Part 10: Procurement oversight Section 109: Recommendations following procurement investigations
Subsection (1) sets out the circumstances in which a statutory recommendation, known as a "section 109 recommendation", can be made. A section 109 recommendation:
can only follow a procurement investigation by an appropriate authority (under section 108 (procurement investigations)),
can only be made to a contracting authority that was the subject of a procurement investigation, and
can only be made where the appropriate authority considers, in light of the results of that investigation, that the contracting authority has breached the requirements of the legislation, or is likely to do so. The appropriate authority can draw on results of more than one procurement investigation in coming to this conclusion.
	Subsection (2) and (3) set out the content of a section 109 recommendation. A section 109 recommendation details the action the contracting authority should take so that it complies with the requirements of the legislation, and the timeframe in which such action should take place. A section 109 recommendation must not relate to how the contracting authority has regard to procurement objectives (set out in section 12 (covered procurement objectives)), the national procurement policy statement (as per section 13 (the national procurement policy statement)) or the Wales procurement policy statement (as per section 14 (the Wales procurement policy statement)), nor how the contracting authority complies with the duty in section 86 (regulated below-threshold contracts: duty to consider SMEs) or takes specific decisions in relation to a particular procurement.
	Subsection (4) provides that contracting authorities who received a section 109 recommendation must have regard to it.
	Subsection (5) sets out that where a section 109 recommendation specifies, the contracting authority must provide a progress report to the appropriate authority, at specified intervals.
	Subsection (6) states that a progress report must set out the action the contracting authority has taken as a result of the section 109 recommendation, whether that is the action specified by the appropriate authority or otherwise. Where the contracting authority has taken no action the progress report must include a statement to that effect.
	Subsection (7) provides that if a contracting authority has not taken any action after the receipt of a section 109 recommendation, or has taken different action to that recommended, it must provide its reasons for doing so in the progress report.
	Subsection (8) confirms that the appropriate authority may publish the progress report submitted by the contracting authority, or notice that the contracting authority has failed to provide a progress report if that is the case.
	Subsection (9) provides relevant definitions.