Eleanor Laing
Main Page: Eleanor Laing (Conservative - Epping Forest)Department Debates - View all Eleanor Laing's debates with the Cabinet Office
Tuesday 13th June 2023
(10 months, 3 weeks ago)
Commons ChamberRead Full debate Procurement Act 2023 View all Procurement Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 13 June 2023 - large print - (13 Jun 2023)
The Parliamentary Secretary, Cabinet Office (Alex Burghart)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
New clause 1—Removal from the procurement supply chain of physical surveillance equipment produced by companies subject to the National Intelligence Law of the People’s Republic of China—
“(1) Within six months of the passage of this Act, the Secretary of State must publish a timeline for the removal from the Government’s procurement supply chain of physical surveillance equipment produced by companies subject to the National Intelligence Law of the People’s Republic of China.
(2) The Secretary of State must lay the timeline before Parliament.”
New clause 9—Application of this Act to procurement by NHS England—
“(1) Omit sections 79 and 80 of the Health and Care Act 2022.
(2) For the avoidance of doubt, the provisions of this Act apply to procurement by NHS England.”
This new clause includes the NHS under this Act and procurement by NHS England under the Health and Care Act 2022.
New clause 10—Tax transparency—
“(1) This section applies to any covered procurement for a public contract with an estimated value of £5 million or over.
(2) When assessing tenders under section 19 or awarding a contract under section 41 or 43, a contracting authority must require the submission of a tax report where a supplier is a multi-national supplier.
(3) Where a multi-national supplier fails to submit a tax report, a contracting authority must exclude the supplier from participating in, or progressing as part of, the competitive tendering procedure.
(4) Subject to subsection (5), a contracting authority that enters into a contract with a multi-national supplier must publish a copy of the tax report—
(a) if the contract is a light touch contract, before the end of the period of 120 days beginning with the day on which the contract is entered into;
(b) otherwise, before the end of the period of 30 days beginning with the day on which the contract is entered into.
(5) Where a copy of a contract is by virtue of regulations under section 95 published under section 53(3) on a specified online system, the tax report relating to that contract must be published on the same specified online system—
(a) if the contract is a light touch contract, before the end of the period of 120 days beginning with the day on which the contract is entered into;
(b) otherwise, before the end of the period of 30 days beginning with the day on which the contract is entered into.
(6) A ‘multi-national supplier’ is a supplier with two or more enterprises that are resident for tax purposes in two or more different jurisdictions.
(7) A ‘tax report’ means a report setting out—
(a) the income booked in the UK,
(b) the profit before tax attributable to the UK,
(c) the corporate income tax paid on a cash basis in the UK,
(d) the corporate income tax accrued on profit/loss attributable to the UK, and
(e) any other information specified in regulations under section 95
for the multinational supplier.
(8) A Minister of the Crown may by regulations amend this section for the purpose of changing the financial threshold.”
This new clause would require large multinational corporations bidding for a public contract to provide information about their Income booked in the UK, their profit before tax attributable to the UK, their corporate income tax paid on a cash basis in the UK and their corporate income tax accrued on profit/loss attributable to the UK, and that information to be published.
New clause 11—Public interest—
“(1) Where a contracting authority is considering outsourcing public services that are at the time of consideration delivered in-house or where contracts are due for renewal, the contracting authority must demonstrate that they have considered whether outsourcing or re-contracting provides greater public value than direct service provision.
(2) As part of the duty in subsection (1), the contracting authority should demonstrate that it has assessed the potential benefits and impact of outsourcing the service in question against a public sector comparator with assessments being based on criteria to be set by the Secretary of State, including taking a five year consideration of—
(a) service quality and accessibility;
(b) value for money of the expenditure;
(c) implications for other public services and public sector budgets;
(d) resilience of the service being provided;
(e) implications for the local economy and availability of good work in relevant sub-national labour markets;
(f) implications for public accountability and transparency;
(g) effect on employment conditions, terms and standards within the provision of the service to be outsourced and when outsourced;
(h) implications for public sector contributions to climate change and environmental targets;
(i) implications for the equalities policies of the contracting authority and compliance with the public sector equality duty.
