The following Public Law Q&A Produced in partnership with Peter Ware and Marina Javed of Browne Jacobson provides comprehensive and up to date legal information covering:
The Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, reg 57, sets out mandatory and discretionary grounds for exclusion of economic operators. The grounds for exclusion are ongoing and contracting authorities must ensure that bidders deemed eligible to tender maintain their eligibility throughout the procurement process.
PCR 2015, SI 2015/102, reg 57(8)(g) allows exclusion for poor past performance where the performance has been ‘significantly or persistently deficient’ and such poor performance has led to early termination, damages or other comparable sanctions. Eg failure to provide information on request, on its own, may not be sufficient to meet all parts of the test. It is only where such breach leads to early termination of that prior contract, damages or other comparable sanction that this exclusion ground is triggered. Accordingly, the contracting authority seeking to exclude for past poor performance would have to satisfy itself that the bidder’s earlier breach had led the contracting authority to levy one of those serious sanctions. If no sanction was made or any sanction made was not of the type set out in the regulation then the economic operator could not be excluded on this ground.
PCR 2015, SI 2015/102, reg 57(12) also g
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