Key questions and answers
Please note that although the information in our our 5 in 25 webinars and FAQs was correct at the date of recording, this is an area of law subject to development and change.
Do check if in doubt as to the latest position - you can email [email protected].
Please note that the responses provided represent the general views of the public procurement team at Mills & Reeve, however they should not be relied on or treated as a substitute for specific advice relevant to a particular scenario/matter. If you require specific legal advice, our procurement team would be happy to discuss this further.
FAQs
The Act takes the same approach to defining below threshold works contracts as currently in the PCR 2015: ie, for these purposes only, the works threshold is taken to be equal to the appropriate supplies/services threshold for that authority. As with the standard CCS SQ, we await guidance to confirm how PAS91 and CAS will operate under the Act.
This is an interesting point. On the face of it, the drafting could be read to require a choice between one or the other, although this would be a departure from the current position under the PCR 2015 where economic/financial standing AND technical/professional ability may be assessed. We will raise a query with the Transforming Public Procurement team and there may be potential for this to be addressed in guidance. Section 22 does state that conditions of participation may only be used if doing so is proportionate to do so having regard to the nature and complexity of the contract; whether to use both will need to be proportionate accordingly.
Yes, this should be possible subject to the general requirement that any condition of participation must be proportionate having regard to the nature and complexity of the contract. A requirement to have delivered a contract like the one being procured, in terms of value/scope, seems likely to be proportionate. Any condition of participation will need to respect the rules on specifications and equivalents (for example, it would not be lawful to require a supplier to have previously supplied a particular brand of product where alternative products are available that meet the requirements).
This is a very interesting question. At present there is nothing in the Act that suggests that the subject matter of the previously poorly performed contract must be related to that which is currently being procured. Schedule 7(12) simply refers to a “relevant contract”, which in turn is defined as one to which a contracting authority or other public body (whether in the UK or outside of it) is a party. There is no requirement in the definition of “relevant contract” for the subject matter to be related.
That said, given that suppliers will tend to work in certain sectors and offer particular types of goods/services/works, there is very likely to be a link between the subject matters of the two contracts in question, given that the supplier is the same.
Further guidance may provide more detail here in due course. There is no stated process for challenging an authority issuing a contract performance notice – beyond that which is generally available to suppliers under the Act for breach of the Act. If a contract performance notice is inaccurate, then potentially a supplier could bring a claim under the Act against the publishing authority for breach of the duty to publish a compliant contract performance notice and more generally for breach of section 12 duties around transparency, proportionality, and equal treatment. The usual 30-day limitation period for a procurement claim would apply and would be likely to start to run from the publication date of the Contract Performance Notice. Such a claim might well be brought alongside a general contract law claim disputing termination for the breach in question.
A supplier who was excluded from a procurement based on a defective contract performance notice would presumably notify the contracting authority in the current procurement of the defect. This might well give rise to a duty on that contracting authority to uphold its section 12 duties to act transparently, proportionately, and afford equal treatment, by looking into the detail of the contract performance notice and the supplier’s complaint around it. Of course, a supplier must always be given an opportunity to make representations and demonstrate self-cleaning prior to any exclusion. However, as set out above, where a supplier did not make a timely challenge to the publication of the Contract Performance Notice within 30 days of its publication, it will almost certainly have lost the right to do so now, due to the limitation period. It is possible that this is an area where guidance may be issued from the Procurement Oversight Unit.
This remains to be seen, but it seems likely that the need to refer all exclusions on to the relevant debarment authority for consideration for investigation may make authorities more cautious about exclusions and reserve these for the most clear-cut cases.
This will depend on the reason why the supplier is not added to the debarment list at the end of the investigation. It is possible that the debarment authority may agree with the exclusion but still decide not to exclude. More information is needed on the remit and powers of the relevant debarment authority to answer this question. It seems highly unlikely that it will have the power to “overturn” an exclusion decision made by a contracting authority as this is the prerogative of court via a formal claim.
Yes, our understanding is that the debarment list will be a publicly available document. It is not yet clear how much direct involvement ministers will have with individual debarment decisions, but it certainly seems likely where the exclusion is for a high profile offence that is politically relevant or sensitive.