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Procurement Act 2023

Type Public General Act

Publication 2023-10-26

Last updated 2026-04-07

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(7) A supplier may not bring proceedings under this Part on the grounds that one or more of the following decisions of a Minister of the Crown was unlawful—

(a) a decision to enter a supplier’s name on the debarment list;

(b) a decision relating to the information included in an entry on the debarment list;

(see section 65 (debarment decisions: appeals)).

(8) This Part applies irrespective of section 2(2) and 21 of the Crown Proceedings Act 1947.

(9) In this Part—

“claimant”—in relation to a claim in Northern Ireland, means plaintiff;in relation to a claim in Scotland, means pursuer;

“the court” means—in England and Wales, the High Court,in Northern Ireland, the High Court, andin Scotland, the Court of Session.

Automatic suspension of the entry into or modification of contracts

101

(1) A contracting authority may not enter into a public contract, or modify a public contract or a convertible contract, if during any applicable standstill period—

(a) proceedings under this Part are commenced in relation to the contract, and

(b) the contracting authority is notified of that fact.

(2) The court may lift or modify the restriction in subsection (1) by order under section 102.

(3) The restriction in subsection (1) does not apply if—

(a) the proceedings at first instance have been determined, discontinued or otherwise disposed of, and

(b) the court has not made an order to extend the restriction.

(4) In this section “convertible contract” has the meaning given in section 74.

(5) See sections 51 and 76 for provision about standstill periods.

Interim remedies

102

(1) In proceedings under this Part, the court may make one or more of the following orders—

(a) an order lifting or modifying the restriction in section 101(1);

(b) an order extending the restriction or imposing a similar restriction;

(c) an order suspending the effect of any decision made or action taken by the contracting authority in carrying out the procurement;

(d) an order suspending the procurement or any part of it;

(e) an order suspending the entry into or performance of a contract;

(f) an order suspending the making of a modification of a contract or performance of a contract as modified.

(2) In considering whether to make an order under subsection (1), the court must have regard to—

(a) the public interest in, among other things—

(i) upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law;

(ii) avoiding delay in the supply of the goods, services or works provided for in the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services);

(b) the interests of suppliers, including whether damages are an adequate remedy for the claimant;

(3) An order under subsection (1) may not permit a contract to be entered into or modified before the end of any applicable standstill period (see sections 51 and 76).

(4) An order under subsection (1) may provide for undertakings or conditions.

Pre-contractual remedies

103

(1) This section applies if the court is satisfied that a decision made, or action taken, by a contracting authority breached the duty referred to in section 100(1) and—

(a) the contract in relation to which the breach occurred has not been entered into, or

(b) where the breach occurred in relation to a modification of a contract, the modification has not yet been made.

(2) The court may make one or more of the following orders—

(a) an order setting aside the decision or action;

(b) an order requiring the contracting authority to take any action;

(d) any other order that the court considers appropriate.

Post-contractual remedies

104

(1) This section applies if the court is satisfied that a decision made, or action taken, by a contracting authority breached the duty referred to in section 100(1) and—

(a) the contract in relation to which the breach occurred has already been entered into, or

(b) where the breach occurred in relation to a modification of a contract, the modification has already been made.

(2) The court—

(a) must, if a set aside condition in section 105 is met, make an order setting aside the contract or modification, and

(b) may, in any case, make an order for the award of damages.

(3) The duty in subsection (2)(a) does not apply if the court is satisfied that there is an overriding public interest in not setting aside the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services).

(4) In which case, the court may make an order reducing—

(a) the term of the contract;

(b) the goods, services or works to be supplied under the contract.

(5) In considering whether there is an overriding public interest in not setting aside a contract or modification, the court—

(a) may have regard to the financial consequences of setting aside the contract or modification only in exceptional circumstances, and

(b) must in any event disregard costs that are directly associated with—

(i) the contracting authority having to award another contract or enter into a contract to a different supplier,

(ii) a delay in the performance of the contract or the contract as modified, or

(iii) any legal obligations arising from setting aside the contract or modification.

(6) If a contract or modification is set aside, it is to be treated as without effect from the date of the order.

(7) An order setting aside a framework or modification of a framework may not operate to set aside contracts already awarded under the framework.

(8) An order setting aside or reducing the term of, or supplies under, a contract may make provision for restitution and other consequential or supplementary matters.

Post-contractual remedies: set aside conditions

105

(1) A set aside condition is met if the court is satisfied that the claimant was denied a proper opportunity to seek a remedy under section 103 (pre-contractual remedies) because—

(a) a required contract award notice was not published;

(b) the contract was entered into or modified before the end of any applicable standstill period (see sections 51 and 76);

(c) the contract was entered into or modified during a period of automatic suspension under section 101 or in breach of a court order;

(d) in the case of a contract of a kind described in section 51(3) (exceptions to mandatory standstill), the breach became apparent only on publication of a contract award notice;

(e) in the case of a modification under section 74, the breach became apparent only on publication of a contract change notice;

(f) the breach became apparent only after the contract was entered into or modified.

(2) Subsection (1)(d) does not apply if—

(a) the contract award notice provided for a standstill period, and

(b) the contract was not entered into before the end of that standstill period.

(3) Subsection (1)(e) does not apply if—

(a) the contract change notice provided for a standstill period, and

(b) the modification was not made before the end of that standstill period.

(4) References in this section to a notice not being published include references to a notice that, though published, did not provide accurate information in respect of the contract as entered into.

Time limits on claims

106

(1) A supplier must commence any specified set-aside proceedings before the earlier of—

(a) 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 circumstances giving rise to the claim;

(b) the end of the period of six months beginning with the day the contract was entered into or modified.

(2) A supplier must commence any other proceedings under this Part 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 circumstances giving rise to the claim.

(3) The court may make an order extending a time limit referred to in subsection (1)(a) or (2) if it considers there to be a good reason for doing so.

(4) An order under subsection (3) may not permit proceedings to be commenced after—

(a) in the case of specified set-aside proceedings, the end of the period referred to in subsection (1)(b), and

(b) in any case, the end of the period of 3 months beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim.

(5) In this section, “specified set-aside proceedings” means proceedings under section 104(2) to—

(a) set aside a public contract in circumstances where the contracting authority did not publish a contract details notice in respect of the contract in accordance with section 53, or

(b) set aside a modification of a contract.

Part 9 proceedings and closed material procedure

107

Part 2 of the Justice and Security Act 2013 (disclosure of sensitive material) applies in relation to proceedings under this Part 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);

(d) section 11(3);

(e) section 12(2)(a) and (b).

PART 10 — Procurement oversight

Recommendations following procurement investigations

108

(1) An appropriate authority may investigate a relevant contracting authority’s compliance with requirements of this Act.

(2) An appropriate authority conducting a procurement investigation may by notice require a relevant contracting authority—

(a) to provide such relevant documents as the appropriate authority may reasonably require for the purposes of the procurement investigation, in the form or manner specified in the notice;

(b) to give such other assistance in connection with the procurement investigation as is reasonable in the circumstances and is specified in the notice.

(3) The relevant contracting authority must comply with a notice under subsection (2) before the end of—

(a) the period specified in the notice (which must be at least 30 days beginning with the day on which the notice is given), or

(b) such longer period as the appropriate authority may agree to.

