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Mandatory and discretionary exclusions for EU tenders

 

Grounds for mandatory exclusion

You will be excluded from the procurement process if there is evidence of convictions relating to specific criminal offences including, but not limited to, bribery, corruption, conspiracy, terrorism, fraud and money laundering, or if you have been the subject of a binding legal decision which found a breach of legal obligations to pay tax or social security obligations (except where this is disproportionate e.g. only minor amounts involved).

 

If a bidder is in breach of point 2.2 on the non-payment of taxes or social security contributions, and have not paid or entered into a binding arrangement to pay the full amount, you may still avoid exclusion if only minor tax or social security contributions are unpaid or if you have not yet had time to fulfil your obligations since learning of the exact amount due.  If your organisation is in that position please provide details using a separate Appendix. You may contact the university for advice before completing this form.

 

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Within the past five years, if your organisation (or any member of your proposed consortium, if applicable), Directors or partner or any other person who has powers of representation, decision or control has been convicted of any of the following offences

(a)  conspiracy within the meaning of section 1 or 1A of the Criminal Law Act 1977 or article 9 or 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 where that conspiracy relates to participation in a criminal organisation as defined in Article 2 of Council Framework Decision 2008/841/JHA on the fight against organised crime;

(b)  corruption within the meaning of section 1(2) of the Public Bodies Corrupt Practices Act 1889 or section 1 of the Prevention of Corruption Act 1906;

(c)  the common law offence of bribery;

(d)  bribery within the meaning of sections 1, 2 or 6 of the Bribery Act 2010; or section 113 of the Representation of the People Act 1983;

(e)  any of the following offences, where the offence relates to fraud affecting the European Communities’ financial interests as defined by Article 1 of the Convention on the protection of the financial interests of the European Communities:

(i) the offence of cheating the Revenue;

(ii) the offence of conspiracy to defraud;

(iii) fraud or theft within the meaning of the Theft Act 1968, the Theft Act (Northern Ireland) 1969, the Theft Act 1978 or the Theft (Northern Ireland) Order 1978;

(iv) fraudulent trading within the meaning of section 458 of the Companies Act 1985, article 451 of the Companies (Northern Ireland) Order 1986 or section 993 of the Companies Act 2006;

(v) fraudulent evasion within the meaning of section 170 of the Customs and Excise Management Act 1979 or section 72 of the Value Added Tax Act 1994;

(vi) an offence in connection with taxation in the European Union within the meaning of section 71 of the Criminal Justice Act 1993;

(vii)            destroying, defacing or concealing of documents or procuring the execution of a valuable security within the meaning of section 20 of the Theft Act 1968 or section 19 of the Theft Act (Northern Ireland) 1969;

(viii) fraud within the meaning of section 2, 3 or 4 of the Fraud Act 2006; or

(ix) the possession of articles for use in frauds within the meaning of section 6 of the Fraud Act 2006, or the making, adapting, supplying or offering to supply articles for use in frauds within the meaning of section 7 of that Act;

(f)   any offence listed—

(i)   in section 41 of the Counter Terrorism Act 2008; or

(ii)  in Schedule 2 to that Act where the court has determined that there is a terrorist connection;

(g)  any offence under sections 44 to 46 of the Serious Crime Act 2007 which relates to an offence covered by subparagraph (f);

(h)  money laundering within the meaning of sections 340(11) and 415 of the Proceeds of Crime Act 2002;

(i)    an offence in connection with the proceeds of criminal conduct within the meaning of section 93A, 93B or 93C of the Criminal Justice Act 1988 or article 45, 46 or 47 of the Proceeds of Crime (Northern Ireland) Order 1996;

(j)    an offence under section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004;

(k)  an offence under section 59A of the Sexual Offences Act 2003;

(l)    an offence under section 71 of the Coroners and Justice Act 2009

(m) an offence in connection with the proceeds of drug trafficking within the meaning of section 49, 50 or 51 of the Drug Trafficking Act 1994; or

(n)  any other offence within the meaning of Article 57(1) of the Public Contracts Directive—

(i)   as defined by the law of any jurisdiction outside England and Wales and Northern Ireland; or

(ii)  created, after the day on which these Regulations were made, in the law of England and Wales or Northern Ireland.

 

Non-payment of taxes

If it has been established by a judicial or administrative decision having final and binding effect in accordance with the legal provisions of any part of the United Kingdom or the legal provisions of the country in which your organisation is established (if outside the UK), that your organisation is in breach of obligations related to the payment of tax or social security contributions?

 


Grounds for discretionary exclusion – Part 1

The university may exclude any Supplier who has breached any of the following situations set out in paragraphs (a) to (i);

 

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If within the past three years, any of the following situations have applied, or currently apply, to your organisation.

