ABC Direct Contact, C‑465/11, EU:C:2012:801, paragraphs 34 and 35; and of 26 September 2019, Vitali, C‑63/18, EU:C:2019:787, paragraphs 40 and 41).
54 Consequently, an automatic exclusion of the economic operator who submitted the tender, provided for by the national legislation, in so far as it deprives, first, that operator of the possibility of providing detailed information about the situation and, secondly, the contracting authority of any discretion in that regard, cannot be regarded as being compatible with Article 57(4) and (6) of Directive 2014/24 and the principle of proportionality (see, by analogy, judgment of 26 September 2019, Vitali, C‑63/18, EU:C:2019:787, paragraphs 42 and 43).”
-
Case C‑416/21 Landkreis Aichach-Friedberg
Region: EU - CJEU
The exclusion ground for anti-competitive agreements (Art. 57(4)(d) of Dir 2014/24) was not limited to cases where a breach of Art. 101 TFEU was established but covered situations where there were sufficiently plausible indications of such an agreement
Two different tenders for bus services were submitted under the direction of the same person – one tenderers was a company through which the trader operated and the other was a company of which the trader was the managing director and sole shareholder. Both tenderers were excluded under the Art 57(4)(4) exclusion ground for anti-competitive agreements.
“48 Consequently, it must be concluded that, although the existence of an agreement within the meaning of Article 101 TFEU must be regarded as falling within the optional ground for exclusion set out in point (d) of the first subparagraph of Article 57(4) of Directive 2014/24, the fact remains that the latter provision has a broader scope, which also covers economic operators which have entered into anticompetitive agreements that do not fall within Article 101 TFEU. Therefore, the mere fact that such an agreement between two economic operators does not fall within that article does not prevent it from being covered by that optional ground of exclusion.
49 However, in order to give an answer that will be of use to the referring court, the Court emphasises that that provision of Directive 2014/24 covers the case where there is sufficient evidence to enable the contracting authority to consider that two or more economic operators have entered into an agreement aimed at distorting competition, which necessarily presupposes that there is a common intention on the part of at least two different economic operators.
50 In the present case, it should be noted, as the European Commission states, that in a case such as that at issue in the main proceedings, it cannot be considered that two economic operators who, in substance, pass through the same natural person to take their decisions, may enter into ‘agreements’ between them, in so far as there do not appear to be two separate intentions that are capable of converging. It is, however, for the referring court to determine whether, having regard to the link between J and K. Reisen, it is possible for them to enter into such agreements aimed at distorting competition. If that is not the case, the optional ground for exclusion provided for in point (d) of the first subparagraph of Article 57(4) of Directive 2014/24 cannot apply to their situation.
51 In the light of the foregoing considerations, the answer to the first question is that point (d) of the first subparagraph of Article 57(4) of Directive 2014/24, read in conjunction with the third subparagraph of Article 80(1) of Directive 2014/25, must be interpreted as meaning that the optional ground for exclusion provided for in point (d) of the first subparagraph of Article 57(4) covers cases where there are sufficiently plausible indications to conclude that economic operators have entered into an agreement prohibited by Article 101 TFEU, but is not limited solely to the agreements provided for in that article.”
“57 However, the fact that the optional grounds for exclusion set out in Article 57(4) of Directive 2014/24, to which the third subparagraph of Article 80(1) of Directive 2014/25 refers, are listed exhaustively does not prevent the principle of equal treatment, provided for in Article 36(1) of that directive, from precluding the award of the contract in question to economic operators which constitute an economic unit and whose tenders, although submitted separately, are neither autonomous nor independent.
58 Such an exhaustive list does not preclude the option for Member States to maintain or adopt substantive rules designed, in particular, to ensure, as regards public contracts, observance of the principle of equal treatment and of the principle of transparency entailed by the latter, principles which are binding on contracting entities in any procedure for the award of a public contract and which constitute the basis of the EU directives on procedures for the award of public contracts, provided that the principle of proportionality is observed (see, by analogy, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 21, and of 8 February 2018, Lloyd’s of London, C‑144/17, EU:C:2018:78, paragraph 30).
59 In particular, in the case of related tenderers, the principle of equal treatment provided for in Article 36(1) of Directive 2014/25 would be infringed if those tenderers were allowed submit coordinated or concerted tenders, that is to say, tenders that are neither autonomous nor independent, which would be likely to give them unjustified advantages in relation to the other tenderers (see, by analogy, judgment of 17 May 2018, Specializuotas transportas, C‑531/16, EU:C:2018:324, paragraph 29).
60 In that context, observance of the principle of proportionality requires the contracting authority to examine and assess the facts, in order to determine whether the relationship between two entities has actually influenced the respective content of the tenders submitted in the same tendering procedure, a finding of such influence, in any form, being sufficient for those undertakings to be excluded from the procedure (see, to that effect, judgments of 19 May 2009, Assitur, C‑538/07, EU:C:2009:317, paragraph 32, and of 8 February 2018, Lloyd’s of London, C‑144/17, EU:C:2018:78, paragraph 38).
61 The finding that the links between tenderers had a bearing on the content of the tenders they submitted during the same procedure suffices for those tenders not to be taken into consideration by the contracting authority, as tenders by related undertakings must be submitted completely autonomously and independently (see, to that effect, judgment of 17 May 2018, Specializuotas transportas, C‑531/16, EU:C:2018:324, paragraph 38).
…
63 Accordingly, should the referring court reach the conclusion, following the necessary checks and assessments, that the tenders at issue in the main proceedings were not submitted autonomously and independently, Article 36(1) of Directive 2014/25 precludes the award of the contract at issue to tenderers that have submitted such tenders.
