Procurement Bill [HL] - Commons Amendments – in the House of Lords at 7:15 pm on 11 September 2023.
Baroness Neville-Rolfe:
Moved by Baroness Neville-Rolfe
That the House do agree with the Commons in their Amendments 48 to 80.
48: Clause 66, page 45, line 30, at end insert—“(5A) The implied term does not prevent a contracting authority— (a) requiring the use of a particular system in relation to electronic invoices;(b) in the case of a defence authority (as defined in section 7(5)), requiring the use of a system that requires the payment of fees by the supplier.”
49: Clause 67, page 46, line 33, at end insert—“(za) “electronic invoice” and “required electronic form” have the meanings given in section 66(3);”
50: Clause 67, page 46, line 36, after “address” insert “, or through an electronic invoicing system,”
51: Clause 68, page 47, line 18, at end insert “, or(d) in relation to a concession contract.”
52: Clause 74, page 51, line 5, leave out paragraph (c)
53: Clause 76, page 51, line 40, after “modification” insert “—(a) in respect of which the contracting authority is required to publish a contract change notice under section 74, and”
54: Clause 76, page 51, line 43, leave out paragraphs (a) to (c)
55: Clause 76, page 52, line 3, leave out “or a transferred Northern Ireland authority”
56: Clause 76, page 52, line 7, leave out “or a transferred Northern Ireland procurement arrangement”
57: Clause 78, page 53, line 43, at end insert—(1) A relevant contracting authority may not terminate a contract by reference to the implied term in section 77 on the basis of the mandatory exclusion ground in paragraph 34A of Schedule 6 (threat to national security) unless the authority has notified a Minister of the Crown of its intention.”
58: Clause 90, page 60, line 32, at end insert—(1A) Regulations under subsection (1) may only include provision that is equivalent to provision in—(a) subsection (1), (2), (5) or (6) of section 88 (treaty state suppliers),(b) section 89 (treaty state suppliers: non-discrimination), or(c) Schedule 9 (specified international agreements).(1B) Regulations under subsection (1) may not be made unless a Minister of the Crown considers, or the Scottish Ministers consider, that the regulations are necessary in order to ratify or comply with an international agreement to which the United Kingdom is a signatory.(1C) In subsection (1B), the reference to being a signatory to an international agreement includes a reference to having—(a) exchanged instruments, where the exchange constitutes the agreement;(b) acceded to the agreement.”
59: Clause 90, page 60, line 34, at end insert—“(b) a reference to discrimination is a reference to discrimination as defined in section 89.”
60: After Clause 90, insert the following new Clause—“Trade disputes(1) This section applies where there is, or has been, a dispute relating to procurement between the United Kingdom and another state, territory or organisation of states or territories in relation to an international agreement specified in Schedule 9.(2) An appropriate authority or the Scottish Ministers may by regulations make such provision relating to procurement as the authority considers, or the Scottish Ministers consider, appropriate in consequence of the dispute.(3) Any provision made by the Scottish Ministers under subsection (2) must relate to procurement—(a) carried out by devolved Scottish authorities, or(b) under devolved Scottish procurement arrangements. (4) Regulations under this section may include provision modifying primary legislation, whenever passed (including this Act). (5) In subsection (1), the reference to an international agreement specified in Schedule 9 does not include a reference to the Trade and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland, of the one part, and the European Union and the European Atomic Energy Community, of the other part, signed at Brussels and London on
61: Clause 94, page 62, line 37, after first “a” insert “covered”
62: Clause 94, page 62, line 42, at end insert—“(2A) Subsection (2)(a) does not apply in relation to an electronic communications system used, or required to be used—(a) after the award of the public contract, or(b) in relation to a utilities dynamic market.”
63: Clause 94, page 63, line 1, leave out “Subsection (1)” and insert “This section”
64: Clause 94, page 63, line 2, after “communication” insert “, or the use of an electronic communication system meeting the requirements of subsection (2),”
65: Clause 95, page 63, line 13, leave out subsection (3)
66: After Clause 95, insert the following new Clause—“Record-keeping(1) A contracting authority must 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.(2) For the purposes of subsection (1), a decision is “material” if, under this Act, a contracting authority is required—(a) to publish or provide a notice, document or other information in relation to the decision, or (b) to make the decision.(3) A contracting authority must keep records of any communication between the authority and a supplier that is made—(a) in relation to the award or entry into of a public contract, and (b) before the contract is entered into.(4) A record under this section must be kept until—(a) the day on which the contracting authority gives notice of a decision not to award the contract (see section 55), or(b) the end of the period of three years beginning with the day on which the contract is entered into or, if the contract is awarded but not entered into, awarded.(5) This section does not apply in relation to defence and security contracts.(6) This section does not affect any other obligation under any enactment or rule of law by virtue of which a contracting authority must retain documents or keep records, including for a longer period.”
67: Clause 97, page 64, line 6, at end insert—“(6A) A supplier may not bring proceedings under this Part on the grounds that one or more of the following decisions of a Minister of the Crown was unlawful—(a) a decision to enter a supplier’s name on the debarment list;(b) a decision relating to the information included in an entry on the debarment list;(c) a decision not to remove an entry from the debarment list, or revise information included in such an entry,(see section (Debarment decisions: appeals)).”
68: After Clause 103, insert the following new Clause—“Part 9 proceedings and closed material procedurePart 2 of the Justice and Security Act 2013 (disclosure of sensitive material) applies in relation to proceedings under this Part 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).”
69: Clause 107, page 70, line 3, leave out “only” and insert “wholly or mainly”
70: Clause 107, page 70, line 12, leave out paragraph (b)
71: Clause 107, page 70, line 14, after “section” insert “and section 123 (commencement)”
72: Clause 107, page 70, line 16, at end insert—“(4A) Subsection (1) does not apply in relation to a power under sections 59 to 66 (Debarment proceedings and closed material procedure).”
73: Clause 108, page 71, line 3, at end insert—“(5) Subsection (1) does not apply in relation to a power under sections 59 to 66 (Debarment proceedings and closed material procedure).”
74: Clause 109, page 71, line 12, after “section 66” insert “or section 121”
75: Clause 109, page 71, line 30, at end insert—“(za) sections 59 to 66 (Debarment proceedings and closed material procedure);”
76: Clause 109, page 71, line 32, at end insert—“(ba) section (Trade disputes) (trade disputes);”
77: Clause 111, page 73, line 4, leave out “A Minister of the Crown or”
78: Clause 111, page 73, line 5, leave out from “of” to end of line 7 and insert—“(a) applying it in relation to procurement carried out by contracting authorities under devolved Scottish procurement arrangements;(a) disapplying it in relation to procurement carried out by devolved Scottish authorities under—(i) reserved procurement arrangements,(ii) devolved Welsh procurement arrangements, or(iii) transferred Northern Ireland procurement arrangements.”
79: Clause 111, page 73, line 8, at end insert—“(za) the Procurement Reform (Scotland) Act 2014 (asp 12),”
80: Clause 111, page 73, line 13, leave out “those regulations” and insert “that legislation”
Motion agreed.
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