(3) The contracting authority and the supplier of the outsourced service must monitor the performance of any contracted service against the public interest test and the stated objectives set by the contracting authority pre-procurement to demonstrate that outsourcing the service in question has not resulted in a negative impact on any of the matters mentioned in subsection (2)(a) to (i).
(4) The Secretary of State must from time to time set budget thresholds for when a public interest test would be required.”
The new clause would create a process to ensure that contracting authorities safeguard the public interest when considering whether or not to outsource or recontract services.
New clause 12—Protection of subcontractors’ payments under construction contracts—
“(1) A project bank account must be established for the purpose of subsections (2) to (4) in accordance with the following requirements—
(a) the account must be set up by the contracting authority and the contractor under a construction contract as joint account-holders;
(b) the monies in the account are held in trust by the contracting authority and contractor as joint trustees;
(c) the contracting authority must deposit in the account all sums becoming due to the beneficiaries and any disputed sums must remain in the account until the dispute is resolved and any retention monies remain in the account until they are released to the beneficiaries;
(d) due payments from the account must be made to all beneficiaries simultaneously; and
(e) the beneficiaries include—
(i) the contractor;
(ii) all subcontractors where the value of each subcontract is at least 1% of the value (excluding VAT) of the construction contract entered into between the contracting authority and the contractor; and
(iii) any other subcontractor which has specifically requested that its payments be discharged through the account.
(2) Subsections (3) and (4) have application to construction contracts having a value in excess of £2 million (excluding VAT).
(3) Not later than 30 days after entering into a construction contract a contracting authority must ensure that a project bank account is in place.
(4) In the event that a contracting authority fails to comply with this subsection the construction contract ceases to be valid and may not be enforced by either party.
(5) The Secretary of State must provide statutory guidance on the operation of project bank accounts to ensure that such operation is standardised amongst all contracting authorities.
(6) Subsections (7) to (10) apply where retention monies are not protected within a project bank account.
(7) The contracting authority must establish a retention deposit account with a bank or building society which fulfils the requirements of subsection (1)(a) and (b).
(8) On each occasion that retention monies are withheld the contracting authority must lodge them within the retention deposit account and maintain a record of the names of each subcontractor having contributed to the withheld monies and the amount of the monies contributed by each.
(9) Subject to subsection (10), not later than 30 days after the date of handover of each subcontracted works at least 50% of the withheld retention monies must be released, and not later than the date which is 12 months from the date of handover of each subcontracted works the balance of the retention monies must be released.
(10) A contracting authority has a right of recourse to subcontractors’ retention monies but such right is limited to any subcontractor which is in default of its subcontract in having delivered works which are defective and in breach of the subcontract.
(11) Paragraphs (9) and (10) also apply where retention monies are protected in a project bank account.
(12) Non-compliance with subsections (6) to (11) renders any entitlement to withhold retention monies in a construction contract or subcontracts of no effect.
(13) Subsections (6) to (12) do not affect the right of any subcontractor to pursue recovery of any outstanding or wrongfully withheld retention monies against its other contracting party.
(14) The Secretary of State must provide statutory guidance on the operation of retention deposit accounts to ensure such operation is standardized amongst all contracting authorities.
(15) Any dispute under this section is referrable to adjudication in accordance with section 108 of the Housing Grants, Construction and Regeneration Act 1996.
(16) The Secretary of State must carry out a review of the operation of this section within 5 years of it coming into force.
(17) In this section—
“bank” has the meaning given to it in section 2 of the Banking Act 2009;
“building society” has the meaning given to it in section 119 of the Building Societies Act 1986;
“contractor” is the party engaged under a construction contract with a contracting authority;
“construction contract” has the meaning given to it in section 104, Housing Grants, Construction and Regeneration Act 1996;
“handover of each subcontracted works” signifies the date when the works as defined in each subcontract are substantially complete;
“project bank account” is an account set up with a bank or building society which has the requirements listed in subsection (2);
“retention monies” mean a proportion of monies withheld from payments which would otherwise be due under a construction contract, subcontract or any ancillary contract the effect of which is to provide security for the current or future performance by the party carrying out the works;
“subcontract” and “subcontractor” includes sub-subcontracts and sub-subcontractors.”