64 In the light of the foregoing considerations, the answer to the second and third questions is that Article 57(4) of Directive 2014/24, read in conjunction with the third subparagraph of Article 80(1) of Directive 2014/25, must be interpreted as meaning that Article 57(4) exhaustively regulates the optional grounds for exclusion capable of justifying the exclusion of an economic operator from participation in a procurement procedure for reasons based on objective factors relating to its professional qualities, to a conflict of interest or to a distortion of competition that would arise from its involvement in that procedure. However, Article 57(4) does not prevent the principle of equal treatment, provided for in Article 36(1) of Directive 2014/25, from precluding the award of the contract in question to economic operators which constitute an economic unit and whose tenders, although submitted separately, are neither autonomous nor independent.”
-
Case C-66/22 Infraestruturas de Portugal SA
Region: EU - CJEU
Member States cannot limit the possibility to exclude a tenderer under Article 57(4)(d) (competition grounds) to anti-competitive conduct in the specific procedure itself; and precludes a rule limiting the power to exclude a tenderer to the national competition authority only; any exclusion decision under Article 57(4)(d) must be reasoned; unsuccessful tenderers can invoke Article 57(4)
The Portuguese case concerned whether a successful tenderer ought to have been excluded on the basis it had been fined by the national competition authority for breaching competition law in the course of an earlier public procurement.
“51 As regards, first of all, the wording of that first subparagraph of Article 57(4), it is clear that the choice as to the decision whether or not to exclude an economic operator from a public procurement procedure on one of the grounds set out in that provision falls to the contracting authority, unless the Member States decide to transform that option to exclude into an obligation to do so. Accordingly, the Member States must transpose that provision either by allowing or by requiring contracting authorities to apply the exclusion grounds laid down by the latter provision.
62 As regards, in the third place, Futrifer’s argument that point (d) of the first subparagraph of Article 57(4) of Directive 2014/24 cannot be relied upon by an unsuccessful tenderer – such as Toscca, in the present case – it is sufficient to observe, for the purposes of the answer to be given to the present request for a preliminary ruling, that the Court has already ruled that if the right to an effective remedy – as guaranteed by Article 47 of the Charter – is not to be disregarded, a decision by which a contracting authority refuses, even implicitly, to exclude an economic operator from a procurement procedure on one of the facultative grounds for exclusion laid down in the first subparagraph of Article 57(4) of Directive 2014/24 must necessarily be capable of being challenged by any person having or having had an interest in obtaining a specific contract or having been or at risk of being harmed by a breach of that provision (judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 143).
72 [Point] (d) of the first subparagraph of Article 57(4) of Directive 2014/24 must be interpreted as precluding national legislation which limits the possibility of excluding a tender from a tenderer on account of the existence of significant evidence of conduct on the part of that tenderer liable to distort competition rules in the public procurement procedure in the context of which that type of conduct has arisen.
75 As is clear from the case-law cited in paragraphs 55 and 56 of the present judgment, the EU legislature intended to entrust the contracting authority, and only the contracting authority, with the task of assessing whether a candidate or tenderer is to be excluded from a public procurement procedure by determining the integrity and reliability of each of the economic operators participating in that procedure.
76 In particular, the facultative ground for exclusion mentioned in point (d) of the first subparagraph of Article 57(4) of Directive 2014/24, read in conjunction with recital 101 of that directive, is based on an essential element of the relationship between the successful tenderer in question and the contracting authority, namely the reliability of the successful tenderer, on which the contracting authority’s trust is founded (judgment of 15 September 2022, J. Sch. Omnibusunternehmen and K. Reisen, C‑416/21, EU:C:2022:689, paragraph 41 and the case-law cited).
77 According to the case-law of the Court, where contracting authorities apply facultative grounds for exclusion, they must have particular regard to the principle of proportionality, which requires that they carry out a specific and individual assessment of the conduct of the individual concerned, on the basis of all the relevant factors (see, to that effect, judgments of 3 June 2021, Rad Service and Others, C‑210/20, EU:C:2021:445, paragraph 40), and of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, EU:C:2021:700, paragraphs 156 and 157).
78 It follows that, in a situation such as that at issue in the main proceedings, in which there is a specific procedure regulated by EU law or by national law for pursuing certain breaches of competition rules and in which the national competition authority is entrusted with carrying out investigations in this connection, the contracting authority must, within the context of the assessment of the evidence provided, rely in principle on the outcome of such a procedure (see, to that effect, judgment of 24 October 2018, Vossloh Laeis, C‑124/17, EU:C:2018:855, paragraph 25).
79 The decision of such an authority, finding that such a breach has been committed and, on that ground, imposing a financial penalty on a tenderer, may take on particular significance, and all the more so if that penalty is accompanied by a temporary prohibition on participation in public procurement procedures. Where such a decision may lead the contracting authority to exclude that economic operator from the public procurement procedure in question, conversely, the absence of such a decision can neither prevent nor exempt the contracting authority from carrying out such an assessment.
80 That assessment should be carried out having regard to the principle of proportionality and taking into account all the relevant factors in order to determine whether the application of the ground for exclusion referred to in point (d) of the first subparagraph of Article 57(4) of Directive 2014/24 is justified.
84 [Point] (d) of the first subparagraph of Article 57(4) of Directive 2014/24 must be interpreted as precluding national legislation which confers the power to decide to exclude economic operators from public procurement procedures, on the grounds of a breach of competition rules, solely on the national competition authority.