(4) The appropriate authority may publish the results of a procurement investigation, including any section 109 recommendation issued.

(5) In this section—

“procurement investigation” means an investigation under subsection (1);

“relevant contracting authority” means a contracting authority other than—a Minister of the Crown or a government department;the Welsh Ministers;a Northern Ireland department;the Corporate Officer of the House of Commons;the Corporate Officer of the House of Lords;the Senedd Commission;the Northern Ireland Assembly Commission;a private utility;

“relevant documents” means documents or other information that—are specified or described in a notice under subsection (2), andare in the possession or control of the relevant contracting authority to which the notice is given;

“section 109 recommendation” has the meaning given in section 109.

Recommendations following procurement investigations

109

(1) This section applies where an appropriate authority—

(a) has conducted a procurement investigation under section 108, and

(b) considers, in light of the results of that procurement investigation (whether alone or in conjunction with the results of other such investigations), that a relevant contracting authority is engaging in action giving rise, or that is likely to give rise, to a breach of any requirement of this Act.

(2) The appropriate authority may issue a recommendation (a “section 109 recommendation”) to the relevant contracting authority as to—

(a) the action the relevant contracting authority should take with a view to ensuring that it complies with the requirements of this Act specified in the recommendation;

(b) the timing of such action.

(3) A section 109 recommendation must not relate to how the relevant contracting authority should—

(a) comply with section 12 (procurement objectives);

(b) have regard to the national procurement policy statement (see section 13) or the Wales procurement policy statement (see section 14);

(d) exercise a discretion in relation to a particular procurement.

(4) In considering how to comply with the requirements of this Act, a relevant contracting authority must have regard to a section 109 recommendation issued to it.

(5) A relevant contracting authority to which a section 109 recommendation has been issued must, where the recommendation so specifies, submit a progress report to the appropriate authority at such intervals as may be specified.

(6) A “progress report” is a report setting out—

(a) what action (if any) the relevant contracting authority has taken as a result of the recommendation, or

(b) if the authority has taken no such action, a statement to that effect.

(7) Where the relevant contracting authority has taken no action as a result of the section 109 recommendation, or has taken different action to that recommended, the progress report must also include the authority’s reasons for doing so.

(8) The appropriate authority may publish a progress report or, where the relevant contracting authority fails to submit one, notice of that fact.

(9) In this section—

“action” includes acts and omissions;

“procurement investigation” and “relevant contracting authority” have the meanings given in section 108.

Guidance following procurement investigations

110

(1) Where an appropriate authority has conducted a procurement investigation under section 108, the authority may publish guidance setting out what the authority considers to be the lessons of the matters considered in the procurement investigation for compliance with the requirements of this Act by contracting authorities generally.

(2) In considering how to comply with the requirements of this Act, a contracting authority must have regard to relevant guidance published under subsection (1).

(3) In subsection (2), the reference to relevant guidance is a reference to guidance that could, in light of Part 11, be addressed to the contracting authority.

PART 11 — Appropriate authorities and cross-border procurement

Welsh Ministers: restrictions on the exercise of powers

111

(1) The Welsh Ministers may only exercise a power under this Act for the purpose of regulating—

(a) contracting authorities that are devolved Welsh authorities (within the meaning given in section 157A of the Government of Wales Act 2006),

(b) contracting authorities that—

(i) are not devolved Welsh authorities, but

(ii) for the purposes of this Act, are to be treated as devolved Welsh authorities, or

(2) A contracting authority that is a public undertaking or private utility is to be treated as a devolved Welsh authority for the purposes of this Act if—

(a) it operates wholly or mainly in relation to Wales, and

(b) its activities are wholly or mainly activities that do not relate to reserved matters.

(3) Otherwise, a contracting authority is to be treated as a devolved Welsh authority for the purposes of this Act if the authority’s functions—

(a) are exercisable wholly or mainly in relation to Wales, and

(b) are wholly or mainly functions that do not relate to reserved matters.

(4) Other than in this section and section 127 (commencement), a reference in this Act to a devolved Welsh authority includes a reference to an authority that is to be treated as a devolved Welsh authority for the purposes of this Act.

(5) Subsection (1) does not apply in relation to a power under sections 59 to 66 (debarment).

(6) In this section—

“reserved matters” has the meaning given in the Government of Wales Act 2006;

“Wales” has the meaning given in section 158 of the Government of Wales Act 2006 (when read by reference to section 157A(9) of that Act).

Northern Ireland department: restrictions on the exercise of powers

112

(1) A Northern Ireland department may only exercise a power under this Act for the purpose of regulating—

(a) contracting authorities that are transferred Northern Ireland authorities,

(b) contracting authorities that are public undertakings or private utilities that—

(i) are not transferred Northern Ireland authorities, but

(ii) for the purposes of this Act, are to be treated as transferred Northern Ireland authorities, or

(2) For the purposes of this section, an authority is a “transferred Northern Ireland authority” if its functions—

(a) are exercisable only in or as regards Northern Ireland, and

(b) are wholly or mainly functions that do not relate to reserved or excepted matters (within the meaning given by the Northern Ireland Act 1998).

(3) A contracting authority that is a public undertaking or private utility is to be treated as a transferred Northern Ireland authority for the purposes of this Act if—

(a) it operates only in or as regards Northern Ireland, and

(b) its activities are wholly or mainly activities that do not relate to reserved or excepted matters.

(4) Other than in this section, a reference in this Act to a transferred Northern Ireland authority includes a reference to an authority that is to be treated as a transferred Northern Ireland authority for the purposes of this Act.

(5) Subsection (1) does not apply in relation to a power under sections 59 to 66 (debarment).

Minister of the Crown: restrictions on the exercise of powers

113

(1) A Minister of the Crown may exercise a power under this Act for the purpose of regulating a contracting authority that is a devolved Welsh authority only in relation to procurement under—

(a) a reserved procurement arrangement, or

(b) a transferred Northern Ireland procurement arrangement.

(2) Subsection (1) does not apply in relation to a power under section 67 (electronic invoicing) or 110 (guidance following procurement investigation).

(3) A Minister of the Crown may not make regulations under section 67 or section 125, or publish guidance under section 110, for the purpose of regulating a devolved Welsh authority without the consent of the Welsh Ministers, unless the regulations relate to, or the guidance relates to, procurement under—

(a) a reserved procurement arrangement, or

(b) a transferred Northern Ireland procurement arrangement.

(4) A Minister of the Crown may not make regulations under this Act for the purpose of regulating a transferred Northern Ireland authority without the consent of a Northern Ireland department, unless the regulations relate to procurement under—

(a) a reserved procurement arrangement, or

(b) a devolved Welsh procurement arrangement.

(5) A Minister of the Crown may not publish guidance under section 110 for the purpose of regulating a Northern Ireland department without the consent of a Northern Ireland department, unless the guidance relates to procurement under—

(a) a reserved procurement arrangement, or

(b) a devolved Welsh procurement arrangement.