This new clause ring-fences monies due to subcontractors in construction supply chains through mandating use of project bank accounts and ensuring retention monies are safeguarded in a separate and independent account.
New clause 13—Dependence on high-risk states—
“(1) The Secretary of State must within six months publish a plan to reduce the dependence of public bodies upon goods and services which originate in whole or in part in a country considered by the United Kingdom as a high risk sourcing country.
(2) For the purposes of this section, a country is considered a high risk sourcing country by the United Kingdom if it is defined as either a systemic competitor or a threat in the latest Integrated Review of Security, Defence, Development and Foreign Policy.”
New clause 14—Procurement and human rights—
“(1) A contracting authority may apply a policy under which it does not contract for the supply of goods, services or works from a foreign country or territory based on the conduct of that foreign country or territory relating to human rights, provided that—
(a) the contracting authority has a Statement of Policy Relating to Human Rights, and
(b) that statement of policy is applied consistently and not specifically to any one foreign country or territory.
(2) Within six months of the passage of this Act, the Secretary of State must publish, and lay before Parliament, guidance on the form, content and application of Statements of Policy Relating to Human Rights for the purposes of subsection (1).
(3) Contracting authorities must have regard to the guidance published under subsection (2) when applying a policy in accordance with subsection (1).”
This new clause would enable public authorities to choose not to buy goods or services from countries based on their human rights record. They would not be able to single out individual nations to apply such a policy to, but would have to apply it consistently, and in accordance with guidance published by the Secretary of State.
New clause 16—Eradicating slavery and human trafficking in supply chains—
“(1) The Secretary of State must by regulations make such provision as the Secretary of State thinks appropriate with a view to eradicating the use in covered procurement of goods or services that are tainted by slavery and human trafficking.
(2) The regulations may, in particular, include—
(a) provision as to circumstances in which a supplier is excluded from consideration for the award of a contract;
(b) provision as to steps that must be taken by contracting authorities for assessing and addressing the risk of slavery and human trafficking taking place in relation to people involved in procurement supply chains;
(c) provision as to matters for which provision must be made in contracts for goods or services entered into by contracting authorities, including mandating or enabling the use of forensic supply chain tracing.
(3) In this section— “forensic supply chain tracing” is the process of using forensic techniques to track the movement of goods and services through a supply chain; “slavery and human trafficking” has the meaning given by section 54(12) of the Modern Slavery Act 2015; “tainted”: goods or services are “tainted” by slavery and human trafficking if slavery and human trafficking takes place in relation to anyone involved in the supply chain for providing those goods or services.”
New clause 17—Food procurement—
“(1) A public contract which includes the supply of food must include provisions ensuring that the supply of food under that contract—
(a) is aligned with the Eatwell Guide, and
(b) includes options suitable for a plant-based diet.
(2) The ‘Eatwell Guide’ is the policy tool used to define government recommendations on eating healthily and achieving a balanced diet published by Public Health England on 17 March 2016, as updated from time to time.”
This new clause would require public contracts for the supply of food to be aligned with current nutritional guidelines and to include plant-based options.
Amendment 14, in clause 2, page 2, line 15, after “funds,” insert “including the NHS,”.
This amendment includes the NHS in the definition of a public authority for the purposes of this Act.
Government amendments 19 and 20.
Amendment 60, in clause 13, page 10, line 11, at end insert—
“(3A) When the Minister lays the statement before Parliament, the Minister must also lay before Parliament a report which sets out—
(a) the Secretary of State’s assessment of the impact of the statement on meeting environmental and climate targets,
(b) the steps the Secretary of State has taken or intends to take in relation to procurement to support the meeting of those targets.”
This amendment would require the Secretary of State to explain in a report laid before Parliament the Government’s assessment of the impact of the national procurement policy statement on meeting environmental and climate targets and to set out any intended steps in relation to the meeting of those targets.
Amendment 4, in clause 19, page 13, line 31, at end insert—
“(aa) must disregard any tender from a supplier that does not guarantee the payment of at least the Real Living Wage to all its own employees and contracted staff and those of any sub-contractors;”
This amendment, together with Amendments 5 to 8, is designed to ensure that no public contract can be let unless the supplier guarantees the payment of the Real Living Wage to all those involved in the delivery of the contract.