91 [Point] (d) of the first subparagraph of Article 57(4) of Directive 2014/24, read in the light of the principle of sound administration, must be interpreted as meaning that the decision of the contracting authority as to the reliability of an economic operator, adopted pursuant to the exclusion ground laid down in that provision, must be reasoned.”
-
Cases C-226/04 and C-228/04 La Cascina
-
EU - General Court
-
Case T-160/03 AFCon
Region: EU - General Court
Failure by the Commission to investigate a conflict of interest (external evaluator was an employee of one of the tenderers) gave rise to liability for damages
Having discovered a conflict of interest – an evaluator was an employee of the one of the companies in the consortium that made up the winning tenderer – the Commission cancelled the first evaluation and appointed a new evaluation committee to carry out a second evaluation. The same tenderer was successful. The Applicant challenged the decision on various grounds, including relating to the conflict of interest.
“74 The fact that a person who helps to evaluate and select tenders for a public contract has the contract awarded to him is highly questionable and constitutes a chargeable offence under the criminal law of several Member States, regard being had to the principle of equal treatment in the award of public contracts, the concern for sound financial management of Community funds and the prevention of fraud (Case T‑277/97 Ismeri Europa v Court of Auditors [1999] ECR II-1825, paragraph 112).
75 After the discovery of a conflict of interests between a member of the evaluation committee and one of the tenderers, the Commission must act with due diligence and on the basis of all the relevant information when formulating and adopting its decision on the outcome of the procedure for the award of the tender at issue. That obligation derives in particular from the principles of sound administration and equal treatment (see, by analogy, Case T‑231/97 New Europe Consulting and Brown v Commission [1999] ECR II-2403, paragraph 41). The Commission is required to ensure at each stage of a tendering procedure equal treatment and, thereby, equality of opportunity for all the tenderers (see, to that effect, Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑0000, paragraph 108, and Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 164).
76 It is necessary to examine whether, in this instance, the Commission acted in accordance with that obligation.
77 In that regard, where a conflict of interests between one of the tenderers and a member of the committee responsible for evaluating the tenders comes to light, the Commission has some discretion to determine the measures which must be taken in respect of the conduct of the subsequent stages of the procedure for the award of the tender.
78 It is not disputed that, once it had been put on notice by the Chairman of the Evaluation Committee, the Commission did not investigate the links between Mr A and GFA in order to satisfy itself that GFA did not seek to influence the evaluation committee’s proceedings. The Commission confirmed at the hearing that there was no evidence suggesting that GFA sought to influence the proceedings, using one of its employees sitting on the evaluation committee as an intermediary. In response to the Court’s questions, the Commission none the less stated that it had taken no measures of inquiry in order to ascertain whether GFA and Mr A had collaborated during the tendering procedure. The Commission insisted on the fact that, in the absence of anything giving it grounds for suspecting there to have been fraud, there was no reason to investigate GFA’s role.
79 Given the circumstances of the present case, such an assessment is manifestly incorrect. Since it had failed to investigate whether there was any collusion between GFA and Mr A, the Commission in fact had no grounds for ruling out, with any reasonable degree of certainty, the possibility that GFA had sought to influence the tendering procedure. Rather, a number of objective and consistent factors should have led the Commission to take particular care and to consider the possibility that there was collusion between GFA and Mr A. Those factors reasonably gave grounds for forming the view that the conflict of interests could have arisen not merely as the result of a combination of circumstances but as the result of a fraudulent intention.
80 In the first place, it is necessary to stress the seriousness of the terms in which the Chairman of the evaluation committee criticised the questionable nature of the first evaluation. He proposed in a note of 4 January 2000 that the evaluation should be cancelled and that a further evaluation should take place before a committee with a different membership. The Chairman of the evaluation committee had, in particular, drawn attention to the ‘highly questionable’ nature of the results of the first evaluation owing to the fact that Mr A was then working ‘as team leader in a Dutch Government sponsored project in Ukraine being implemented by Agriment International, a member of Stoas Holding Group’.
81 In addition to that conflict of interests, the Chairman of the evaluation committee also pointed out that there were signs that Mr A had, in fact, sought to give preferential treatment to GFA to the detriment of the other tenderers. The note stated that ‘Mr A [had] placed the companies that the other three evaluators [had] ranked either first or second in fourth or fifth position’. He added that ‘[t]aking these issues together, there are significant suspicions of a “Conflict of Interest” and resulting preferential markings for the GFA/Stoas partnership’.
82 The Chairman of the evaluation committee had also stated that GFA’s financial proposal of EUR 2.13 million ‘was significantly below those of the first and second companies’ and that ‘such a low offer could be interpreted as a form of dumping’. It is thus clear from the statements and findings of the Chairman of the evaluation committee that the questionable nature of GFA’s tender derived not only from the conflict of interests resulting from the presence of an employee of the consortium on the committee but also from the fact that its financial proposal was abnormally low.
83 In the second place, the circumstances were such as to give reasonable grounds for doubting that the conflict of interests in which Mr A found himself arose purely by chance or could be attributed exclusively to his negligence.
84 To start with, Mr A had failed to tell the Commission of his activities within the Stoas Group. Thus, when he applied for the post of external evaluator and in the course of the evaluation committee’s subsequent work, Mr A did not disclose that he was carrying out managerial tasks for the Stoas Group in connection with an agricultural assistance project (see the note of 4 January 2000). The relevance of such information for the purposes of Mr A’s appointment as an evaluator was particularly obvious given that the tender FDRUS 9902 concerned agricultural assistance services showing certain similarities with those for which Mr A was responsible in Ukraine.
