Q&As

Are there any legislative restrictions against a contracting authority requiring bidders for a public contract to use (and contract with) an existing/particular third-party supplier as part of the bid process?

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Produced in partnership with Brendan Ryan of Norton Rose Fulbright
Published on LexisPSL on 30/04/2018

The following Local Government Q&A Produced in partnership with Brendan Ryan of Norton Rose Fulbright provides comprehensive and up to date legal information covering:

  • Are there any legislative restrictions against a contracting authority requiring bidders for a public contract to use (and contract with) an existing/particular third-party supplier as part of the bid process?

This Q&A focuses on public procurement under the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102.

As a general rule, PCR 2015, SI 2015/102 gives bidders a significant degree of freedom to develop their bid partnership and supply chain arrangements as they see fit. PCR 2015, SI 2015/102, reg 63(1) provides that bidders may rely on the capacities of other entities for the purposes of meeting the selection criteria relating to economic and financial standing, as well as technical and professional ability. PCR 2015, SI 2015/102, reg 63(7) operates as a minor exception to this, allowing contracting authorities to require that certain ‘critical tasks’ in a public services contract or public works contract be performed by the prime contractor or one of a group of prime contractors.

In other words, bidders generally cannot be prevented from using their own suppliers for the purposes of performing a public contract. However, this assumes that the function of those third-party suppliers is not expressly excluded from the terms of the tender process. Take for example a contract for electrical works―the contracting authority might expressly provide that bidders are not to ‘price in’ the cost of electrical supplies used for the works because, for example, it already has a framework agreement unde

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