Don't reject bidders on political grounds
These laws may be relevant when a public body is considering a motion to boycott, divest from or sanction a company because of its involvement in the Jewish state, or in Jewish communities beyond the 1949 armistice line.
Procurement refers to the selection of contractors for works and services.
Public authorities are restricted if not prohibited, by not one but two laws, from taking procurement decisions on political grounds.
Local Government Act 1988
Part II of the Local Government Act 1988 requires public authorities to exercise procurement functions without reference to "non-commercial matters".
These non-commercial matters are listed, and they include the contractor's -
- involvement with irrelevant fields of Government
- procurement source, i.e. the country or
territory from which it get supplies
- location in any country or territory
- political or sectarian affiliations
Public Contracts Regulations 2015
Article 57(8) of the Public Contracts Regulations 2015 allows public authorities to exclude contractors from a procurement procedure in specified situations.
These situations mainly relate to technical and economic matters, such as failure to fulfil the selection criteria, insolvency, anti-competitive conduct, lack of integrity, poor performance in previous contracts, and misrepresentation.
They also include the case where the authority can demonstrate that the contractor is guilty of grave professional misconduct, which renders its integrity questionable.
BDS campaigners routinely try to persuade authorities that bidders which provide services to Jewish communities in Judea and Samaria (which they call "settlements"), or which obtain supplies from those communities, are in breach of international law, thereby committing "war crimes", and are therefore guilty of grave professional misconduct justifying an authority in excluding the bidder.
To our knowledge no public authority has ever excluded a
bidder on grounds of grave professional misconduct.