85 Further, Mr A, far from merely failing to disclose his activities within the Stoas Group, expressly stated that he was not linked, directly or indirectly, with any of the tenderers, either individually or in their capacity as members of a consortium. It is evident that on 16 December 1999 Mr A had signed a declaration of impartiality, in which he stated:
‘I have no direct or indirect links with any of the Tenderers, whether individuals or members of a consortium, who have replied to the Tender Dossier, nor with any of the sub-contractors proposed. I confirm that, should I discover during the course of evaluation that such a link exists, I will declare this immediately and resign from the Evaluation Committee. I understand that if such a link is known to me and I have neglected to declare it, the European Commission may decide to cancel the Tendering in question and I may be exposed to liabilities.’
86 Finally, the questionable nature of the foregoing matters is reinforced by the fact that, once Mr A had begun to examine GFA’s tender, he could not claim to be unaware that he was in a situation which was incompatible with his undertaking to be impartial. The tender made it clear that Stoas was one of the members of the GFA consortium. Moreover, during the evaluation interview in which Mr A took part, GFA was represented by, inter alia, the director of the division responsible for the Stoas Group’s international activities, Mr B. Although he was thus face to face with a person with a highly responsible position in the group which was employing him, Mr A, in breach of the terms of his declaration of impartiality set out above, failed to disclose his links with the group and to resign from the evaluation committee.
87 In the third place, particular importance must be attached to the fact that the seriousness of the situation gave reasonable grounds for suspecting that there might be collusion between Mr A and GFA.
88 First, it is reasonable to be in doubt as to the lawfulness of GFA’s conduct. As was stated above, GFA was represented during the evaluation interview by the director of the division responsible for the Stoas Group’s international activities, to which Mr A was answerable. According to GFA’s tender, the division for which Mr B was responsible consisted of just 25 people and the Commission could therefore reasonably assume that Mr B knew Mr A. Those facts should have prompted the Commission to ask itself why Mr B did not disclose the links which he had with one of the members of the evaluation committee.
89 Second, Mr A was appointed by the Commission as an external expert at the beginning of September 1999, at a time when GFA had not yet submitted its tender. Although Mr A had not taken part in drawing up the terms of reference, it was conceivable that during the two months between his appointment as external evaluator and the date of submission of tenders he had been in contact with representatives of the GFA consortium. On that point, the Commission acknowledged at the hearing that if such contacts had taken place, it would then have been obliged to exclude GFA from the procedure for the award of the tender at issue. The Commission did not, however, attempt to question Mr A on this point.
90 It follows from the foregoing that the Commission, in failing to investigate the relations between Mr A and the GFA consortium, made a manifest error of assessment. In infringing the principle of sound administration in that way, the Commission also violated the principle of equal treatment as between tenderers, which requires it to examine each tender impartially and objectively in the light of the requirements and general principles governing the tendering procedure, in order to ensure that all the tenderers are afforded the same opportunities.
91 The principle of equal treatment prohibits comparable situations from being treated differently and different situations from being treated alike, unless such treatment is objectively justified. In this instance, there were serious doubts as to the lawfulness of GFA’s tender. As long as those doubts subsisted, the consortium’s situation was different from that of all the other tenderers. By failing to open an inquiry aimed at putting an end to that situation, the Commission treated GFA in the same way as all the other tenderers, even though such treatment was not objectively justified. In infringing the principle of equal treatment in that way, the Commission violated a rule of law whose purpose is to confer rights on individuals.
92 However, since it has been established that the Commission failed to act with due diligence to take the steps needed to continue with the tendering procedure, the legality of the decision not to exclude GFA from the remainder of the procedure cannot be assessed. Whether the decision is lawful is directly dependent on the result of the inquiry which the Commission should have undertaken in order to satisfy itself that there was no collusion. Since the factual aspects of the case-file do not support a finding of such collusion, the Court must reject the complaints by which the applicants seek to show that the Commission should have excluded GFA from the tendering procedure.
93 As regards whether the illegality found is such as to cause the Community to incur liability, it is necessary to bear in mind that the decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion (see Brasserie du Pêcheur and Factortame, cited above, paragraph 55, and Bergaderm and Goupil v Commission, cited above, paragraph 43). The Court therefore holds that, on account of the abovementioned circumstances of the conflict of interests and of the risk of fraud which it entails, the Commission’s omission is of a manifest and serious nature and is thus such as to cause the Community to incur liability.“
-
Case T‑403/12 Intrasoft
Region: EU - General Court
Commission wrongly excluded a tenderer on conflicts of interest grounds where it had worked on the preparation of tender documents for an earlier tender, which were subsequently re-used for a new but separate tender
Concerns a decision o the European Commission and Article 94 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (see, now, Regulation (EU, Euratom) 2024/2509) and the Practical Guide to Contract Procedures for EU External Actions drawn up by the Commission services for the detailed implementation of financial aid to third countries
“69 Article 94 of the Financial Regulation contains the following provisions:
‘Contracts may not be awarded to candidates or tenderers who, during the procurement procedure:
(a) are subject to a conflict of interest …’
…
72 At paragraph 2.3.6 of the Practical Guide, referred to in the letter of 10 August 2012, the concept of conflict of interests is explained as follows:
‘Conflict of interest: Conflict of interest occurs when the impartial and objective exercise of the functions of the Contracting Authority, or respect for the principles of competition, non-discrimination or equality of treatment of candidates/tenderers/applicants/contractors with regards to the award procedure or contract, is compromised for reasons involving family, emotional life, political or national affinity, economic interest or any other shared interest with the beneficiary of EU funded programmes. A conflict of interest may therefore arise where, for instance, an individual participating in the procedure (Evaluation Committee, Contracting Authority, etc.) may grant itself or others unjustified direct or indirect advantages by influencing the outcome of such procedures; or where an expert/company [has] the opportunity to obtain privileged information leading to unfair competition in subsequent or related procedures.