Amendment 5, in clause 41, page 28, line 26, at end insert—
“(3A) A contracting authority may not award a contract under this section to a supplier that does not guarantee the payment of at least the Real Living Wage to all its own employees and contracted staff and those of any sub-contractors.”
See explanatory statement to Amendment 4.
Amendment 1, in clause 42, page 29, line 14, at end insert—
“(3A) Provision under subsection (1) must not confer any preferential treatment on suppliers connected to or recommended by members of the House of Commons or members of the House of Lords.”
This amendment is intended to prevent the future use of “VIP lanes” for public contracts.
Government amendments 21 to 23.
Amendment 6, in clause 43, page 30, line 3, at end insert—
“(5A) A contracting authority may not award a contract under subsection (1) to a supplier that does not guarantee the payment of at least the Real Living Wage to all its own employees and contracted staff and those of any sub-contractors.”
See explanatory statement to Amendment 4.
Amendment 2, in clause 44, page 30, line 16, at end insert—
“(4) Any Minister of the Crown, Member of Parliament, Member of the House of Lords or senior civil servant involved in recommending a supplier for a contract under section 41 or 43 must make a public declaration to the Cabinet Office of any private financial interest in that supplier within 10 working days.”
This amendment would implement a recommendation by the National Audit Office that any contracts awarded under emergency provisions or direct awards should include transparency declarations.
Amendment 7, in clause 45, page 31, line 6, at end insert—
“(aa) permit the award of a public contract to a supplier that does not guarantee the payment of at least the Real Living Wage to all its own employees and contracted staff and those of any sub-contractors.”
See explanatory statement to Amendment 4.
Government amendments 24 to 30.
Amendment 61, in clause 58, page 40, line 38, leave out paragraph (c).
This amendment would remove provision allowing a contracting authority to have regard to commitments to prevent circumstances giving rise to the application of an exclusion ground from occurring again when considering whether a supplier should be excluded.
Amendment 62, page 40, line 41, leave out paragraph (e).
This amendment would remove provision allowing a contracting authority to have regard to evidence, explanations or factors not specified elsewhere in the clause when considering whether a supplier should be excluded.
Amendment 63, page 41, line 8, leave out subsection (3).
This amendment removes clause 58 (3), which limits the ability of a contracting authority to require whatever evidence is necessary to make their assessment about whether a supplier is reliable.
Government amendments 31 to 50.
Amendment 17, in clause 68, page 49, line 15, at end insert—
“(10A) Within a year of the passage of this Act, the Secretary of State must prepare, publish and lay before Parliament a report on the effectiveness of this section in ensuring prompt payment of small and medium-sized enterprises.
(10B) Not later than 6 months after the report has been laid before Parliament, a Minister of the Crown must make a motion in the House of Commons in relation to the report.”
This amendment would require the Government to report to Parliament on the effectiveness of this section in ensuring prompt payment of SMEs.
Amendment 68, in clause 71, page 51, line 11, at end insert—
“(6A) When a planned procurement notice is published under section 15 or a tender notice is published under section 21, the contracting authority must include a statement of the outcomes which the contract is intended to achieve.
(6B) The contracting authority must commission an independent evaluation of whether each contract delivered the outcomes mentioned in subsection (6A), unless the contract is excluded by regulations under subsection (6D).
(6C) An evaluation under subsection (6B) must—
(a) be performed by an independent body in accordance with UK Government Evaluation Standards, and include a clear recommendation on whether similar further public contracts should be begun, renewed or extended;
(b) be commissioned in time to be completed within six months of contract termination, renewal or extension;
(c) be published in full by the contracting authority immediately it is received from the independent external body.
(6D) The Secretary of State may by regulations specify types of contracts that do not require independent evaluations under subsection (6B).
(6E) Where the independent evaluation under subsection (6B) recommends that similar public contracts should not be begun, extended or renewed, any contracting authority which nonetheless intends to do so must publish its reasons not less than 30 days before the agreement is begun, extended or renewed.”
