HAARVIG v. NORWAY
If a relevant authority proposes to procure or make arrangements for procuring the provision of services, or the provision of services together with the purchase or hire of goods or the carrying out of works, by— it must comply with the requirements in subsections (3), (6) and (7) before starting the process of procurement.
entering into a public services contract that is not a contract based on a framework, or
concluding a framework as regards which public services contracts are likely to constitute the greater part by value of the contracts based on the framework,
The authority is to be treated for the purposes of subsection (1) as having started the process of procurement as regards what is proposed to be procured as soon as it takes whichever of the following steps is the first to occur—
publishing a notice under the Procurement Act 2023 for the purpose of inviting tenders, requests to be selected to tender or to negotiate or requests to participate in relation to a public services contract or framework relating to what is proposed to be procured;
publishing an advertisement seeking offers or expressions of interest in relation to such a contract or framework;
contacting a person in order to seek an offer or expression of interest in relation to such a contract or framework;
contacting a person in order to respond to an unsolicited offer or expression of interest in relation to such a contract or framework;
entering into such a contract or concluding such a framework.
The authority must consider—
how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and
how, in conducting the process of procurement, it might act with a view to securing that improvement.
In subsection (3) “the relevant area” means the area consisting of the area or areas of the one or more relevant authorities on whose behalf a public services contract is, or contracts based on a framework are, intended to be made.
For the purposes of subsection (4) the area of a relevant authority is an area consisting of the area or areas by reference to which the authority primarily exercises its functions, disregarding any areas outside the United Kingdom.
The authority must consider under subsection (3)(b) only matters that are relevant to what is proposed to be procured and, in doing so, must consider the extent to which it is proportionate in all the circumstances to take those matters into account.
The authority must consider whether to undertake any consultation as to the matters that fall to be considered under subsection (3).
If an urgent need to arrange the procurement in question makes it impractical to comply with the requirements in subsections (3), (6) and (7) before the time indicated by subsection (1), a relevant authority may disregard the requirements to the extent that it is not practical to comply with them.
Subsection (8) does not apply to the extent that the time available is reduced by undue delay on the part of the authority after this section has come into force.
Failure to comply with subsection (1), (3), (6) or (7) does not affect the validity of anything done in order to comply with the Procurement Act 2023.
The following are not required to comply with subsections (1), (3), (6) and (7)—
the Welsh Ministers;
the First Minister for Wales;
the Counsel General to the Welsh Assembly Government;
the National Assembly for Wales Commission;
a relevant authority whose functions are wholly or mainly Welsh devolved functions.
For the purposes of subsection (11) a function of a relevant authority is a Welsh devolved function if—
provision conferring or imposing that function upon the authority is within the legislative competence of the National Assembly for Wales, or
provision conferring or imposing that function upon the authority is made by the Welsh Ministers.
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If anything done before the commencement of this section would to any extent have satisfied the requirements in subsections (1), (3), (6) and (7) if done after that commencement, the requirements are to that extent to be treated as satisfied.
In this section—
“framework agreement” has the same meaning as in the Regulations, and a reference to a contract based on a framework agreement is a reference to a contract entered into on terms established by such an arrangement;
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“public services contract” has the same meaning as in the Regulations (and includes a contract that is treated as being a public services contract by the Regulations);
“relevant authority” means a person or body that is a contracting authority within the meaning of the Procurement Act 2023 (see section 2 of that Act) (whether or not the Act applies).
“the Regulations” means the Public Contracts Regulations 2006 (S.I. 2006/5), or any regulations replacing those regulations, as from time to time amended;
“defence and security contract” has the same meaning as in the Procurement Act 2023 (see section 7 of that Act);
“exempted contract” is a contract that would be considered an exempted contract for the purposes of Schedule 2 (exempted contracts) to the Procurement Act 2023 (even though that Act does not apply);
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For the purposes of this section references to a public services contract are to—
a public contract for the supply of services to which the Procurement Act 2023 applies (or which is treated as such a contract by that Act), other than a utilities contract, defence and security contract or concession contract;
a contract, not being a contract within paragraph (a), which—
is a light touch contract,
is not an exempted contract, a utilities contract, a defence and security contract or a concession contract, and
falls within subsection (17).
A contract falls within this subsection if—
it is awarded by a central government authority and is estimated to be of a value equal to or greater than the threshold amount mentioned in row 11 of the table in paragraph 1(1) of Schedule 1 to the Procurement Act 2023, or
it is awarded by a sub-central government authority and is estimated to be of a value equal to or greater than the threshold amount mentioned in row 12 of that table.
In section 17 of the Local Government Act 1988 (exclusion of non-commercial considerations in the case of local and other public authority contracts), after subsection (10) insert—
There is to be paid out of money provided by Parliament any expenditure incurred in consequence of this Act by a Minister of the Crown, government department or other public authority.
This Act may be cited as the Public Services (Social Value) Act 2012.
Section 3 and this section come into force on the day on which this Act is passed.
Sections 1 and 2 come into force on such day as a Minister of the Crown may by order made by statutory instrument appoint.
This Act extends to England and Wales.