Definition
Discretionary Exclusion Ground
A ground the buyer may exclude you for.
Discretionary exclusion grounds are circumstances, such as insolvency, professional misconduct, or significant past contract performance failures, where a UK public buyer may choose to exclude a bidder but is not automatically required to. The buyer must assess proportionality and consider any self-cleaning evidence the supplier provides before deciding.
Common discretionary grounds
Discretionary grounds cover a broader and more variable set of issues than mandatory grounds, reflecting judgement about a supplier's reliability, integrity and capability to perform the specific contract, rather than a fixed legal bar.
The Procurement Act 2023 also expanded and clarified some discretionary grounds compared with PCR 2015, including a stronger focus on past performance issues and connections to grounds affecting associated persons or subsidiaries.
- Insolvency, administration or equivalent proceedings
- Grave professional misconduct or breach of environmental, labour or social law obligations
- Significant or persistent failure to perform a prior public contract satisfactorily
- Distorting competition, or being involved in improper contact with the buyer during the process
- Providing misleading information or failing to supply required information
How buyers apply discretion
Buyers should assess each case on its facts, considering severity, how recent the issue is, and what the supplier has done to fix it. A single minor performance issue years ago on an unrelated contract is very different from a pattern of terminated contracts on similar work.
Suppliers should proactively address any known issues in tender responses with a clear narrative and evidence, rather than hoping the buyer does not notice or ask.
Frequently asked questions
- Can a buyer exclude me for a contract that was terminated years ago?
- Possibly, if it demonstrates a pattern of concern or was serious and relevant, but buyers are expected to weigh proportionality, including how long ago it happened and what has changed since. Strong self-cleaning evidence significantly improves your position.
- Is discretionary exclusion the same across every UK public buyer?
- The underlying legal grounds are set out in national legislation, but individual buyers exercise judgement within that framework, so two buyers could reach different conclusions on similar facts depending on the contract's risk profile and the evidence provided.
- How do I challenge a discretionary exclusion decision?
- Request detailed feedback on why the ground was applied, then consider whether the decision was proportionate and evidence-based. Legal challenge is possible but time limits are short, so seek advice quickly; this is general information, not legal advice.
Related terms