Government amendments 51 to 55.
Amendment 13, page 78, line 12, leave out clause 119.
Amendment 8, in clause 122, page 82, line 5, at end insert—
“‘Real Living Wage’ means the hourly wage rates for London and for outside London calculated annually by the Resolution Foundation and overseen by the Living Wage Commission (or their successor bodies);”.
This amendment inserts a definition of the Real Living Wage for the purposes of Amendments 4 to 7.
Government amendment 56.
Amendment 64, in schedule 6, page 106, line 7, at end insert
“or an offence under section 86, 88 or 92 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.”
This amendment is intended to ensure that the full range of criminal offences for money laundering are properly captured for the purposes of exclusion from public procurement.
Amendment 65, page 106, line 12, leave out “or 6” and insert ”, 6 or 7”.
This amendment includes the failure of commercial organisations to prevent bribery as an offence which is a mandatory exclusion ground.
Amendment 66, page 106, line 14, at end insert—
18A An offence under Schedule 3 of the Anti-Terrorism, Crime and Security Act 2001 (sanctions evasion offences).”
This amendment is intended to make criminal offences for sanctions evasion grounds for mandatory exclusion from public procurement.
Government amendment 57.
Amendment 15, page 110, line 12, at end insert—
“National security
42A A mandatory exclusion ground applies to a supplier if a decision-maker determines that the supplier or a connected person poses a threat to the national security of the United Kingdom.”
This amendment would move national security from among the discretionary exclusion grounds in Schedule 7 to the mandatory exclusion grounds in Schedule 6.
Government amendment 58.
Amendment 18, in schedule 7, page 113, line 2, at end insert—
“1A A discretionary exclusion ground applies to a supplier if a contracting authority determines that a supplier, within a year leading to the date of tender—
(a) has been found by an employment tribunal or court to have significantly breached the rights of an employee or worker engaged or formerly engaged by it with one or more aggravating features, or has admitted to doing so; and
(b) has not conformed with applicable obligations in the fields of environmental, social and labour law established by national law, collective agreements or international environmental, social and labour law provisions; and
(c) has not taken steps to rectify the situation through—
(i) paying or undertaking to pay compensation in respect of any damage caused by the breach of rights; and
(ii) clarifying the facts and circumstances in a comprehensive manner by actively collaborating with any relevant employment tribunal or court process and the parties thereto; and
(iii) taking concrete technical, organisational and personnel measures appropriate to prevent further breaches of rights of a similar kind.
1B In making a decision on whether a discretionary exclusion ground applies to a supplier under paragraph 1A, a contracting authority must—
(a) evaluate the adequacy of any action taken by the supplier in accordance with sub-paragraph (c) of that paragraph, taking into account the gravity and particular circumstances of the breach or breaches of rights, and
(b) make reasonable provision for the employer and the employee or worker concerned to make representations, which may be made by agreement by a trade association or trade union.”
This amendment would give contracting authorities the discretion to exclude suppliers who have significantly and repeatedly breached the rights of staff in the last year unless they have “self-cleansed”.
Amendment 67, page 113, line 17, at end insert—
“Financial and economic misconduct
3A A discretionary exclusion ground applies to a supplier if the decision-maker considers that there is sufficient evidence that the supplier or a connected person has engaged in conduct (whether in or outside the United Kingdom) constituting (or that would, if it occurred in the United Kingdom, constitute) any of the following offences—
(a) an offence under section 327, 328 or 329 of the Proceeds of Crime Act 2002 (money laundering offences);
(b) an offence under section 86, 88 or 92 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017;
(c) an offence under Schedule 3 to the Anti-terrorism, Crime and Security Act 2001 (sanctions evasion offences);
(d) an offence under section 2, 3, 4, 6 or 7 of the Fraud Act 2006 (fraud offences);
(e) an offence under section 993 of the Companies Act 2006 (fraudulent trading);
(f) an offence under section 1, 2, 6 or 7 of the Bribery Act 2010 (bribery offences).”
This amendment is intended to allow relevant Ministers and Contracting Authorities the power to exclude suppliers from procurement where they have evidence of financial and economic criminal activity, such as fraud, money laundering, bribery or sanctions evasion, but there has not yet been a conviction by a court.
