The following Commercial Q&A provides comprehensive and up to date legal information covering:
A contracting authority (CA) may wish to limit the number of bids a tenderer may submit in a public procurement exercise. The CA’s power to decide whether to do so must be exercised taking into account capacity, open competition and equal treatment and/or in order to ensure the integrity and objectives of the procurement in accordance with the applicable rules. For background reading, see Practice Notes: Introduction to public contracts procurement and The principles of EU procurement.
In practice, multiple tenders for the same contract may be submitted in the following scenarios:
a tenderer acting alone could submit a number of bids in response to an expression of interest/invitation to tender, and
a supplier might participate alone in one tender submission, and in one or more groups in respect of other tender submissions
In these scenarios a CA is not under an obligation imposed by EU law, English law or in particular the Public Contracts Regulations 2015, SI 2015/102 (PCR 2015), to allow a tenderer to submit two or more bids or to participate.
In Makedoniko Metro and another v Elliniko Dimosio, the Court of Justice observed that it is a matter for national law (and assuming no restriction applies, then for individual contracting authorities) to impose rules on the composition of groups, and any change in their composition.
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Fraud by false representationFraud by false representation applies to a broader range of conduct than the offences under the preceding legislation (the Theft Act 1968 (TA 1968)). No gain or loss need actually be made, and no deception need operate on the mind of the deceived for the Fraud Act 2006
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This Practice Note discusses the common law doctrine of privity of contract; the equitable and statutory exceptions to it; how the doctrine affects enforcing a contract against a third party and what happens when, notwithstanding the lack of privity, a contract has an indirect effect on a third
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