Following publication of Policy Note 01/22, the National Procurement Hub has worked with our legal advisers DLA Piper to develop the following optional wording to enable Authorities to align to the Policy Note and associated Government sanctions introduced to cut ties with Russian organisations.
The following is therefore available to use at your discretion:
Optional Supplier Questionnaire / tender discretionary exclusion rights. If you are using the Crown Commercial Service standard SQ template, please insert the following within Section 1, as a new point 1.2(b) (iii):
Do you or any entity within your supply chain have any links to or involvement with persons or entities in Russia or Belarus, whether this is directly linked to the provision of the goods and services under this procurement or otherwise. If so, please confirm (i) the nature of such interest or involvement – please note the authority reserves the right to obtain any further information from the Bidder in this respect; (2) whether you or a relevant entity in your supply chain is in compliance with applicable Russia and Belarus sanctions regimes implemented by the UK and other international governments.
Based on the information provided by the supplier in response to the question above, the Authority reserves the right to exclude any suppliers at selection questionnaire stage where:
- the supplier confirms that it or an entity in its supply chain is not in compliance with any applicable Russia and Belarus sanctions regimes implemented by the UK and other international governments; and/or
- in the reasonable opinion of the authority, the authority considers that contracting with the supplier would bring the authority into disrepute and/or which is likely to cause reputational damage to the authority and/or diminish the trust that the public places in the authority and/or would not be aligned to or would undermine the values of the authority; and/or
- in the reasonable opinion of the authority, the authority considers that contracting with the supplier could give rise to potential national security concerns which could place the authority’s data, systems, premises, infrastructure (and in turn the services it provides to the public) at risk.
Suggested contractual provision;
- The Supplier must provide the Deliverables that comply with Law. The terms should also include a clause that states that the Supplier would indemnify the Authority against any costs resulting from any Default by the Supplier relating to any applicable Law. The Authority should also ensure that it has rights to terminate if there is any material Default of the Contract which would capture breach of obligations to comply with Law. (This would cover bullet point 1 under the procurement section above).
- Suggested definition of ‘Law’: “Law” means any law, subordinate legislation within the meaning of Section 21(1) of the Interpretation Act 1978, bye-law, enforceable right, regulation, order, regulatory policy, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements with which the Supplier is bound to comply; is wide and would capture compliance with sanctions regimes.
- The contract should provide an Authority with an immediate termination right if the Supplier or its Affiliates embarrass or bring the Authority into disrepute or diminish the public trust in them. Contracts should therefore state that, at the Authority’s request, the Supplier must terminate any Sub-Contracts if a Sub-Contractor or its Affiliates embarrasses or brings into disrepute or diminishes the public trust in the Authority. (This would cover bullet point 2 under the procurement section above).
- Contracts should also include the usual force majeure provisions which could capture the implications of sanctions regimes in the event these delay performance of the contract.
- Contracts should include a schedule which contains BCDR provisions which could be invoked to ensure continuity of supply, again, if there is disruption as a result of sanctions regimes.