Transforming Public Procurement - The Procurement Act - Issue 6
Supplier Selection
The new regulations on Conditions of Participation and Supplier Exclusion aim to provide a simplified and more robust set of rules governing the assessment of suppliers looking to participate in public-sector procurement. The changes include:
· A more efficient process for submitting and receiving tenders or requests to participate, for both you and your suppliers, using the Register of Suppliers.
· Extended grounds for supplier exclusion, including a new ground that takes account of past performance.
· Increased flexibility in how you design conditions of participation
· The ability to consider a broader range of evidence when assessing exclusions and conditions of participation.
Conditions of Participation
Under the Procurement Act 2023, a condition of participation is a condition to ensure that suppliers have the legal and financial capacity or technical ability to perform the contract. The supplier must demonstrate they are capable of satisfying these conditions in order to be awarded a public contract. They are similar to selection criteria requirements, which existed under the Public Contracts Regulations 2015.
Conditions of participation are not mandatory for above-threshold procurements. However, it is expected that most procurements will need to confirm certain aspects of a supplier’s suitability to deliver a contract.
Information about suppliers in an above threshold procurement process will no longer be captured using the Standard Selection Questionnaire (SQ) used under PCR 2015. Some of this information will be captured using the Supplier Information System on the central digital platform, and the remainder will be captured separately as part of each contracting authority’s own electronic tendering system. Together, this information will be used to assess suppliers against exclusion grounds and, where applicable, conditions of participation.
Contracting authorities must not set or assess a supplier’s suitability to perform the contract (i.e. legal and financial capacity, or technical ability) for below-threshold procurements as a way of reducing the number of bidders they seek to invite to tender (unless for woks contracts over a certain value).
Exclusion
Extending exclusion grounds not only covers suppliers, but also:
· “Associated Suppliers”: suppliers who are being relied upon by a supplier - when bidding for a contract - to meet the conditions of a tender.
· “Connected Persons”: certain individuals and entities who are connected with a supplier (such as a director, subsidiary company or person with significant control).
There are also changes to the terminology between the PCR2015 and the Procurement Act:
· If a mandatory exclusion ground applies to a supplier they are classified as “Excluded”.
· If a discretionary exclusion ground applies to a supplier they are classified as “Excludable”. A key change under the Procurement Act is the introduction of a supplier’s poor contract performance as a discretionary exclusion ground.
The debarment regime
The Act introduces a new debarment regime, where excluded suppliers will be added to a central, publicly available debarment list. Addition of a supplier to this list must be preceded by an investigation (by the Cabinet Office) in the first instance and has the potential to automatically exclude that supplier from all future procurements for up to five years.
The key aim is to take tougher action on underperforming suppliers, ensuring consistency across the public sector and reducing the administrative burden on contracting authorities regarding due diligence.
It is expected these provisions will come in to force upon the introduction of the Act in October 2024, however some may only come on line at a later date, as the new central digital platform is developed.
What is the easiest way to compliant procurement?
By using the frameworks managed by Dukefield Procurement, you can ensure any procurement you wish to undertake is compliant, as we will navigate the new processes and procedures for you!
You can find out more about our frameworks: on our website
How Dukefield Procurement can help:
Dukefield Procurement’s qualified procurement professionals are on hand to provide free advice, and to support you with any questions you may have as we progress through the new legislation.
We will be publishing a series of easy to understand general guidance notes, backed up with webinars, presentations and learning resources. We can also offer tailor made support services for your institution to assist with both the new Procurement Act and wider procurement concerns.
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