(6) Subsections (1) and (4) do not apply in relation to a power under—

(a) sections 59 to 66 (debarment);

(b) section 89 (treaty state suppliers);

(d) section 92 (trade disputes);

(e) section 125 (power to make consequential, etc, provision);

(f) section 127 (commencement).

General

114

(1) In this Act, a reference to a procurement under a procurement arrangement is a reference to a procurement as part of which the contract is awarded—

(a) in accordance with a framework or similar arrangement,

(b) by reference to a dynamic market or similar arrangement, or

(i) jointly by two or more authorities, or

(ii) by a centralised procurement authority or equivalent body.

(2) A procurement arrangement is a devolved Welsh procurement arrangement if—

(a) the framework was awarded by a devolved Welsh authority,

(b) the dynamic market was established by a devolved Welsh authority,

(d) a devolved Welsh authority is designated the lead authority in the tender or transparency notice.

(3) A procurement arrangement is a transferred Northern Ireland procurement arrangement if—

(a) the framework was awarded by a transferred Northern Ireland authority,

(b) the dynamic market was established by a transferred Northern Ireland authority,

(d) a transferred Northern Ireland authority is designated the lead authority in the tender or transparency notice.

(4) A procurement arrangement is a devolved Scottish procurement arrangement if—

(a) the framework or similar arrangement was awarded by a devolved Scottish authority,

(b) the dynamic market or similar arrangement was established by a devolved Scottish authority,

(d) a devolved Scottish authority was designated the lead authority in respect of the procedure or selection process.

(5) A procurement arrangement is a reserved procurement arrangement if it is not—

(a) a devolved Welsh procurement arrangement,

(b) a transferred Northern Ireland procurement arrangement, or

(6) In this section—

“equivalent body” means, in relation to a centralised procurement authority, a body carrying out functions of a kind described in section 1(4) (centralised procurement authorities);

“framework” includes a framework agreement within the meaning given in Scottish procurement legislation;

“similar arrangement” includes, in relation to a dynamic market, a dynamic purchasing or qualification system.

Powers relating to procurement arrangements

115

(1) A Minister of the Crown may by regulations make provision, including provision amending this Act, for the purpose of regulating devolved Scottish authorities carrying out procurement under—

(a) reserved procurement arrangements,

(b) devolved Welsh procurement arrangements, or

(2) A Minister of the Crown may by regulations amend this Act for the purpose of disapplying provision so far as it relates to procurement under devolved Scottish procurement arrangements.

(3) The Scottish Ministers may by regulations amend Scottish procurement legislation for the purpose of—

(a) applying it in relation to procurement carried out by contracting authorities under devolved Scottish procurement arrangements;

(b) disapplying it in relation to procurement carried out by devolved Scottish authorities under—

(i) reserved procurement arrangements,

(ii) devolved Welsh procurement arrangements, or

(iii) transferred Northern Ireland procurement arrangements.

(4) In this Act, “Scottish procurement legislation” means—

(a) the Procurement Reform (Scotland) Act 2014 (asp 12),

(b) the Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446),

(d) the Concession Contracts (Scotland) Regulations 2016 (S.S.I. 2016/65), and

(e) any legislation which modifies or replaces that legislation (including an Act of the Scottish Parliament).

PART 12 — Amendments and repeals

Disapplication of duty in section 17 of the Local Government Act 1988

116

(1) In section 17 of the Local Government Act 1988 (exclusion of non-commercial considerations), in subsection (11), after “imposed on it by” insert “the Procurement Act 2023 or”.

(2) A Minister of the Crown or the Welsh Ministers may by regulations make provision disapplying the duty under section 17(1) of the Local Government Act 1988 (“the 1988 Act”) as it relates to a relevant authority.

(3) The regulations may disapply the duty as it relates to—

(a) all relevant authorities or those that are specified;

(b) all functions that are regulated by section 17 of the 1988 Act (see subsection (4) of that section) or those that are specified;

(d) all non-commercial matters (see section 17(5) of the 1988 Act) or those that are specified.

(4) In this section—

“relevant authority” means an authority to which section 17 of the 1988 Act applies other than a devolved Scottish authority;

“specified” means specified, or of a description specified, in regulations under this section.

Single source defence contracts

117

Schedule 10 makes amendments to Part 2 of the Defence Reform Act 2014 (single source contracts).

Concurrent powers and the Government of Wales Act 2006

118

In Schedule 7B to the Government of Wales Act 2006 (general restrictions on devolved competence)—

(a) at the end of paragraph 9(8)(b)(vi), omit “or”,

(b) in paragraph 9(8)(b)(vii), at the end insert

or (viii) the Procurement Act 2023.

(d) in paragraph 11(6)(b)(xi), at the end insert

, or (xii) the Procurement Act 2023.

Repeals etc

119

(1) The enactments set out in Schedule 11 are repealed or revoked.

(2) The following regulations apply only in relation to devolved Scottish authorities—

(a) the Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446);

(b) the Utilities Contracts (Scotland) Regulations 2016 (S.S.I. 2016/49);

PART 13 — General

Intelligence activities

120

(1) A Minister of the Crown may by regulations make provision for the purpose of disapplying any provision of this Act in relation to regulated health procurement.

(2) In this section—

“regulated health procurement” means the procurement of goods or services by a relevant authority that is subject to provision made under section 12ZB of the National Health Service Act 2006 (procurement of healthcare services etc for the health service in England), whether or not that provision is in force;

“relevant authority” has the meaning given in that section.

Power to amend this Act in relation to private utilities

121

(1) An appropriate authority may by regulations amend this Act for the purpose of reducing the regulation of private utilities under this Act.

(2) The regulations may, for example, make provision—

(a) disapplying requirements under this Act in relation to private utilities;

(b) modifying requirements under this Act as they apply in relation to private utilities so as to reduce any burden, or the overall burdens, for private utilities resulting directly or indirectly from this Act.

(3) Before making regulations under this section an appropriate authority must consult—

(a) persons appearing to the authority to represent the views of private utilities, and

(b) such other persons as the authority considers appropriate.

(4) In this section “burden” includes—

(a) a financial cost;

(b) an administrative inconvenience;

Regulations

122

(1) Any power to make regulations under this Act—

(a) so far as exercisable by a Minister of the Crown or the Welsh Ministers is exercisable by statutory instrument;

(b) so far as exercisable by a Northern Ireland department, is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(2) For regulations made under this Act by the Scottish Ministers, see also section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) (Scottish statutory instruments).

(3) Regulations under this Act may—

(a) make different provision for different purposes or areas;

(b) make provision generally or only in relation to specified cases;

(d) make transitional, transitory or saving provision.

