Commentary on Sections Part 2: Single Source Contracts Section 33: Amount of penalty
121.For most contraventions, the amount of the penalty will be a tariff up to a maximum to be set out in the SSCRs (subsection (1)).
122.However, for two kinds of contraventions - providing a misleading report under section 24 and failure to comply with the duty to notify under section 26 - the amount of the penalty will be calculated as if the contravention were a breach of the QDC, and is to be calculated accordingly (no upper limit is set) (subsection (2)). Under these circumstances, the loss to the Secretary of State as a result of the contravention could vary substantially and could be in excess of an upper tariff penalty, where such a limit has been set at a level appropriate for other contraventions.
123.The calculation of a penalty under subsection (2) is to be made in accordance with the general law of contract having effect in England and Wales. Part 2 extends to all of the United Kingdom and it is possible that QDCs may be made under the law of Scotland. Nevertheless, the penalty under this section will be calculated in accordance with the contract law of England and Wales, to ensure consistency of penalty.