PPN 04/21 (PCR 2015)
Applying exclusions in public procurement, managing conflicts of interest and whistleblowing
In: Procure > Finalise and publish procurement pack
Overview
This PPN applies to all central government departments, their executive agencies and non-departmental public bodies (collectively referred to as ‘in-scope organisations’) in conducting procurement procedures regulated by the Public Contracts Regulations 2015 (PCR 2015), the Utilities Contracts Regulations 2016 and the Concession Contracts Regulations 2016. It is also relevant to the wider public sector such as local authorities and NHS bodies in carrying out procurement for public contracts, utilities and concessions contracts.
This PPN provides guidance on how to apply the grounds for exclusion of suppliers from public procurement procedures.
The guidance accompanying the PPN provides in-scope organisations with relevant information, advice and direction to support activities relating to the application of exclusions in public procurement (Section 1); and the prevention, identification and remedy of conflicts of interest in a commercial context (Section 2). In addition, the Civil Service Code provides a framework for the process to be followed (‘whistleblowing’) by civil servants who are concerned about any perceived wrongdoing in a procurement procedure (Section 3).
Objective at this commercial stage
Appropriate measures should be taken to ensure that competition is not distorted by a bidder who has acted in an advisory capacity to the contracting authority either in the context of preliminary market consultations or in the preparation of the procurement procedure.
Conflicts of interest should be continuously monitored and managed during the commercial lifecycle of the contract. Measures taken to address any identified conflicts of interest should be documented in writing and included in the procurement report, as required by regulation 84(1)(i) PCR 2015 (reporting and documentation requirements).
Key considerations at this commercial stage
In-scope organisations should:
- ensure that, where a bidder has acted in an advisory capacity in the context of preliminary market consultations or in the preparation of the procurement procedure, appropriate measures are taken to avoid any distortion of competition and ensure equal treatment of all bidders and suppliers:
- this must include communicating to other bidders any relevant information exchanged in the context of, or resulting from the involvement of, a bidder in the preparation for the procurement process and setting adequate time limits
- ensure that any measures taken to remedy conflicts of interest are recorded in the procurement report required by regulation 84 PCR 2015
- request bidders to complete the Standard Selection Questionnaire (SQ) to self-declare their status against the exclusion grounds. This reduces the burden on bidders providing evidence that the exclusion grounds do not apply and aligns with the process required by the PCR 2015 for the Single Procurement Document (SPD).
Legal framework
The PPN should be read alongside the relevant parts of the legal framework, including but not limited to, the following provisions of the Public Contracts Regulations 2015 (which may be particularly relevant to the consideration of this PPN):
- Regulation 24: Conflicts of interest
- Regulation 41: Prior involvement of candidates or tenderers
- Regulation 57: Exclusion grounds
- Regulation 59: Single Procurement Document
- Regulation 60: Means of proof
- Regulation 63: Reliance on the capacities of other entities
- Regulation 84: Reporting and documentation requirements
Additional support and guidance
Make sure you:
- read the PPN and any supporting implementation guidance
- seek legal and commercial advice in the context of specific procurements