(4) A statutory instrument containing (whether alone or with other provision) regulations made by a Minister of the Crown under any of the following provisions may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament—

(a) section 6 (utilities contracts);

(b) section 7 (defence and security contracts);

(d) section 33 (reserving contracts to public service mutuals);

(e) section 52 (key performance indicators);

(f) section 53 (publication of contracts);

(g) section 69 (payment compliance notices);

(h) section 70(3)(a) (information about payments: financial thresholds);

(i) section 75 (contract change notices and publication of modifications);

(ia) section 83C (provision for inclusion in relevant outsourcing contracts);

(j) section 87 (regulated below-threshold contracts: notices);

(k) section 89 (treaty state suppliers: international agreements);

(l) section 91 (treaty state suppliers: non-discrimination in Scotland);

(m) section 92 (trade disputes);

(n) section 93 (pipeline notices);

(o) section 95 (notices, documents and information);

(p) section 97 (information relating to a procurement);

(q) section 115 (powers relating to procurement arrangements);

(r) section 116 (disapplication of section 17 of Local Government Act 1988);

(s) section 120 (disapplication of Act: NHS procurement in England);

(t) section 121 (amendment of Act in relation to private utilities);

(u) section 123 (interpretation);

(v) section 125 (power to make consequential, etc, provision), if the regulations made under it modify primary legislation;

(w) section 127(6) (exclusion of devolved Welsh authorities);

(x) paragraph 3 or 5 of Schedule 1 (threshold amounts);

(y) Schedule 2 (exempted contracts);

(z) Schedule 4 (utility activities).

(5) A statutory instrument containing regulations made by a Minister of the Crown under section 42 (direct award to protect life, etc) must be laid before Parliament after being made.

(6) Any other statutory instrument containing regulations made by a Minister of the Crown under any provision of this Act, except section 127 (commencement), is subject to annulment in pursuance of a resolution of either House of Parliament.

(7) Regulations contained in a statutory instrument laid before Parliament under subsection (5) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.

(8) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—

(a) Parliament is dissolved or prorogued, or

(b) either House of Parliament is adjourned for more than four days.

(9) If regulations cease to have effect as a result of subsection (7), that does not—

(a) affect the validity of anything previously done under the regulations, or

(b) prevent the making of new regulations.

(10) A statutory instrument containing (whether alone or with other provision) regulations made by the Welsh Ministers under any of the following provisions may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, Senedd Cymru—

(a) section 6 (utilities contracts);

(b) section 9 (light touch contracts);

(d) section 52 (key performance indicators);

(e) section 69 (payment compliance notices);

(f) section 70(3)(a) (information about payments: financial thresholds);

(g) section 75 (contract change notices and publication of modifications);

(ga) section 83C (provision for inclusion in relevant outsourcing contracts);

(h) section 87 (regulated below-threshold contracts: notices);

(i) section 89 (treaty state suppliers: international agreements);

(j) section 92 (trade disputes);

(k) section 93 (pipeline notices);

(l) section 95 (notices, documents and information);

(m) section 97 (information relating to a procurement);

(n) section 116 (disapplication of section 17 of Local Government Act 1988);

(na) section‍ 120A (disapplication of Act: NHS procurement in Wales);

(o) section 121 (amendment of Act in relation to private utilities);

(p) section 123 (interpretation);

(q) section 125 (power to make consequential, etc, provision), if the regulations made under it modify primary legislation;

(r) paragraph 3 or 5 of Schedule 1 (threshold amounts);

(s) Schedule 2 (exempted contracts);

(t) Schedule 4 (utility activities).

(11) Any other statutory instrument containing regulations made by the Welsh Ministers under this Act is subject to annulment in pursuance of a resolution of Senedd Cymru.

(12) Regulations of a Northern Ireland department under any of the following provisions (whether alone or with other provision) may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly—

(a) section 6 (utilities contracts);

(b) section 9 (light touch contracts);

(d) section 52 (key performance indicators);

(e) section 89 (treaty state suppliers: international agreements);

(f) section 92 (trade disputes);

(g) section 95 (notices, documents and information);

(h) section 97 (information relating to a procurement);

(i) section 121 (amendment of Act in relation to private utilities);

(j) section 123 (interpretation);

(k) section 125 (power to make consequential, etc, provision), if the regulations made under it modify primary legislation;

(l) paragraph 3 or 5 of Schedule 1 (threshold amounts);

(m) Schedule 2 (exempted contracts);

(n) Schedule 4 (utility activities).

(13) Any other regulations of a Northern Ireland department under this Act are subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 as if they were a statutory instrument within the meaning of that Act.

(14) Regulations of the Scottish Ministers under any of the following provisions are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010)—

(za) section 83C (provision to be included in relevant outsourcing contracts);

(zb) section 83F (power to amend section 83A, 83B or 83E);

(a) section 90 (treaty state suppliers: non-discrimination);

(b) section 92 (trade disputes);

Interpretation

123

(1) In this Act—

“appropriate authority” means—a Minister of the Crown,the Welsh Ministers, ora Northern Ireland department;(but see section 83A(2) for a different meaning of “appropriate authority” in Part 5A (outsourcing: protection of workers));

“enactment” includes primary legislation and legislation made under primary legislation;

“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;

“modify”, in relation to enactments, includes amend, repeal or revoke;

“Northern Ireland legislation” has the meaning given in section 24(5) of the Interpretation Act 1978;

“primary legislation” means—an Act of Parliament,an Act of the Scottish Parliament,an Act or Measure of Senedd Cymru, orNorthern Ireland legislation;

“pupil referral unit” means—in England, a pupil referral unit within the meaning given by section 19 of the Education Act 1996;in Wales, a pupil referral unit within the meaning given by section 19A of the Education Act 1996;

“school” means—the governing body of a maintained school (see section 19(1) of the Education Act 2002);the proprietor, within the meaning given by section 579(1) of the Education Act 1996, of an Academy within the meaning given by that section;the proprietor, within the meaning given by section 579(1) of the Education Act 1996, of a school that has been approved under section 342 of that Act;the governing body, within the meaning given by section 90 of the Further and Higher Education Act 1992, of an institution within the further education sector within the meaning given by section 91 of that Act;the Board of Governors of a grant-aided school within the meaning given by Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3));

“small and medium-sized enterprises” means suppliers that—have fewer than 250 staff, andhave a turnover of an amount less than or equal to £44 million, or a balance sheet total of an amount less than or equal to £38 million;

“VAT” means value added tax;

“working day” means a day other than—a Saturday or Sunday, ora day which is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.

(2) In this Act, a reference to an amount payable or paid, receivable or received, or to be paid or received, under a contract includes a reference to any amount referable to VAT.

(3) In this Act, a reference to a contract awarded by a school includes a reference to a contract awarded wholly for the purposes of supplying goods, services or works to a pupil referral unit.

(4) An appropriate authority may by regulations change the definition of “small and medium-sized enterprises”.

(5) Regulations under subsection (4) may amend this section.

Index of defined expressions

124

In this Act the expressions listed in the left-hand column of the table have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.