For instance, any firm or expert participating in the preparation of a project (for example, drafting of the Terms of Reference) must be, as a rule, excluded from participating in tenders based on this preparatory work, unless [it] can prove to the Contracting Authority that the involvement in previous stages of the project does not constitute unfair competition.
Candidates/tenderers/applicants in a position of conflict of interests in relation to a contract award/grant award procedure must be excluded from the concerned procedure. The reasons for the exclusion have to be analysed on a case by case basis. Pursuant to constant case-law by the Court of Justice of the European Union, the exclusion should be based on an actual risk of conflict based on the specific circumstances of the case in question. An automatic exclusion deprives the candidate/tenderer/applicant of the right to present supporting evidence which might remove all suspicion of a conflict of interest.
…’
73 In the present case, it is necessary to examine whether the contracting authority could consider that a risk of conflict of interests existed in relation to the applicant, with regard to Article 94(a) of the Financial Regulation, as interpreted by the case-law, on the basis of the information at its disposal at the time the decision, contained in the letter of 10 August 2012, was taken.
74 In that regard, it should be recalled that Article 94 of the Financial Regulation permits exclusion of a tenderer from a procurement procedure only if the situation of conflict of interest to which it refers is real and not hypothetical. That does not mean that a risk of conflict of interest is not sufficient to exclude a tender. In principle, it is only when the contract is performed that a conflict of interest can become real. Before conclusion of the contract, a conflict of interest can be only potential and Article 94 of the Financial Regulation therefore implies an assessment in terms of risk. That risk must actually be found to exist, following a specific assessment of the tender and the tenderer’s situation, for that tenderer to be excluded from the procedure. The mere possibility of a conflict of interest cannot suffice for that purpose. (judgment in Deloitte Business Advisory v Commission, cited in paragraph 62 above, EU:T:2007:107, paragraph 67).
75 The concept of a conflict of interests is objective in nature and, in order to establish it, it is appropriate to disregard the intentions of those concerned, in particular whether they acted in good faith (see judgment of 20 March 2013 in Nexans France v Entreprise commune Fusion for Energy, T‑415/10, ECR, EU:T:2013:141, paragraph 115 and the case-law cited).
76 The awarding authorities are under no absolute obligation to exclude systematically tenderers in a situation of a conflict of interests, such exclusion not being justified in cases in which it is possible to show that that situation had no impact on their conduct in the context of the tender procedure and that it entails no actual risk of practices liable to distort competition between tenderers. On the other hand, the exclusion of a tenderer where there is a conflict of interests is essential where there is no more appropriate remedy to avoid any breach of the principles of equal treatment of tenderers and transparency (judgment in Nexans France v Entreprise commune Fusion for Energy, cited in paragraph 75 above, EU:T:2013:141, paragraphs 116 and 117).
77 Thus, according to settled case-law, the contracting authority is required to ensure at each stage of a tendering procedure equal treatment and, thereby, equality of opportunity for all the tenderers (see judgment of 12 July 2007 in Evropaïki Dynamiki v Commission, T‑250/05, EU:T:2007:225, paragraph 45 and the case-law cited).
78 More specifically, the principle of equal treatment requires, according to the case-law, all tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions. The principle of transparency, which is its corollary, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up clearly, precisely and unequivocally in the notice or contract documents (judgment of 9 September 2009 in Brink’s Security Luxembourg v Commission, T‑437/05, ECR, EU:T:2009:318, paragraphs 114 and 115). The principle of transparency therefore implies that all technical information relevant for the purpose of a sound understanding of the contract notice or the tendering specifications must be made available as soon as possible to all the undertakings taking part in a public procurement procedure in order, first, to enable all reasonably well-informed and normally diligent tenderers to understand their precise scope and to interpret them in the same manner and, secondly, to enable the contracting authority actually to verify whether the tenderers’ bids meet the criteria of the contract in question (see judgment of 29 January 2014 in European Dynamics Belgium and others v EMA, T‑158/12, EU:T:2014:36, paragraph 60 and the case-law cited).
79 It is apparent from the case-law, cited above at paragraphs 74 to 78, that the reasoning in terms of risk of conflict of interests requires a concrete assessment, first, of the tender and, second, of the situation of the tenderer concerned, and that the exclusion of that tenderer is a remedy designed to ensure respect for the principles of transparency and equality of opportunity for tenderers.
80 In order to determine whether, in the present case, there has been an infringement of Article 94 of the Financial Regulation it is, therefore, necessary to examine, in the context of an objective analysis without taking into account the applicant’s intentions, whether the risk of a conflict of interests stems from the applicant’s situation and from a concrete assessment of its tender.
81 In the first place, it should be noted that, according to the Commission, the exclusion of the applicant because of a conflict of interests has the purpose of ensuring observance of the principle of equal treatment of tenderers. It argues that the applicant had access, before the others, to certain documents used as the basis for some of the activities connected with the call for tenders at issue, on the ground that the applicant was part of the consortium which drafted the documents in question for another call for tenders. It is apparent from the letter of 10 August 2012 that that access would have made available to the applicant ‘privileged information’ within the meaning of paragraph 2.3.6 of the Practical Guide. The Commission therefore takes the view, in accordance with what appears in the letter in question, that that access, before the other tenderers, would have given the applicant a competitive advantage in relation to those tenderers.
