A contracting authority can exclude a bidder from tendering for public contracts where they fall within a ground for exclusion, for example breach of any obligations in the fields of environmental, social or labour law. These obligations include any relevant national and European law, as well as relevant collective agreements and specific international agreements, and for example would include obligations under the Equality Act 2010. A list of the relevant international social and environmental conventions are available from Annex X (page 159) of Directive 2014/24/EU.
Where a contracting authority decides that there may be a risk of exclusion grounds applying to a sub-contractor, 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 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.
It is mandatory that the relevant exclusion grounds statement from the standardised statement document is included 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 OJEU contract notice.
It is possible to clarify what bidders should consider when responding to the questions in respect of environmental, social or labour law. For example:
‘Economic operators may be excluded from this competition if they are in any of the situations referred to in regulation 58 of the Public Contracts (Scotland) Regulations 2015.’
‘Bidders will be required to adhere to, and fulfil all obligations relevant under the Equality Act 2010, and The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017.’
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-cleaning.
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. For example, consideration of the nature and gravity of liability in discrimination claims or breaches of national laws about equal treatment of workers, when it took place, and the degree of relevance to the subject of the contract.
It is possible to exclude a bidder who has had a complaint upheld against them unless they can show they are taking steps to remedy the issue.
Any selection criteria deemed appropriate in respect of the technical and professional ability of bidders must be tested through the format of the European Single Procurement Document (ESPD).
For example, it might be appropriate to require compliance with relevant UK access standards such as BSI 830015 or equivalent in relation to building construction, this could be done in the quality assurance schemes and environmental management standards section of the ESPD part 4D.
Or it may be appropriate to require bidders to demonstrate their experience of eliminating discrimination and promoting equality in their practices in performing similar contracts, this could be worked into the experience related sections of the ESPD parts 4C.1 or 4C.1.2.
‘In answering question 4C.1.2 please describe your experience of eliminating discrimination and promoting equality in both your own practices and those of your sub-contractors, including details of any specific steps taken in the design of services to increase opportunities to deliver the types of requirements detailed in II.2.4 in the OJEU contract notice or the relevant section of the site notice.’