Expression	Provision
appropriate authority (except in Part 5A)	section 123
appropriate authority (in Part 5A)	section 83A
associated person	section 26
associated tender document	section 21
award criteria	section 23
below-threshold contract	section 5
central government authority	Schedule 1
centralised procurement authority	section 1
competitive flexible procedure	section 20
competitive tendering procedure	section 20
concession contract	section 8
condition of participation	section 22
connected person	Schedule 6
contract award notice	section 50
contract change notice	section 75
contract details notice	section 53
contracting authority	section 2
convertible contract	section 74
covered procurement	section 1
debarment list	section 57
defence and security contract	section 7
defence authority contract	section 7
devolved Scottish authority	section 2
devolved Scottish procurement arrangement	section 114
devolved Welsh authority	section 111
devolved Welsh procurement arrangement	section 114
discretionary exclusion ground	Schedule 7
dynamic market	section 34
enactment	section 123
estimated value	section 4
excludable supplier	section 57
excluded supplier	section 57
exempted contract	Schedule 2
framework	section 45
light touch contract	section 9
mandatory exclusion ground	Schedule 6
Minister of the Crown	section 123
modify	section 123
open framework	section 49
primary legislation	section 123
private utility	section 2
procurement	section 1
public contract	section 3
public undertaking	section 2
publication of a tender notice	section 40
requirements	section 19
reserved procurement arrangement	section 114
school	section 123
Scottish procurement legislation	section 115
small and medium-sized enterprises	section 123
tender notice	section 21
threshold amount	Schedule 1
transferred Northern Ireland authority	section 112
transferred Northern Ireland procurement arrangement	section 114
transparency notice	section 44
treaty state supplier	section 89
United Kingdom supplier	section 90
utilities contract	section 6
utilities dynamic market	section 35
utility	section 35
utility activity	section 6
VAT	section 123
working day	section 123
works	Schedule 1
works contract	Schedule 1

Power to make consequential, etc, provision

125

(1) An appropriate authority may by regulations make supplementary, incidental or consequential provision in connection with any provision of this Act.

(2) Regulations under subsection (1) may modify primary legislation.

Extent

126

This Act extends to England and Wales, Scotland and Northern Ireland.

Commencement

127

(1) This Part comes into force on the day on which this Act is passed.

(2) The remaining provisions of this Act come into force on such day as a Minister of the Crown may by regulations appoint; and different days may be appointed for different purposes.

(3) A Minister of the Crown may not make specified regulations under subsection (2) without the consent of the Welsh Ministers.

(4) In this section, “specified regulations” means regulations to bring into force provisions regulating procurement by a devolved Welsh authority other than procurement under—

(a) a reserved procurement arrangement, or

(b) a transferred Northern Ireland procurement arrangement,

but “specified regulations” does not include regulations to bring into force provisions in Part 7 (implementation of international obligations).

(5) In this section, “devolved Welsh authority” has the meaning given in section 157A of the Government of Wales Act 2006.

(6) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purpose of ensuring that—

(a) Parts 1 to 6 and 8 to 13, or particular provisions in those Parts, so far as not already brought into force under subsection (2) do not regulate procurement by a devolved Welsh authority other than procurement under—

(i) a reserved procurement arrangement, or

(ii) a transferred Northern Ireland procurement arrangement;

(b) existing legislation continues to regulate procurement by devolved Welsh authorities and procurement under devolved Welsh procurement arrangements.

(7) Regulations under subsection (6) may modify this Act.

(8) In this section—

“existing legislation” means any enactment, other than this Act or regulations made under this Act, that is passed or made before section 11 (covered procurement only in accordance with this Act) comes into force;

a reference to a provision regulating procurement includes a reference to a provision conferring a function exercisable in relation to procurement.

Short title

128

This Act may be cited as the Procurement Act 2023.

SCHEDULE 1

1

(1) The threshold amount for a contract of a type referred to in the second column of the table below is the threshold set out in the corresponding row of the third column.

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

	Type of contract	...	...	Threshold amount ...
1	Defence and security contract that is a works contract	...	...	£5,193,000
2	Defence and security contract that is a concession contract	...	...	£5,193,000
3	Defence and security contract not within row 1, 2 or 8	...	...	£415,440

4	Utilities contract that is a works contract	...	...	£5,193,000
5	Utilities contract that is a light touch contract	...	...	£884,720
6	Utilities contract not within row 3, 4 or 5	...	...	£415,440

7	Light touch contract that is a concession contract	...	...	£5,372,609
8	Light touch contract not within row 5 or 7	...	...	£663,540

9	Concession contract not within row 2, 6 or 7	...	...	£5,193,000

10	Works contract not within row 1, 4 or 9	...	...	£5,193,000

11	Contract for the supply of goods, services or works to a central government authority not within any other row	...	...	£135,018
12	Contract for the supply of goods, services or works to a sub-central government authority not within any other row	...	...	£207,720

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) See section 7(3) in relation to the application of the thresholds in the table to certain contracts concerning defence and security.

2

An appropriate authority may by regulations amend this Schedule for the purpose of amending the threshold amount for—

(a) a type of contract in any of rows 4, 6 or 9 to 12 of the table in order to reflect an amendment to the corresponding threshold for contracts of that type in the United Kingdom’s Coverage Schedule to the GPA;

(b) the type of contract in row 1 in order to reflect an amendment to the threshold amount for the type of contract in row 10;

(c) the type of contract in row 2, in order to reflect an amendment to the threshold amount for the type of contract in row 9;

(d) the type of contract in row 3, in order to reflect an amendment to the threshold amount for the type of contract in row 6.

3

An appropriate authority may by regulations amend this Schedule for the purpose of amending the threshold amount for —

(a) any type of light touch contract in row 5, 7 or 8 of the table;

(b) any type of defence and security contract in rows 1 to 3 where the amendment is not within paragraph 2.

4

A contract is a “works contract” if its main purpose is—

(a) the carrying out of works under the contract (whether or not resulting in a complete work), or

(b) to facilitate the carrying out of works otherwise than under the contract, where those works are intended to result in a complete work that complies with specifications set out in, or determined under, the contract.

5

(1) In this Schedule—

“central government authority” means a contracting authority specified, or of a description specified, in regulations made by an appropriate authority;

“complete work” means a functioning structure that results from the carrying out of works;

the “GPA” means the Agreement on Government Procurement signed at Marrakesh on 15 April 1994, as amended from time to time;

“sub-central government authority” means a contracting authority that is not—a central government authority, ora private utility or a public undertaking;

“works” has the meaning given by regulations made by an appropriate authority.

(2) In this Schedule—

(a) a reference to a contract for the supply of goods, services or works to a particular kind of authority includes a reference to a framework for the future award of such contracts;

(b) a reference to a works contract includes a reference to a framework for the future award of works contracts.

SCHEDULE 2

PART 1 — Counterparty exempted contracts

General

1

A contract is an exempted contract if it is a contract of a kind listed in this Part of this Schedule.

Utilities contracts

2

(1) A contract between a contracting authority and a person that is controlled by—

(a) the contracting authority,

(b) the contracting authority acting jointly with one or more other contracting authorities,

(c) another contracting authority, where that authority also controls the contracting authority referred to in paragraph (a), or

(d) another contracting authority acting jointly with one or more other contracting authorities, where the authorities acting jointly also control the contracting authority referred to in paragraph (a).

(2) A contracting authority, or a contracting authority acting jointly with one or more other contracting authorities, controls a person if—

(a) the contracting authority is a parent undertaking, or the contracting authorities are parent undertakings, in relation to the person,

(b) no person other than the authority, or authorities, exerts a decisive influence on the activities of the person (either directly or indirectly),

(i) the contracting authority or authorities, or

(ii) another person that is, or other persons that are, controlled by the authority or the authorities acting jointly, and

(d) in the case of joint control—

(i) each of the contracting authorities is represented on the person’s board, or equivalent decision-making body, and

(ii) the person does not carry out any activities that are contrary to the interests of one or more of the contracting authorities.