82 However, it cannot be accepted that the risk of a conflict of interests can be based on the mere fact that the applicant had access, before the other tenderers, to the documents specific to another call for tenders because it belonged to the consortium which prepared those documents which, subsequently, were retained to be used as a reference for the activities associated with the call for tenders at issue in the present case.
83 The Commission’s argument that the applicant, as part of the consortium which prepared the documents in question, would have been able to influence the drafting so as to give it a competitive advantage in the call for tenders at issue in the present case cannot succeed. In that respect, it is clear from the case-law referred to at paragraphs 74 and 75 above, that the conflict of interests must be of an objective nature, requiring the intentions of the interested party to be disregarded and that the mere possibility of a conflict of interests cannot suffice, for that risk must actually be found to exist in the case in point. Consequently, the risk of a conflict of interests cannot be based on the simple presumption that at the time of the drafting of the documents in question, in the context of another call for tenders, the applicant was aware of the contracting authority’s intention to publish a new invitation to tender and of its intention to select the documents drafted by the consortium of which it was part as the basis for some of the activities concerned in the public contract referred to in the new call for tenders.
84 Within the meaning of the case-law cited at paragraph 66 above and that of paragraph 2.3.6 of the Practical Guide, the risk of a conflict of interests exists for the person responsible for the preparatory work for a public contract who participates in that same contract. In this respect it should be noted that, when the Court of Justice used the expression ‘preparatory work’ at paragraph 29 of the judgment in Fabricom, cited in paragraph 63 above (EU:C:2005:127), it was referring to work carried out in the context of one and the same call for tenders.
85 Therefore, the Commission was not entitled to treat the preparation of documents drafted in the course of another call for tenders in the same way as preparatory works under the tendering procedure at issue, within the meaning of the case-law mentioned at paragraph 63 above, unless to show objectively and specifically, first, that those documents had been prepared in the light of the tendering procedure at issue and, secondly, that they had given the applicant a real advantage. If this is not demonstrated, the documents prepared in the course of another tendering procedure, and chosen subsequently by the contracting authority as a reference for part of the activities in a different tendering procedure, are not considered ‘preparatory works’ within the meaning of the case-law previously cited, nor within the meaning of paragraph 2.3.6 of the Practical Guide, which identifies, inter alia, as preparatory work that relating to the ‘preparation of the project’ such as the drafting of the tendering specifications.
86 In the present case it must be stated that the applicant’s exclusion from the award of the contract was based on the mere fact that it was part of a consortium which drafted the documents under a previous tendering procedure, whereas it has not been argued that the other tenderers did not have access to those same documents in sufficient time. Furthermore, the preparation of those documents did not involve the applicant’s participation in the preparation of the tendering specifications in the call for tenders at issue. Therefore, it has not been established that the applicant was in possession of more information than the other tenderers, which would have amounted to a breach of the principles of equal treatment and of transparency.
87 It follows that the documents at issue do not constitute ‘privileged information’ within the meaning of paragraph 2.3.6 of the Practical Guide. The exclusion of the applicant, contrary to what is claimed by the Commission, is not therefore covered by that paragraph in the Practical Guide, and is thus not justified by an infringement of the principles of equal treatment and transparency.
88 Moreover, to classify the documents prepared in the context of another tendering procedure as ‘preparatory work’, on the basis that they have been retained by the contracting authority as a reference for the activities connected to a subsequent tendering procedure, would lead, as the applicant rightly maintains, to it being automatically considered that the experience acquired through participation in an earlier call for tenders is liable to distort competition.
89 In the second place, it does not appear that the decision contained in the letter of 10 August 2012 was taken following a specific assessment of the applicant’s tender. That letter states only, without further details, that the risk of conflict of interests attributed to the applicant, as referred to in paragraph 2.3.6 of the Practical Guide, could not properly be established other than after an examination of the candidatures of the tenderers case by case.
90 In fact the reference to a ‘case by case’ examination as it appears in the letter of 10 August 2012 repeats the wording of paragraph 2.3.6 of the Practical Guide, which is based on the case-law referred to in paragraph 74 above. However, it must be stated that such a reference is not supported by any evidence showing that an actual examination took place.
91 In that regard it should be observed that for the first time in the defence, and without it being noted in the letter of 10 August 2012, the Commission put forward the premise that the applicant, owing to its alleged ‘privileged access’ to certain documents chosen as a basis for a significant part of the activities covered by the ongoing contract, benefited from a competitive advantage in the choice of experts qualified to carry out those activities.
92 However, first, the Commission provides no evidence making it possible to ascertain whether it followed from the formulation of the applicant’s bid that the applicant had more information than the other tenderers, given that, as is set out at paragraph 86 above, it is not disputed that the documents in question were drafted in the context of another tendering procedure, did not involve the drafting of the tendering specifications for the call for tenders at issue, and were made available to all the tenderers in the present tendering procedure.
93 Secondly, in relation to the Commission’s argument concerning the choice of qualified experts, it should be noted that there is no evidence in the file that could establish a connection between the documents concerned and the choice made by the applicant, nor a fortiori that that choice would have had an effect on the chances of success of the applicant’s bid.
94 It follows from all the foregoing observations that the contracting authority had no valid grounds for considering that a risk of conflict of interests, in relation to the applicant, could be established following an actual assessment of its bid. On the other hand, it must be held that the risk of a conflict of interests has not been objectively established and the rejection of the bid of the consortium of which the applicant was part was not justified and contrary to the provisions of Article 94 of the Financial Regulation.
