Part 3: Award of public contracts and procedures Awarding contracts by reference to dynamic markets Section 40: Qualifying utilities dynamic market notices: no duty to publish a tender notice
Utilities dynamic markets may be established in the usual way, using a dynamic market notice, or using a qualifying utilities dynamic market notice. Section 40 sets out the different rules for tender notices and the exceptions to the rules for dynamic markets that apply to utilities dynamic markets established under a qualifying utilities dynamic market notice and defines a qualifying utilities dynamic market notice.
	Subsection (1) provides that a contracting authority that establishes a dynamic market by reference to a qualifying utilities dynamic market notice is not required, as part of a competitive flexible procedure under that market, to publish a tender notice for the purpose of inviting suppliers to submit a request to participate or, where relevant, tenders (see section 21(1) (Tender notices and associated tender documents).
	Subsection (2) provides that where subsection (1) applies, a contracting authority must, instead of publishing a tender notice, provide a tender notice to members of the market or appropriate part of the market.
	Subsection (3) allows a contracting authority the discretion to provide a tender notice to suppliers that are still being considered for membership of the market, or part of the market, by the contracting authority.
	Subsection (4) incorporates a qualifying utilities dynamic market notice into section 21(5) (Tender notices and associated tender documents). This means that, in the case of a utilities dynamic market established by reference to a qualifying utilities dynamic market notice, the qualifying utilities dynamic market notice, tender notice provided to suppliers or associated tender documents must contain the level of sufficiency of information required by section 21(5) in order to invite suppliers to submit a tender under the market.
	Subsection (5) disapplies the duty in section 34(4) (Competitive award by reference to utilities dynamic markets) on contracting authorities to consider applications for membership of a utilities dynamic market, or part of such a market, established by reference to a qualifying utilities dynamic market notice.
	Subsection (6) defines a "qualifying utilities dynamic market notice". This notice must comply with the requirements for a dynamic market notice in section 39(2), relate to the establishment of a utilities dynamic market and contain the information specified in subsection (6)(b).
	Subsection (7) provides that a reference to "publication" of a tender notice in the Act includes a reference to "provision" of a tender notice as described in subsections (2) or (3).