(3) A person is not to be regarded as controlled by a contracting authority, or a contracting authority acting jointly with other contracting authorities, if any person that is not a public authority holds shares in the person.

(4) In sub-paragraph (2)(a)—

“parent undertaking” has the meaning given in section 1162 of the Companies Act 2006, save that an “undertaking” includes any person;

“parent undertakings” means two or more contracting authorities acting jointly that would, if they were a single undertaking, be a parent undertaking.

(5) For the purposes of sub-paragraph (2)(b), a person does not exercise a decisive influence on the activities of a person only by reason of being a director, officer or manager of the person acting in that capacity.

(6) An appropriate authority may by regulations make provision about how a calculation as to the percentage of activities carried out by a person is to be made for the purposes of sub-paragraph (2)(c).

(7) For the purposes of sub-paragraph (2)(d)(i), one representative may represent more than one contracting authority.

(8) In this paragraph, references to a contracting authority do not include references to a public undertaking or a private utility.

Horizontal arrangements

3

(1) A contract between contracting authorities only that relates to a horizontal arrangement between those authorities.

(2) A “horizontal arrangement” means an arrangement—

(a) entered into—

(i) with the aim of achieving objectives the authorities have in common in connection with the exercise of their public functions;

(ii) solely in the public interest;

(b) in which no more than 20 per cent of the activities contemplated by the arrangement are intended to be carried out other than for the purposes of the authorities’ public functions.

(3) An appropriate authority may by regulations make provision about how a calculation as to the percentage of activities carried out by a person is to be made for the purposes of sub-paragraph (2)(b).

(4) In this paragraph, references to a contracting authority do not include references to a public undertaking or a private utility.

Defence and security contracts

4

(1) A defence and security contract where the supplier is the government of another state or territory.

(2) In this Schedule “government” includes—

(a) any governing authority;

(b) the government of a region or locality within a state or territory.

Utilities contracts

5

(1) A utilities contract between a utility and a relevant joint venture to which that utility is party, where—

(a) the joint venture was formed for the purpose of carrying out a utility activity for at least three years, and

(b) the parties to the joint venture are committed, by way of a written agreement, to continue to be parties to the joint venture for a period of three years following the date of that agreement.

(2) In this Schedule, “relevant joint venture” means a joint venture—

(a) formed for the purpose of carrying out a utility activity;

(b) where each party to the joint venture is a utility.

6

(1) A utilities contract awarded for the supply of goods, services or works—

(a) by a utility to a person affiliated with the utility, or

(b) where the utility in question is a relevant joint venture, by the utility to a person affiliated with any member of the joint venture,

but only if the turnover test is met by the affiliated person in relation to goods, services or (as the case may be) works.

(2) A person is “affiliated” with another if the person is in the position of a group undertaking of the other person, within the meaning given in section 1161(5) of the Companies Act 2006, whether or not either of them is an undertaking within the meaning given in section 1161(1) of that Act.

(3) The “turnover test” is met in relation to goods, services or works if the affiliated person’s turnover deriving from the supply of goods, services or (as the case may be) works to the utility and other persons affiliated with the utility (their “affiliated turnover amount”) exceeds 80 per cent of their total turnover amount deriving from the supply of goods, services or works.

(4) An appropriate authority may by regulations make provision about how to calculate a person’s affiliated turnover amount and total turnover amount for the purposes of sub-paragraph (3).

(5) The regulations may, in particular, make provision—

(a) for those amounts to be calculated by reference to—

(i) an average amount for a period specified in the regulations;

(ii) another reasonable method so specified;

(b) to secure that, in calculating those amounts in relation to a person (“A”), turnover of a person who is an affiliated person in relation to A is to be treated as part of A’s turnover.

PART 2 — Subject-matter exempted contracts

General

7

(1) A contract is an exempted contract if it is—

(a) a contract of a kind listed in this Part of this Schedule;

(b) a framework for the future award of contracts only of a kind listed in this Part of this Schedule.

(2) But a Part 2-only contract is not an exempted contract if, on award of the contract, a contracting authority considers that—

(a) the goods, services or works representing the main purpose of the contract could reasonably be supplied under a separate contract, and

(b) that contract would not be a contract of a kind listed in this Part of this Schedule.

(3) In considering whether goods, services or works could reasonably be supplied under a separate contract, a contracting authority may, for example, have regard to the practical and financial consequences of awarding more than one contract.

(4) In this paragraph “Part 2-only contract” means a contract of a kind listed in this Part of this Schedule that is not of a kind listed in Part 1 of this Schedule.

Land and buildings etc

8

(1) A contract—

(a) for the acquisition, by whatever means, of land, buildings or any other complete work, or of an interest in or right over any of them, or

(b) which concerns an interest in or right over any of them.

(2) In this paragraph “complete work” has the meaning given in Schedule 1.

Broadcasting

9

A contract for the acquisition, development, production or co-production of material intended for broadcast (by any means) by a contracting authority to the general public.

10

A contract for the broadcast (by any means) by a contracting authority to the general public of material (including, for example, a programme or an advertisement) supplied by the supplier.

Electronic communications services

11

A contract the main purpose of which is facilitating the provision by a contracting authority to the general public of an electronic communications service (within the meaning given in section 32 of the Communications Act 2003).

12

A contract the main purpose of which is permitting a contracting authority to provide, maintain or use a public electronic communications network (within the meaning given in section 151 of the Communications Act 2003).

Alternative dispute resolution

13

A contract for the provision to a contracting authority of arbitration, mediation or conciliation services, or of any other similar services.

Legal services

14

(1) A contract for the provision of exempt legal services to a contracting authority.

(2) The following services are “exempt legal services”—

(a) legal representation by a lawyer in judicial proceedings or other dispute resolution proceedings, whether in or outside the United Kingdom;

(b) the giving of legal advice by a lawyer in connection with, or in contemplation of, any such proceedings;

(c) document certification or authentication services provided by a notary in circumstances where the certification or authentication is required under an enactment or other rule of law to be performed by a notary;

(d) legal services provided by a person required to provide them under an enactment or an order of a court or tribunal.

(3) In this paragraph—

“judicial proceedings” includes proceedings before a court, tribunal or public authority;

“lawyer” means—a person who is an authorised person or an exempt person in relation to a reserved legal activity for the purposes of the Legal Services Act 2007 (see sections 18 and 19 of that Act);a solicitor or advocate in Scotland;a solicitor or barrister in Northern Ireland;a person who is a member, and entitled to practise as such, of a legal profession regulated in a jurisdiction outside the United Kingdom;

“other dispute resolution proceedings” includes arbitration, mediation and conciliation.

Financial services

15

A contract for the lending of money in any currency to a contracting authority.

16

(1) A contract for the provision or carrying out of an investment service or activity, or of an ancillary service, in relation to a financial instrument by an investment firm or a qualifying credit institution.

(2) In this paragraph—

“ancillary service” means a service listed as such in Part 3A of Schedule 2 to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544);

“financial instrument”, “investment firm” and “qualifying credit institution” have the meanings given in Article 3 of that Order;

“investment service or activity” means a service or activity listed as such in Part 3 of Schedule 2 to that Order.