Amendment 16, page 116, line 6, at end insert—
“Sanctions offences
14A(1) A discretionary exclusion ground applies to a supplier if the decision-maker considers that the supplier or a connected person has engaged in conduct constituting—
(a) An offence established in any regulations made under Part 1 of the Sanctions and Anti-Money Laundering Act 2018;
(b) An offence established under Part 5 of the Customs and Excise Management Act 1979.
(2) A discretionary exclusion ground applies to a supplier if the decision-maker considers that there is sufficient evidence that the supplier or a connected person has engaged in conduct outside of the United Kingdom that could result in such an offence being committed if that conduct occurred in the United Kingdom.”
This amendment would create a discretionary exclusion ground where a supplier (or connected person) has violated UK sanctions or export controls, or would have done so if they were in the UK.
Amendment 3, page 116, line 10, at end insert—
“Involvement in forced organ harvesting
14A(1) A discretionary exclusion ground applies to a supplier if a decision-maker determines that the supplier or a connected person has been, or is, involved in—
(a) forced organ harvesting,
(b) unethical activities relating to human tissue, including anything which involves the commission of an offence under sections 32 (prohibition of commercial dealings in human material for transplantation), 32A (offences under section 32 committed outside UK) or 33 (restriction on transplants involving a live donor) of the Human Tissue Act 2004, or under sections 20 (prohibition of commercial dealings in parts of a human body for transplantation) or 20A (offences under section 20 committed outside UK) of the Human Tissue (Scotland) Act 2006, or
(c) dealing in any device or equipment or services relating to conduct mentioned in paragraphs (a) or (b).
(2) “Forced organ harvesting” means killing a person without their consent so that their organs may be removed and transplanted into another person.”
This amendment is designed to give a discretionary power to exclude suppliers from being awarded a public contract who have participated in forced organ harvesting or unethical activities relating to human tissue, including where they are involved in providing a service or goods relating to such activities.
Government amendment 59.
Alex Burghart
It is a genuine honour to take the Procurement Bill through Report stage. As the House will know, this is a major piece of post-Brexit legislation that enables us, for the first time in many decades, to reform our procurement system, to the benefit of contracting authorities, suppliers and taxpayers.
I begin with new clause 15 and amendment 52. We are inserting into the Bill a new clause that allows us to meet the UK’s international obligations on record keeping. We are strengthening record keeping obligations in the Bill to more fully reflect our obligations in both the agreement on Government procurement—the GPA—and the comprehensive and progressive agreement for trans-Pacific partnership. They both require records to be kept for a minimum of three years. New clause 15 sets out the obligation on contracting authorities to
“keep such records as the authority considers sufficient to explain a material decision made for the purpose of awarding or entering into a public contract.”
A material decision is one that requires a contracting authority
“to publish or provide a notice, document or other information in relation to the decision”,
or decisions, that are required to be made under the Bill. Records must be kept for three years from award of, or entry into, a contract—or, if the contract is awarded but not entered into, from the date of the decision not to enter into it.
The primary goal of the Bill is to streamline procurement regulations and ensure the overall efficiency of the system, while avoiding overwhelming businesses and contracting authorities with a multitude of rules and regulations—a point that we will no doubt return to this afternoon. As such, and in line with international requirements, the obligations attach only to the award of, and entry into, contracts; they do not apply to the management stage of a contract.
Information on the management of major contracts will of course be put into the public domain, thanks to the Bill’s considerable transparency obligations. That includes information on key performance indicators, such as performance against them; information on amendments to contracts; and information on contract termination, which will require reporting on performance. The time limit already in the Bill on the duty to maintain records of communications with suppliers is being relocated to sit alongside the new record keeping duty. The record keeping requirement is intended to act as a minimum; contracting authorities may of course keep records for longer, and indeed may be required to do so under other legislation.
