Citation, commencement, extent and application

1.—(1) This Order may be cited as the Local Government (Exclusion of Non-commercial Considerations) (England) Order 2026.

(2) This Order comes into force on the day after the day on which the Order is made.

(3) This article and article 4 extend to England and Wales, Scotland and Northern Ireland, while articles 2 and 3 extend to England and Wales only.

Interpretation

2. In this Order—

“ the 1988 Act ” means the Local Government Act 1988 ( 4 );

“ below-threshold contract ” has the same meaning as in section 5(5) of the Procurement Act 2023 ( 5 );

“ below-threshold tender notice ” has the same meaning as in section 87(5) of the Procurement Act 2023 ( 6 );

“ contractor ” has the same meaning as in section 17(8) of the 1988 Act( 7 );

“ county ” means a county established by section 1 of the Local Government Act 1972 (new local government areas in England) ( 8 );

“ notifiable below-threshold contract ” has the same meaning as in section 87(4) of the Procurement Act 2023 ( 9 );

“ procurement ” has the same meaning as in section 1 of the Procurement Act 2023 ;

“ relevant authority ” means any best value authority( 10 ) or parish council;

“ relevant contract ” means a contract to which section 17 of the 1988 Act( 11 ) applies which is a below-threshold contract.

Matters not to be non-commercial matters

3.—(1) In respect of the functions regulated by section 17 of the 1988 Act, the matter specified in section 17(5)(e) of that Act ceases to be a non-commercial matter but only to the extent that either paragraph (2) or (3) applies.

(2) This paragraph applies where, before inviting the submission of tenders, a relevant authority determines that contractors not based within the United Kingdom may not participate in the procurement of a relevant contract.

(3) This paragraph applies where, before inviting the submission of tenders, a relevant authority determines that contractors not based within the local area may not participate in the procurement of a relevant contract.

(4) For the purposes of paragraphs (2) and (3) a contractor is “based within” a location where that contractor is based or has established substantive business operations, not taking account of the location of the corporate ownership or control of the contractor.

(5) For the purposes of paragraph (3), “the local area” is—

(a)where there is one relevant authority which intends to enter into a relevant contract—

(i)the area of that authority, or

(ii)the area specified in (i) and any of the areas of the counties or London boroughs that border that area;

(b)where there are two or more relevant authorities which intend to enter into a relevant contract—

(i)the areas of those authorities, or

(ii)the areas specified in (i) and any of the areas of the counties or London boroughs that border those areas.

(6) For the purposes of sub-paragraphs (a)(i) and (b)(i) of paragraph (5), where the relevant authority is wholly located within a single county or London borough, the area of that authority may be either—

(a)the area of the authority, or

(b)the area of the single county or London borough that the authority is located within.

(7) For the purposes of paragraph (5), the area of a relevant authority is determined by reference to where the authority primarily exercises its functions, disregarding any areas outside of the United Kingdom.

(8) Where the relevant authority advertises for the purpose of inviting tenders in accordance with either paragraph (2) or paragraph (3), the authority must specify which paragraph applies, and (where paragraph (3) applies) the extent of the local area for the purposes of paragraph (5)—

(a)in respect of a notifiable below-threshold contract, in the below-threshold tender notice, and

(b)in respect of all other relevant contracts, in the advertisement.

Amendment of the Procurement Regulations 2024

4.—(1) The Procurement Regulations 2024(12) are amended as follows.

(2) In regulation 24(2) (below-threshold tender notices)—

(a)omit the “and” after sub-paragraph (i);

(b)after sub-paragraph (j), insert “, and

“(k)whether the notice is being used, in accordance with article 3 of the Local Government (Exclusion of Non-commercial Considerations) (England) Order 2025, to reserve a contract—

(i)to suppliers based within the United Kingdom, or

(ii)to suppliers based within the local area, and for that purpose, also specify the areas which constitute the local area for the purposes of article 3(5) of that Order”.