17

A contract for the provision of services by the Bank of England.

Employment

18

(1) A contract of employment or a worker’s contract.

(2) In this paragraph, the expressions “contract of employment” and “worker’s contract”—

(a) in the case of a contract awarded by a transferred Northern Ireland contracting authority or awarded as part of a procurement under a transferred Northern Ireland procurement arrangement, have the meanings given in Article 3 of the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16));

(b) in any other case, have the meanings given in section 230 of the Employment Rights Act 1996.

19

Any other contract between a contracting authority and an individual for the remuneration or compensation of that individual where they are appointed to a public office by the contracting authority, including as a—

(a) non-executive director of a public authority, or

(b) member of a public inquiry.

Emergency services

20

A contract for the provision by an organisation or association not run for profit of one or more of the following services—

(a) services relating to the promotion of fire safety;

(b) fire extinguishing services;

(d) search and rescue services;

(e) civil defence services;

(f) nuclear safety services;

(g) ambulance services provided in respect of medical emergencies.

Public passenger transport services

21

(1) A contract that is required to be awarded in accordance with the public service obligations regulations.

(2) In this paragraph, “the public service obligations regulations” has the meaning given by section 136(11) of the Railways Act 1993.

Research and development services

22

(1) A contract for the provision of research and development services to a contracting authority, where—

(a) the services are intended by the authority to be for, or to result in, benefit to the public, and

(b) the contract does not also provide for the provision of goods or works.

(2) In this paragraph, “research and development services” means services that consist of one or more of the following activities—

(a) research to acquire new scientific or technical knowledge without any particular application or use in view;

(b) research directed mainly at generating scientific or technical knowledge for the purposes of a particular objective;

(c) development which uses existing knowledge to initiate the manufacture of new materials or products, establish new processes, systems or services, or to achieve a substantial improvement in existing materials, products, processes, systems or services;

(d) the manufacture and testing of prototypes.

(3) But services are not “research and development services” if they include—

(a) the production of tools for manufacture, or

(b) the development of industrial processes to manufacture goods or works arising from research or development.

International agreements and organisations

23

A contract awarded under a procedure specified in an international agreement of which the United Kingdom is a signatory relating to—

(a) the stationing of military personnel, or

(b) the implementation of a joint project between the signatories to that agreement.

24

A contract awarded under a procedure—

(a) adopted by an international organisation of which the United Kingdom is a member, and

(b) that is inconsistent in any material respect with the procedure for the award of the contract in accordance with this Act.

National security

25

A contract that the contracting authority determines should not, in the interests of national security, be subject to this Act or a part of this Act.

Prototypes and development

26

A contract for the purposes of carrying out, facilitating or supporting intelligence activities.

Defence and security contracts

27

A defence and security contract where—

(a) the supplier is located in an area outside the United Kingdom in which the armed forces are deployed, and

(b) the operational needs of the armed forces require the contract to be awarded to that supplier.

28

A defence and security contract where—

(a) the supplier is located in a state or territory outside the United Kingdom in which the armed forces maintain a military presence,

(b) that state or territory requires, in connection with that presence, that the supplier supplies the goods, services or works to which the contract relates.

29

A defence and security contract awarded under a procedure adopted by an international organisation of which the United Kingdom is a member.

30

A defence and security contract awarded under an arrangement between the United Kingdom and one or more other states or territories, where the purpose of that arrangement is, or is in connection with—

(a) the joint development of a new product by or on behalf of the parties to the arrangement, or

(b) the exploitation of that product once developed.

Utilities contracts

31

A utilities contract for the supply of goods, services or works to a utility other than one acting as a centralised procurement authority, where—

(a) the purpose of the contract is to allow the further sale or lease of those goods, services or works to a third party,

(b) the utility does not have a special or exclusive right, within the meaning given by section 6(3), to sell or lease those goods, services or works, and

32

A utilities contract for the supply of water to a utility carrying out a utility activity referred to in paragraph 3(1)(a) or (b) of Schedule 4.

33

A utilities contract for the supply of energy, or fuel for the production of energy, to a utility carrying out a utility activity referred to in paragraph 1, 2 or 6 of Schedule 4.

34

A contract for the supply of goods, services or works wholly or mainly for the purpose of an activity that would be a utility activity if it were not specified in Part 2 of Schedule 4.

Concession contracts

35

A concession contract for the carrying out of a utility activity within paragraph 3(1) or (2) of Schedule 4 (water services), ignoring for this purpose the effect of paragraph 3(4) of that Schedule.

36

(1) A concession contract that—

(a) confers an exclusive right to operate a relevant scheduled air service for a period of four years or a series of periods falling within a period of four years, and

(b) imposes minimum service requirements in respect of that service during those periods.

(2) In this paragraph—

“air service” means a flight, or a series of flights, carrying passengers or cargo (including mail);

“airport” means any area especially adapted for air services;

“relevant scheduled air service” means an air service that—operates between two airports within the United Kingdom or within the United Kingdom and Gibraltar, andthe Secretary of State considers to be necessary in order to maintain sufficient transport links between the areas served by the airports.

37

A concession contract for the provision of public passenger transport services.

Commercial contracts of the City of London

38

A contract for the supply of goods, services or works to the Common Council of the City of London other than for the purposes of its functions as a local authority, police authority or port health authority.

SCHEDULE 3

General rule

1

(1) A contracting authority must estimate the value of a contract as the maximum amount it could expect to pay under the contract including, where applicable, amounts already paid.

(2) The amount a contracting authority could expect to pay includes the following—

(a) the value of any goods, services or works provided by the contracting authority under the contract other than for payment;

(b) amounts that would be payable if an option in the contract to supply additional goods, services or works were exercised;

(c) amounts that would be payable if an option in the contract to extend or renew the term of the contract were exercised;

(d) amounts representing premiums, fees, commissions or interest that could be payable under the contract;

(e) amounts representing prizes or payments that could be payable to participants in the procurement.

(3) In estimating the value of a contract, a contracting authority must take into account all of the facts which are material to the estimate and available to the authority at the time it makes the estimate.

(4) This paragraph is subject to the rest of this Schedule.

Frameworks

2

(1) A contracting authority must estimate the value of a framework as the sum of the estimated values of all the contracts that have or may be awarded in accordance with that framework.

(2) In the case of a framework awarded under an open framework, the value of the framework is to be treated as including the value of all frameworks awarded, or to be awarded, under the open framework.

(3) In this Schedule, “framework” has the meaning given in section 45(2).

Concession contracts

3

(1) Paragraph 1 does not apply to the estimation of the value of a concession contract.

(2) A contracting authority must estimate the value of a concession contract as the maximum amount the supplier could expect to receive under or in connection with the contract including, where applicable, amounts already received.

(3) The amount a supplier could expect to receive includes the following—

(a) amounts representing revenue (whether monetary or non-monetary) receivable pursuant to the exploitation of the works or services to which the contract relates (whether from the contracting authority or otherwise);

(b) the value of any goods, services or works provided by the contracting authority under the contract other than for payment;

(d) amounts that would be receivable if an option in the contract to extend or renew the term of the contract were exercised;

(e) amounts representing premiums, fees, commissions or interest that could be receivable under the contract;

(f) amounts received on the sale of assets held by the supplier under the contract.