(a)  your organisation has violated applicable obligations referred to in regulation 56 (2) of the Public Contracts Regulations 2015 in the fields of environmental, social and labour law established by EU law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to the Public Contracts Directive as amended from time to time;

(b)  your organisation is bankrupt or is the subject of insolvency or winding-up proceedings, where your assets are being administered by a liquidator or by the court, where it is in an arrangement with creditors, where its business activities are suspended or it is in any analogous situation arising from a similar procedure under the laws and regulations of any State;

(c)  your organisation is guilty of grave professional misconduct,  which renders its integrity questionable;

(d)  your organisation has entered into agreements with other economic operators aimed at distorting competition;

(e)  your organisation has a conflict of interest within the meaning of regulation 24 of the Public Contracts Regulations 2015 that cannot be effectively remedied by other, less intrusive, measures;

(f)   the prior involvement of your organisation in the preparation of the procurement procedure has resulted in a distortion of competition, as referred to in regulation 41, that cannot be remedied by other, less intrusive, measures;

(g)  your organisation has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity, or a prior concession contract, which led to early termination of that prior contract, damages or other comparable sanctions;

(h)  your organisation—

(i)         has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria; or

(ii)        has withheld such information or is not able to submit supporting documents required under regulation 59 of the Public Contracts Regulations 2015; or

(i) your organisation has undertaken to

(aa)      unduly influence the decision-making process of the contracting university, or

(bb)      obtain confidential information that may confer upon your organisation undue advantages in the procurement procedure; or

       (j)  your organisation has negligently provided misleading information that may have a material influence on decisions concerning exclusion, selection or award.

 

Conflicts of interest

 

In accordance with point 3.1 (e), the university may exclude the Supplier if there is a conflict of interest which cannot be effectively remedied. The concept of a conflict of interest includes any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure.

 

Where there is any indication that a conflict of interest exists or may arise then it is the responsibility of the Supplier to inform the university, detailing the conflict in a separate Appendix. Provided that it has been carried out in a transparent manner, routine pre-market engagement carried out by the university should not represent a conflict of interest for the Supplier.

 

Taking Account of Bidders’ Past Performance

 

In accordance with point (g), the university may assess the past performance of a Supplier (through a Certificate of Performance provided by a Customer or other means of evidence). The university may take into account any failure to discharge obligations under the previous principal relevant contracts of the Supplier. The university may also assess whether specified minimum standards for reliability for such contracts are met.

 

In addition, the university may re-assess reliability based on past performance at key stages in the procurement process (i.e. Supplier selection, tender evaluation, contract award stage etc.). Suppliers may also be asked to update the evidence they provide in this section to reflect more recent performance on new or existing contracts (or to confirm that nothing has changed).

 

‘Self-cleaning’

 

Any Supplier is in breach of points 2.1, 2.2 and 3.1 they should provide sufficient evidence, in a separate Appendix, that provides a summary of the circumstances and any remedial action that has taken place subsequently and effectively “self cleans” the situation referred to in that question. The Supplier has to demonstrate it has taken such remedial action, to the satisfaction of the university in each case. 

 

If such evidence is considered by the university (whose decision will be final) as sufficient, the economic operator concerned shall be allowed to continue in the procurement process.

 

In order for the evidence referred to above to be sufficient, the Supplier shall, as a minimum, prove that it has;

●     paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct;

●     clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities; and

●     taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.

 

The measures taken by the Supplier shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the measures are considered by the university to be insufficient, the Supplier shall be given a statement of the reasons for that decision.

 

4. Grounds for discretionary exclusion – Part 2

 

The university reserves the right to use its discretion to exclude a Supplier where it can demonstrate the Supplier’s non-payment of taxes/social security contributions where no binding legal decision has been taken.

 

Please note that Section 4 relating to tax compliance only applies where the university has indicated that the contract is over £5million in value, and the university is a Central Government Department (including their Executive Agencies and Non-Departmental Public Bodies).

 

“Occasion of Tax Non-Compliance” means:

 

(a)  any tax return of the Supplier submitted to a Relevant Tax University on or after 1 October 2012 is found to be incorrect as a result of:

 

1.    a Relevant Tax University successfully challenging the Supplier under the General Anti-Abuse Rule or the Halifax Abuse Principle or under any tax rules or legislation that have an effect equivalent or similar to the General Anti-Abuse Rule or the Halifax Abuse Principle;

2.    the failure of an avoidance scheme which the Supplier was involved in, and which was, or should have been, notified to a Relevant Tax University under the DOTAS or any equivalent or similar regime; and/or

 

(b)  the Supplier’s tax affairs give rise on or after 1 April 2013 to a criminal conviction in any jurisdiction for tax related offences which is not spent at the Effective Date or to a penalty for civil fraud or evasion

 

 

4.1

Given rise to a criminal conviction for tax related offences which is unspent, or to a civil penalty for fraud or evasion;

4.2

Been found to be incorrect as a result of:

▪     HMRC successfully challenging it under the General Anti-Abuse Rule (GAAR) or the “Halifax” abuse principle; or

▪     A Tax University in a jurisdiction in which the legal entity is established successfully challenging it  under any tax rules or legislation that have an effect equivalent or similar to the GAAR or the “Halifax” abuse principle; or

▪     the failure of an avoidance scheme which the Supplier was involved in and which was, or should have been, notified under the Disclosure of Tax Avoidance Scheme (DOTAS) or any equivalent or similar regime in a jurisdiction in which the Supplier is established.