A contracting authority can, and sometimes must, exclude a bidder from tendering for public contracts where they fall within a ground for exclusion, for example: conviction by final judgement of a criminal offence such as corruption, bribery, money laundering or fraud, etc., child labour and other forms of trafficking in human beings, breach of tax and social security obligations, breach of any obligations in the fields of environmental, social or labour law (these obligations include any relevant national law, as well as relevant collective agreements and specific international agreements), or grave professional misconduct which renders the economic operator's integrity questionable.
It must be noted that time limits apply to exclusion grounds, these are 5 years from the date of conviction in relation to one of the specified criminal offences, 3 years from the date of the relevant event in other circumstances. Where the exclusion is based on a finding that a bidder has failed to pay tax or social security contributions, the exclusions lasts until such time as it has either paid or entered into a binding agreement to pay all contributions due, including any applicable fines and interest – or until the contributions are otherwise no longer due.
Where a contracting authority decides that there may be a risk of exclusion grounds applying to a subcontractor, they can choose to verify this at any stage in the procurement process. This can be an effective way to help ensure a robust approach is taken to criminal activity throughout the supply chain. A contracting authority should only ask for verification of exclusion grounds from sub-contractors in circumstances where it is regarded as proportionate and necessary to do so. A full list of the exclusion grounds can be found in the Procurement Journey.
Contracting authorities should include the relevant exclusion grounds statement from the standardised statement document in the Contract Notice at II.2.14 Additional Information. A contracting authority can provide more information about specific exclusion grounds in Section II.2.14 Additional information of the Contract Notice.
If a bidder is in a situation which might result in its exclusion due to breach of any of the exclusion grounds, it must be given the opportunity to provide evidence to show that it has taken remedial action to demonstrate its reliability, this is known as self-cleansing. For this purpose the bidder must prove that it has:
The contracting authority must not exclude the bidder on those grounds if they are satisfied that the evidence provided is sufficient to demonstrate their reliability.
It is for a contracting authority to consider all relevant factors, when forming a view of whether the measures taken are sufficient to demonstrate the reliability of the tenderer. In doing so it is important to take into account the gravity and particular circumstances of the criminal offence or misconduct. This will be particularly important where it has been identified that security and crime risks are to be addressed in the procurement process.
Selection criteria applied to individual procurement processes must be relevant and proportionate to the subject matter of the contract. When selecting suppliers, it is essential to assess the technical capabilities that will be required for the products or services you are procuring to meet your needs. Not only is this useful from the buyer's point of view, as suppliers that can clearly not meet the requirement will be eliminated, but it is also useful for the suppliers as they have a very clear understanding of the importance of crime prevention and what will be essential for their tender to be successful.
Any selection criteria deemed appropriate must be tested through the Single Procurement Document (SPD). For example, it may be appropriate to require bidders to demonstrate their financial and economic standing i.e. robust requirements in respect of cash-flow and full financial statements or other relevant information. This can be done at Part IV: Selection criteria, Section 4B of the SPD.
It may be appropriate to require bidders to have relevant quality assurance, or environmental management systems or accreditation in place, for example, ISO 27001: Information Security Management or ISO 28000:2022: Security and resilience - Security management systems, IASME Gold, PAS402 and Green Compass certification, etc. This can be done at Part IV: Selection criteria, Section 4D of the SPD).
The Annex includes examples of wording that may be used for this purpose.
It may be proportionate to seek final clarification and confirmation of information supplied as part of selection criteria through the SPD, and where appropriate, this could be done through site visits.