Anti-avoidance

4

(1) Sub-paragraph (2) applies where—

(a) a contracting authority estimates the value of two or more contracts, and

(b) the goods, services or works to be supplied under the contracts could reasonably be supplied under a single contract.

(2) The contracting authority must estimate the value of each of the contracts as including the value of all of the contracts, unless the authority has good reasons not to do so.

Cases where estimate not possible

5

If a contracting authority is unable to estimate the value of a contract in accordance with this Schedule (for example because the duration of the contract is unknown), the authority is to be treated as having estimated the value of the contract as an amount of more than the threshold amount for the type of contract.

SCHEDULE 4

PART 1 — Activities that are utility activities

Gas and heat

1

(1) The following are utility activities—

(a) the provision or operation of a fixed network for the provision of a service to the public in connection with the production, transport or distribution of gas or heat;

(b) the supply of gas or heat to such a network.

(2) But the supply of gas or heat to a network is not a utility activity if—

(a) the person supplying it (the “operator”) is a private utility or a public undertaking,

(b) the production of gas or heat by the operator is a necessary consequence of carrying out an activity other than a specified activity, and

(c) the amount of gas or heat supplied to the network represents not more than 20 per cent of the operator’s turnover amount.

(3) An appropriate authority may by regulations make provision about how to calculate an amount referred to in sub-paragraph (2)(c).

(4) The regulations may, in particular, make provision for such an amount to be calculated by reference to—

(a) an average amount for a period specified in the regulations;

(b) another reasonable method so specified.

Electricity

2

(1) The following are utility activities—

(a) the provision or operation of a fixed network for the provision of a service to the public in connection with the production, transport or distribution of electricity;

(b) the supply of electricity to such a network.

(2) But the supply of electricity to a network is not a utility activity if—

(a) the person supplying it (the “operator”) is a private utility or a public undertaking,

(b) the operator produces electricity because it needs electricity to carry out an activity other than a specified activity,

(c) the supply consists only of electricity that was produced by the operator as mentioned in paragraph (b) but which it has not consumed, and

(d) the amount of electricity supplied represents not more than 30 per cent of the amount of energy produced by the operator.

(3) An appropriate authority may by regulations make provision about how to calculate an amount referred to in sub-paragraph (2).

(4) The regulations may, in particular, make provision for such an amount to be calculated by reference to—

(a) an average amount for a period specified in the regulations;

(b) another reasonable method so specified.

Water

3

(1) The following are utility activities—

(a) the provision or operation of a fixed network for the provision of a service to the public in connection with the production, transport or distribution of drinking water;

(b) the supply of drinking water to such a network.

(2) The following are utility activities to the extent that they are carried out by a person who also carries out activities within sub-paragraph (1)—

(a) any activity connected with a hydraulic engineering project, irrigation or land drainage in circumstances where the condition in sub-paragraph (3) is met;

(b) any activity connected with the disposal or treatment of sewage.

(3) The condition is that a person carrying out the activity would reasonably expect that more than 20 per cent of the water made available by the project, irrigation or land drainage is to be supplied as drinking water to a network within sub-paragraph (1)(a).

(4) The supply of drinking water as mentioned in sub-paragraph (1)(b) is not a utility activity if—

(a) the person supplying it (the “operator”) is a private utility or a public undertaking,

(b) the operator produces drinking water because it needs drinking water to carry out an activity that is not a specified activity,

(c) the supply consists only of drinking water that was produced by the operator as mentioned in paragraph (b) but which it has not consumed, and

(d) the amount of drinking water supplied represents not more than 30 per cent of the amount of drinking water produced by the operator.

(5) An appropriate authority may by regulations make provision about how to calculate an amount referred to in sub-paragraph (4).

(6) The regulations may, in particular, make provision for such an amount to be calculated by reference to—

(a) an average amount for a period specified in the regulations;

(b) another reasonable method so specified.

Transport

4

An activity is a utility activity if it relates to the provision or operation of a network for the provision of a service to the general public for transport, whether by rail, tram, bus or other means.

Ports and airports

5

(1) An activity relating to the exploitation of a geographical area for the following purposes is a utility activity—

(a) the provision of an airport to carriers of passengers or goods by air;

(b) the provision of a port or other terminal facilities to carriers of passengers or goods by sea or inland waterway.

(2) In this paragraph “airport” has the same meaning as in Part 1 of the Civil Aviation Act 2012 (see section 66 of that Act).

Failure to cooperate with investigation

6

An activity relating to the exploitation of a geographical area for the following purposes is a utility activity—

(a) extracting oil or gas;

(b) searching for or extracting coal or other solid fuels.

Interpretation of Schedule

7

In this Part of this Schedule—

“specified activity” means an activity specified in paragraph 1(1), 2(1), 3(1) or 4;

“supply” includes— production, but not the production of gas in the form of extraction (as to which, see paragraph 6), and generation and wholesale or retail sale.

PART 2 — Activities that are not utility activities

8

Generation of electricity in England, Scotland or Wales.

9

Production of electricity in England, Scotland or Wales.

10

Wholesale or retail sale of electricity in England, Scotland or Wales.

11

Wholesale or retail sale of gas in England, Scotland or Wales.

12

Exploration for oil in England, Scotland or Wales.

13

Exploration for natural gas in England, Scotland or Wales.

14

Production of oil in England, Scotland or Wales.

15

Production of natural gas in England, Scotland or Wales.

16

Development of infrastructure for production of oil in England, Scotland or Wales.

17

Development of infrastructure for production of natural gas in England, Scotland or Wales.

SCHEDULE 5

1

This Schedule contains the direct award justifications.

Prototypes and development

2

The public contract concerns the production of a prototype, or supply of other novel goods or services, for the purpose of—

(a) testing the suitability of the goods or services,

(b) researching the viability of producing or supplying the goods or services at scale and developing them for that purpose, or

3

In paragraph 2, “novel goods or services” means goods or services designed or developed at the request of the contracting authority.

Single suppliers

4

The public contract concerns the creation or acquisition of a unique work of art or artistic performance.

5

The following conditions are met in relation to the public contract—

(a) due to a particular supplier having intellectual property rights or other exclusive rights, only that supplier can supply the goods, services or works required, and

(b) there are no reasonable alternatives to those goods, services or works.

6

The following conditions are met in relation to the public contract—

(a) due to an absence of competition for technical reasons, only a particular supplier can supply the goods, services or works required, and

(b) there are no reasonable alternatives to those goods, services or works.

Additional or repeat goods, services or works

7

The public contract concerns the supply of goods, services or works by the existing supplier which are intended as an extension to, or partial replacement of, existing goods, services or works in circumstances where—

(a) a change in supplier would result in the contracting authority receiving goods, services or works that are different from, or incompatible with, the existing goods, services or works, and

(b) the difference or incompatibility would result in disproportionate technical difficulties in operation or maintenance.

8

The public contract concerns the supply of goods, services or works by the existing supplier that are similar to existing goods, services or works where—

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