95 Consequently, without it being necessary to examine the first plea in law nor the first complaint in the second plea in law raised by the applicant, the second plea in law must be upheld and the decision contained in the letter of 10 August 2012 annulled, in that it established that the contract could not be awarded to the consortium of which the applicant was part. On the other hand, as follows from paragraph 59 above, the application for the annulment of the alleged implicit decision to reject the applicant’s complaint is dismissed as inadmissible.”
-
Case T-4/13 Communicaid
Region: EU - General Court
No conflict of interest established where person, who had been on evaluation panel for earlier similar tender, worked for the winning tenderer
“57 The applicant also argues that the successful tenderer enjoyed an unfair advantage because of the former seconded national expert’s participation in a previous call for tenders as a member of the evaluation committee.
58 In that respect, it must be pointed out that, according to the Commission, the applicant has not proved that the former seconded national expert participated in the drafting of the successful tenders for Lots 1 to 9. In order to prove that he did, the applicant has produced statements prepared by three of its employees, describing conversations they had with the former seconded national expert at the dinner on 13 November 2012 referred to in paragraph 56 above. However, it must be noted that those statements do not show conclusively that the former seconded national expert participated in the drafting of the successful tenders for Lots 1 to 9, since the impressions of the applicant’s employees as to whether that was the case have been expressly contradicted by the person concerned himself. In any event, even if those statements did prove such participation by the former seconded national expert, it must be noted that their probative value is weak since they were made by the applicant’s employees, who have a particular interest in the contract being awarded to the applicant.
59 In the present case, even supposing that the former seconded national expert did participate in the drafting of the successful tenders, it must be pointed out that the applicant, by the evidence which it has submitted, has proved neither the participation of the former seconded national expert in the preparation of the call for tenders at issue, nor the unfair advantage that the successful tenderer allegedly enjoyed because its new employee was a member of a tender evaluation committee in a previous, similar procurement procedure. Furthermore, as the Commission rightly points out, the applicant has provided language training services to the EU institutions since 2008 and collaborated with the Commission in the context of the contract previous to the call for tenders at issue, with the result that it had information on the needs and requirements of the European institutions, notwithstanding the fact that the contract previous to the call for tenders at issue, contrary to the present call for tenders, did not include blended learning.
60 It follows from all the foregoing that the applicant has not proved that the fact that one of the successful tenderer’s employees worked at the Commission as a seconded national expert gave it an unfair advantage in the procurement procedure at issue of such a kind as to infringe the principles of non-discrimination and of equal treatment. Nor, moreover, has the applicant proved the infringement of the principle of transparency.”
-
Case T-160/03 AFCon
-
Ireland
-
Glenman Corporation Ltd v Galway City Council [2023] IEHC 336 (Twomey J)
Region: Ireland
Tenderer's court challenge to its exclusion for poor prior performance disallowed as brought out of time
The contracting authority previously terminated a house building contract, which was being performed by the applicant, Glenman, on the basis of delays. The contracting authority ran a new tender for completion of the works. Glenman tendered but was excluded on the basis of the discretionary exclusion ground in Regulation 57(8)(g) of SI 284 of 2016 – “where the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity or a prior concession contract, which led to early termination of that prior contract, damages or other comparable sanctions.” (the same language as Article 57(4)(g) of Directive 2014/24). Glenman had disclosed the early termination in its application for the new contract and also answered “No” to the question whether it had taken measures to demonstrate its reliability (“self-cleaning”). However, Glenman contended that the termination of the earlier contract was unjustified. While a conciliator had upheld the termination decision in a Recommendation, Glenman had filed a Notice of Dissatisfaction with that Recommendation.
The Court did not deal with the substantive issues as Glenman’s action had been brought outside the 30-day time limit for issuing High Court proceedings and the Court held there was no good reason to extend that deadline. The proceedings were, therefore, dismissed.
-
Glenman Corporation Ltd v Galway City Council [2023] IEHC 336 (Twomey J)
Introduction
Both the EU and UK regimes distinguish between mandatory and discretionary bases for the exclusion of tenderers from public procurement competitions.
The case law concerning exclusionary grounds is largely focused on the discretionary grounds, and the question of what latitude Member States have to go beyond what is provided for in the Directives (some principles from the EU case law are set out below). There is little case law on mandatory exclusion grounds.
The legislative provisions are obviously key. In the EU, it is important to consult the implementing rules or regulations of the Member State in question, as these can be slightly different to the Directives. For example, in relation to the mandatory exclusion grounds, the Irish Regulations provide that “corruption” includes corruption within the meaning of “the law of the State, where the contracting authority or the economic operator concerned is established in the State” (Regulation 57(1)(b)(iii) of SI 284/2016).
