Baroness Neville-Rolfe:

Moved by Baroness Neville-Rolfe

That the House do agree with the Commons in their Amendments 26 to 46.

26: Clause 58, page 39, line 40, after “are” insert “continuing or”

27: Clause 58, page 40, line 5, after “circumstances” insert “continuing or”

28: Clause 59, page 40, line 43, leave out “on the basis” and insert “—(i) under section 57(1)(a) or (2)(a) by virtue”

29: Clause 59, page 40, line 44, at end insert “, or“(ii) on the basis of being on the debarment list by virtue of paragraph 34A of Schedule 6 (threat to national security).”

30: Clause 60, page 41, line 29, after “may” insert “, for the purpose of considering whether an entry could be added to the debarment list in respect of a supplier,”

31: Clause 60, page 41, line 32, at end insert—“(1A) A Minister of the Crown must—(a) have regard to the fact that contracting authorities may be unknowingly awarding public contracts to suppliers that—(i) could be excludable suppliers by virtue of paragraph 14 of Schedule 7 (threat to national security), or(ii) are sub-contracting to suppliers that could be excludable suppliers by virtue of that paragraph, and(b) in light of that fact, keep under review whether particular suppliers or sub-contractors should be investigated under this section.”

32: Clause 60, page 41, line 33, leave out subsection (2)

33: Clause 61, page 42, line 36, leave out from “out” to end of line 45 and insert—“whether the Minister is satisfied that the supplier is, by virtue of a relevant exclusion ground, an excluded or excludable supplier, and if the Minister is so satisfied—(a) in respect of each applicable relevant exclusion ground— (i) whether it is a mandatory or discretionary ground, (ii) the date on which the Minister expects the ground to cease to apply (see paragraph 43 of Schedule 6 and paragraph 16 of Schedule 7), and(iii) whether the Minister intends to make an entry to the debarment list,(b) in respect of the exclusion ground in paragraph 34A of Schedule 6 (if applicable), the description of contracts in relation to which the Minister—(i) is satisfied the ground applies, and(ii) intends to refer to in a relevant entry in the debarment list, and”

34: Clause 62, page 43, line 30, leave out from “section” to end of line 39 and insert “and, as part of that entry, must include the relevant debarment information.(3A) In this section, the “relevant debarment information” means—(a) the exclusion ground to which the entry relates;(b) whether the exclusion ground is mandatory or discretionary;(c) in the case of an entry made on the basis of paragraph 34A of Schedule 6 (threat to national security), a description of the contracts in relation to which the supplier is to be an excluded supplier;(d) the date on which the Minister expects the exclusion ground to cease to apply (see paragraph 43 of Schedule 6 and paragraph 15 of Schedule 7).”

35: Clause 62, page 43, line 43, leave out “section (Debarment decisions: appeals)” and insert “sections 63 to section (Debarment decisions: appeals)”

36: Clause 62, page 43, line 44, at end insert—“(5A) The Minister may not enter a supplier’s name on the debarment list before the end of the period of eight working days beginning with the day on which the Minister gives notice to the supplier in accordance with subsection (5) (the “debarment standstill period”).(5B) The Minister may not enter a supplier’s name on the debarment list if—(a) during the debarment standstill period—(i) proceedings under section (Debarment decisions: interim relief)(1) (interim relief) are commenced, and(ii) the Minister is notified of that fact, and(b) the proceedings have not been determined, discontinued or otherwise disposed of.”

37: Clause 62, page 44, line 1, leave out from “review” to end of line 5 and insert—“(b) may remove an entry from the debarment list, (c) in the case of an entry added on the basis of paragraph 34A of Schedule 6 (threat to national security), may revise an entry to remove a description of contracts, and(d) may revise a date indicated under subsection (3A)(d).(7) If a Minister of the Crown voluntarily removes or revises an entry in connection with proceedings under section (Debarment decisions: appeals), a Minister of the Crown may reinstate the entry only after the proceedings have been determined, discontinued or otherwise disposed of.(7A) A Minister of the Crown must—(a) remove an entry if the Minister is satisfied that the supplier is not an excluded or excludable supplier by virtue of the ground stated in the entry, and(b) in the case of an entry added on the basis of paragraph 34A of Schedule 6 (threat to national security), revise the entry to remove a description of contracts if the Minister is satisfied the exclusion ground in that paragraph does not apply in relation to contracts of that description.”

