Part 3: Award of public contracts and procedures Awarding contracts by reference to dynamic markets Section 36: Dynamic markets: membership
Subsection (1) allows a contracting authority to set conditions for membership of a dynamic market or part of a dynamic market. These are similar to conditions for participation used in the award of a public contract under a competitive tendering procedure (see section 22 (Conditions of participation)) and are permitted as long as they are a proportionate way of ensuring suppliers have the legal and financial capacity or technical ability to perform contracts. The following subsections set out the matters to be taken into account in determining whether a condition is proportionate and the rules that apply to conditions for membership.
	Subsection (2) prohibits contracting authorities from setting certain conditions for membership of a dynamic market when seeking to ensure that suppliers have the legal and financial capacity to perform contracts to be awarded by reference to the dynamic market. Subsection (2)(a) prohibits contracting authorities from requiring the provision of audited annual accounts from suppliers that are not required by the Companies Act 2006 or an overseas equivalent to have their accounts audited (for example small companies). Subsection (2)(b) prohibits contracting authorities from requiring insurance relating to the performance of the contract to be in place before award of the contract. This allows suppliers that are not legally required to have their accounts audited to provide alternative evidence and allows suppliers to commit to having insurance in place at award.
	Subsection (3) makes it clear that whilst the conditions for membership of a dynamic market set under subsection (1)(b) can relate to qualifications, experience or technical ability, they cannot require suppliers to have been awarded a contract by a particular contracting authority, contravene the rules on technical specifications in section 56 (technical specifications) or require particular qualifications without allowing for equivalents. This is to ensure that suppliers are not put at an unfair advantage or disadvantage with respect to such matters.
	Subsection (4) defines what is meant by conditions for membership being (as referred to in subsection (1)) proportionate, which is that they are commensurate to the nature, complexity and cost of contracts to be awarded under the dynamic market.
	Subsection (5) permits a contracting authority to require evidence that is verifiable by a third party to satisfy a condition for membership of a dynamic market e.g. certification to an "ISO standard".
	Subsection (6) sets out contracting authorities’ responsibilities in relation to the membership of the dynamic market or part of the market (as relevant). These are that the contracting authority must accept applications at any time, consider applications in a reasonable period of time, admit suppliers to the dynamic market (as long as they are not excluded suppliers and they satisfy the conditions for membership) as soon as reasonably practicable, consider whether to admit suppliers that are excludable suppliers and that meet the conditions for membership and inform suppliers of the outcome of their applications, and the reasons for the decision, as soon as reasonably practicable.
	Subsection (7) sets out that the number of suppliers on a dynamic market cannot be limited and that the conditions for membership of a dynamic market, or part thereof, may not be modified during the life of the dynamic market. The conditions for membership must remain consistent throughout the life of the dynamic market to ensure fairness to all suppliers.