Government amendments 24 and 25 change the point at which, under clause 52(1), contracting authorities are required to publish key performance indicators. They will no longer have to do so before entering into a public contract. Instead, there will be a requirement to publish them under proposed new subsection (2A) of clause 52. Clause 53, on contract details notices, provides that the details of KPIs will be specified in regulations under clause 95. That is because it is not possible to publish the KPIs before entering into the public contract, as they arise as part of the process of entering into the contract.
Government amendments 19, 20 and 56 make a necessary technical adjustment to ensure that the City of London Corporation is caught by the Bill in respect of its public sector functions, but not its commercial functions. The Bill is intended to apply to local authorities—clause 2 makes it clear that publicly funded bodies are caught by it—but due to its evolution and structure, the corporation does not operate solely as a local authority. It has significant private sector trading activities—for example, it operates private schools and undertakes property management—that are clearly not intended to be caught by the Bill. Unlike district and county councils, being a local authority is not the corporation’s raison d’être; rather, it has some local authority functions bolted on to its wider organisational functions. Without the amendments to clause 2 and schedule 2, there would be a risk of unintended consequences; the Bill would apply to either all the corporation’s activities, including its commercial activities, or none of them, depending on whether the corporation’s balance of income was derived mainly from its trading activities or from public funds in any one year.
Government amendments 21 to 23 resolve a drafting inconsistency between clause 19, which governs the award of contracts following a competitive procedure, and clause 43, which has rules allowing a contracting authority to switch to direct award if no suitable tender was received in a competition. Under clause 19, a tender may be disregarded in a competition if it breaches a procedural requirement set by the contracting authority—for example, if it is submitted late or is over its word count. Abnormally low tenders can also be disregarded, provided the tenderer has advance notification and the chance to respond, pursuant to subsections (4) and (5).
The changes proposed to clause 43 will ensure that only a material breach of procedural requirements will render a tender unsuitable: for example, being 10 words over the set count should not result in an unsuitable tender permitting direct award. Abnormally low tenders cannot be deemed unsuitable unless the supplier has had an opportunity to demonstrate that it will be able to perform the contract for the price offered, as is required under clause 19.
Moving on to amendment 59, paragraph 2(3) of schedule 10 inserts new section 14(5A) into the Defence Reform Act 2014. The DRA, and the Single Source Contract Regulations 2014 made under it, make provision for the pricing of defence contracts to procure goods, works and services that are not let competitively and meet the necessary criteria, including a financial threshold. New section 14(5A) is being introduced to address uncertainty about when an agreement for new goods, works and services should be regarded as an amendment to an existing contract within the scope of the DRA regime, and when it should be regarded as a new contract in its own right. The proposed new subsection currently addresses the situation by identifying two specific categories of existing contract not subject to the DRA regime that, when amended on a non-competed basis to add further goods, works or services, would become subject to that regime.
A third such category of contract not currently addressed by proposed section 14(5) has subsequently come to light. That category covers a single source contract that was below the financial threshold set by the SSCRs that is subsequently amended to add new goods, works and services that take it above that threshold. Amendment 59 will ensure that such contracts are brought within the regulation-making power. A hypothetical example would be a contract that was let competitively for £6 million a few years ago and was not subject to the regulations, where proposed section 14(5) and section 14(3)(b) —which excludes contracts let through competitions—did not apply, and a single source amendment was subsequently placed a few years later for £10 million of new work. That kind of amendment is referred to in section 14(5), and under the proposed new regulations, it would be treated as a new contract for the purposes of the regulations. Under the current wording of schedule 10, the agreement covering the new work would fall under the regulations.
Amendments 38, 32, 36, 37, 39 to 51, 57 and 58 significantly strengthen the exclusions and debarment provisions for exclusion on national security grounds. As the Bill stands, placing a supplier on the debarment list on national security grounds will make it excludable from all contracts within the scope of the Bill. That means that the supplier will be identified as posing a threat to the national security of the UK, but contracting authorities will have discretion as to whether they exclude the supplier in each particular procurement. Having engaged with colleagues in the House and reflected on their concerns, I can confirm that the Government are content to further strengthen those provisions. The new amendments will enable a Minister of the Crown to take a stronger approach in response to a specific risk profile of a particular supplier and make targeted decisions about whether the debarment should be mandatory for particular types of contracts, depending on the nature of the risk.