38: Clause 62, page 44, line 11, leave out “an entry from the debarment list” and insert “or revising an entry”

39: After Clause 62, insert the following new Clause— “Debarment decisions: interim relief(1) A supplier may apply to the court for suspension of the Minister’s decision to enter the supplier’s name on the debarment list.(2) Proceedings under subsection (1) must be brought during the debarment standstill period.(3) The court may make an order to—(a) suspend the Minister’s decision to enter the supplier’s name on the debarment list until—(i) the period referred to in subsection (3)(b) of section (Debarment decisions: appeals) ends without proceedings having been brought, or(ii) proceedings under that section are determined, discontinued or otherwise disposed of, and(b) if relevant, require that an entry in respect of the supplier be temporarily removed from the debarment list.(4) In considering whether to make an order under subsection (3), the court must have regard to—(a) the public interest in, among other things, ensuring that public contracts are not awarded to suppliers that pose a risk,(b) the interest of the supplier, including in relation to the likely financial impact of not suspending the decision, and(c) any other matters that the court considers appropriate.(5) In this section—“the court” means—(a) in England and Wales, the High Court,(b) in Northern Ireland, the High Court, and(c) in Scotland, the Court of Session;“debarment standstill period” has the meaning given in section 62(debarment list).”

40: Clause 63, page 44, line 16, leave out from “for” to end of line 17 and insert “the removal or revision of an entry made on the debarment list in respect of the supplier.”

41: Clause 63, page 44, line 21, leave out from “since” to “, or” and insert “the entry was made or, where relevant, revised”

42: Clause 63, page 44, line 23, after “subsection (1)” insert “in relation to the entry or, where relevant, revision”

43: Clause 63, page 44, line 26, at end insert—“(3) After considering an application under subsection (1), the Minister must—(a) notify the supplier of the Minister’s decision, and(b) give reasons for the decision.”

44: After Clause 63, insert the following new Clause— “Debarment decisions: appeals (1) A supplier may appeal to the court against a decision of a Minister of the Crown—(a) to enter the supplier’s name on the debarment list,(b) to indicate contracts of a particular description as part of an entry made in respect of the supplier on the basis of paragraph 34A of Schedule 6 (threat to national security),(c) to indicate a particular date as part of an entry in respect of the supplier under section 62(3A)(d), or(d) not to remove or revise an entry made in respect of the supplier, following an application under section (63).(2) Proceedings under subsection (1)—(a) may only be brought by a United Kingdom supplier or a treaty state supplier,(b) may only be brought on the grounds that, in making the decision, the Minister made a material mistake of law, and(c) must be commenced before the end of the period of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the Minister’s decision. (3) Subsection (4) applies if, in proceedings under subsection (1)(a) or (b), the court is satisfied that—(a) the Minister made a material mistake of law, and(b) in consequence of the mistake, a contracting authority excluded the supplier from participating in a competitive tendering procedure, or other selection process, in reliance on section 57(1)(b) or (2)(b).(4) The court may make one or more of the following orders—(a) an order setting aside the Minister’s decision;(b) an order to compensate the supplier for any costs incurred by the supplier in relation to participating in the procedure or process referred to in subsection (3)(b).(5) Otherwise, if the court is satisfied that the Minister made a material mistake of law, the court may make an order setting aside the Minister’s decision.(6) In this section—“the court” has the meaning given in section (Debarment decisions: interim relief) (interim relief);the reference to a supplier being excluded includes a reference to—(a) the supplier’s tender being disregarded under section 26;(b) the supplier becoming an excluded supplier for the purposes of section 41(1)(a), 43(1) or 45(6)(a).”

45: Clause 64, page 44, line 27, leave out Clause 64

46: After Clause 64, insert the following new Clause—“Debarment proceedings and closed material procedurePart 2 of the Justice and Security Act 2013 (disclosure of sensitive material) applies in relation to proceedings under sections (Debarment decisions: interim relief)(1) (interim relief) and 64 (appeals) as if, in each of the following provisions, each reference to the Secretary of State included a reference to the Minister for the Cabinet Office—(a) section 6(2)(a), (7) and (9)(a) and (c);(b) section 7(4)(a);(c) section 8(1)(a);(d) section 11(3);(e) section 12(2)(a) and (b).”

Motion agreed.