Q&As

Are there any case law examples relating to the exclusion of a bidder based on past poor performance under regulation 57(8)(g) of the Public Contracts Regulations 2015?

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Produced in partnership with Joseph Dalby SC of The 36 Group
Published on LexisPSL on 16/12/2016

The following Public Law Q&A Produced in partnership with Joseph Dalby SC of The 36 Group provides comprehensive and up to date legal information covering:

  • Are there any case law examples relating to the exclusion of a bidder based on past poor performance under regulation 57(8)(g) of the Public Contracts Regulations 2015?

In a public procurement exercise regulated by the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102 , a contracting authority may award a contract to a tenderer that:

  1. is not excluded

  2. meets the selection criteria, and

  3. satisfies any non-discriminatory rules and criteria applied for limiting the number of candidates (where applicable)

PCR 2015, SI 2015/102, reg 57(8)(g), which derives from Article 57(4)(g) of Directive 2014/24/EU, permits contracting authorities to exclude an economic operator from participation in a public procurement procedure on the grounds that the economic operator has shown ‘significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract...which led to early termination of that prior contract, damages or other comparable sanctions.’

Express provision to exclude a bidder for poor performance in previous contracts was introduced by the PCR 2015, SI 2015/102 in order to drive value and reliability in the delivery of public services. The Crown Commercial Service published a Procurement Policy Note with guidance on the recommended approach for contracting authorities. See: Procurement Policy Note 04/15: taking account of suppliers’ past performance.

The government has since issued a Standard Selection Questionnaire for use in public procurement, which provides a standard pre-qualification enquiry for economic operators to provide details of past poor performance. See: Procurement Policy Note 8/16: Standard Selection Questionnaire (SQ).

Evaluation of prior performance has been a feature of

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