EU Scheme
Exclusion regime in Directive 2014/24
- Mandatory exclusion for very serious violations, where there has been a conviction for participation in a criminal organiation, corruption, fraud, terrorist offences, money laundering, child labour and human trafficking (Art. 57(1))
- Mandatory exclusion where contracting authority is aware of breach of obligations re paying taxes or social security (Art. 57(2))
- Derogations may be provided by Member States for overriding public interest, health or environmental reasons (Art. 57(3))
- Discretionary exclusion for various reasons (Art. 57(4)) including grave professional misconduct (c), anti-competitive agreements (d), conflicts of interest (e), distortions of competition from prior involvement (e) and poor prior performance (g)
- Contractors can show self-cleaning (Art. 57(6)
- Member States to decide on implementing measures with maximum exclusions of 5 years (mandatory grounds) and 3 years (discretionary grounds)
Principles in EU case law
- It is for the contracting authority itself to decide if a tenderer should be excluded (Case C-41/18 Meca [34]; Case C-267/18 Delta [25])
- A contracting authority must make its own assessment as to whether termination under an earlier contract justifies the exclusion of a tenderer (Case C-267/18 Delta [29])
- In deciding whether to exclude on discretionary grounds, the contracting authority “must pay particular attention to the principle of proportionality” (Case C-395/18 Tim; Recital 101 of Directive 2014/24)
- National legislation cannot exclude the possibility of exclusion for poor prior performance simply because a decision terminating the contract is under challenge (Case C-41/18 Meca [38])
- A tenderer could be excluded based on deficiencies of a sub-contractor, but such exclusion cannot be automatic (Case C-395/18 Tim [40], [51])
- The exclusion ground for anti-competitive agreements/conduct cannot be limited to conduct in the specific tender procedure (Case C-66/22 Infraestruturas de Portugal SA)
- Unsuccessful tenderers can invoke the Article 57(4) discretionary exclusion grounds (Case C-66/22 Infraestruturas de Portugal SA [62])
- The Directive provides an exhaustive list of exclusion grounds relating to professional quality (Case C‑465/11 Forposta [38])
- The conflict of interest (Article 57(4)(d) and (e) of Directive 2014/24) and distortion of competition (Article 57(4)(f) of Directive 2014/24) grounds of exclusion, which are both discretionary, relate to the specific procurement in question, rather than being general grounds of exclusion (see. e.g., Case C‑416/21 Landkreis Aichach-Friedberg [56]: “a situation which, in connection with the procurement procedure in question, qualifies as a conflict of interest or a distortion of competition, which are covered, respectively, in points (e) and (f) of the first subparagraph of Article 57(4) of that directive”)
UK Scheme
The UK legislative regime in the Procurement Act 2023 involves an expansion of exclusion grounds and provides for a centralised debarment list. Key provisions here include:
- Schedule 6 (setting out the mandatory exclusion grounds)
- Schedule 7 (discretionary exclusion grounds)
- Sections 61 to 66 (concerning debarment)
- There is a specific provision for excluding suppliers by reference to the conduct of their sub-contractors (section 28)
- Suppliers can also be subject to exclusion based on an “associated person” being an excluded or excludable supplier, with the “associated person” meaning “a person that the supplier is relying on in order to satisfy the conditions of participation” (section 26).
Grave Professional Misconduct
- Article 57(4)(c) of Directive 2014/24 provides for “grave professional misconduct” as a discretionary ground of exclusion
- If the contracting authority can “demonstrate by appropriate means” that the economic operators is guilty of grave professional misconduct, “which renders its integrity questionable“, then it can exclude it (Article 57(4)(c) of Directive 2014/24)
- According to Recital 101 of Directive 2014/24, “grave professional misconduct can render an economic operator’s integrity questionable and thus render the economic operator unsuitable to receive the award of a public contract”
- The concept of ‘professional misconduct’ covers “all wrongful conduct which has an impact on the professional credibility of the operator and not only the violations of ethical standards in the strict sense of the profession to which that operator belongs,” (Case C-465/11 Forposta [27])
- ‘Grave misconduct’ normally refers to “wrongful intent or negligence of a certain gravity” (Case C-465/11 Forposta [30])
- Defective performance of a public contract does not automatically amount to grave misconduct – “incorrect, imprecise or defective performance of a contract or a part thereof could potentially demonstrate the limited professional competence of the economic operator at issue, but does not automatically amount to grave misconduct” (Case C-465/11 Forposta [30])
- A “specific and individual assessment” must be carried out before grave misconduct is established (Case C-465/11 Forposta [31])
Conflicts of Interest
- A contracting authority is required to determine whether any conflicts of interests exist (Case C-538/13 eViglio [43])
- The prior involvement of a tenderer in the preparation, for the contracting authority, of a previous similar tender, does not provide a sufficient basis to exclude the tenderer on conflict of interest grounds (Case T-403/12 Intrasoft [83])
- The concept of a conflict of interest is objective in nature (Case T-403/12 Intrasoft [75])
- A conflict does not justify exclusion where it can be shown that it “had no impact on [the contracting authority’s] conduct in the context of the tender procedure” and “entails no actual risk of practices liable to distort competition between tenderers” (Case T-403/12 Intrasoft [76])
- The concept of ‘bias‘ is a matter for national law (Case C-538/13 eViglio [46])
- The fact that an evaluator is an ex-employee of a tenderer does not give rise to apparent bias in English law (Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2023] EWHC 2768 (TCC) [756])
- An evaluator’s continued membership of a tenderer’s pension scheme does not amount to apparent bias in English law (Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2023] EWHC 2768 (TCC) [755]-[760])
- Sufficient training on confidentiality and conflicts and oversight procedures may ameliorate apparent bias concerns (Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2023] EWHC 2768 (TCC) [811])
Secondary Sources
- Bogdanowicz and Roliński (eds), Exclusion grounds – the practice of application in the EU and EFTA states (2019) – discusses how Article 57 of Directive 2014/24 has been transposed in and is applied in various EU and EFTA States
- Saammalma, Conflicts of interests and tenderers’ prior involvement in the preparation of a procurement (2024) 3 Procurement Journal 189
-
Debarment Lists
A number of jurisdictions operate debarment lists and registries of suppliers who may have violates laws etc.
- UK: Section 62 of the UK Procurement Act 2023 provides for a centralised Debarment List
- Germany: Competition Register (Wettbewerbsregister) maintained by the German Competition Authority (BundesKartellAmt). Contracting authorities must consult the register for procurements valued in excess of €30,000
- Italy: Register maintained by the Italian Anti-Corruption Authority, Autorità Nazionale Anticorruzione (ANAC)
-
Environmental Laws
[To be Added]