Part 3: Award of public contracts and procedures Chapter 3: Direct award Section 43: Switching to direct award
This section allows a contracting authority to switch from a competitive tendering procedure to the direct award of a contract. Subsection (1) provides that this is permissible in circumstances where no suitable tenders or requests to participate have been received in that competitive procedure and the contracting authority considers that the award of a contract under a competitive tendering procedure is not possible in the circumstances. In addition, subsection (1) provides that the direct award in this case cannot be to an excluded supplier (as defined in section 57(1)).
	Subsection (2) sets out when a tender or request would not be considered "suitable". There are four circumstances: firstly where the supplier’s tender would be disregarded in accordance with section 19(3)(a),(b), or (c) (Award of public contracts following a competitive tendering procedure), secondly when the tender does not satisfy the contracting authorities requirements or award criteria, thirdly where there is evidence of corruption or collusion and finally where the tender materially breaches a procedural requirement set out in the tender notice or associated tender documents as elaborated further in subsections (3) and (4).
	Subsection (5) allows for a selection process or other preliminary steps to be taken prior to any direct award (in the same way as in section 41(3) (Direct award in special cases)).
	Subsection (6) provides that before making any direct award under this section, the contracting authority must consider whether the supplier is an excludable supplier (as defined under section 57(2)) or whether it submitted an unsuitable tender or request to participate in the unsuccessful competitive tendering procedure.  This is because it may not be appropriate in these situations for such a supplier to benefit from a direct award, although it is not an absolute prohibition as it would depend on the particular circumstances. For instance, if the supplier’s previous tender was unsuitable due to collusion, a subsequent direct award for the same contract may be inappropriate; however if it were due to a failure to meet certain award criteria, it may, nevertheless, be preferable in the circumstances to directly award the contract to the supplier rather than to a supplier who had no prior involvement.