Part 3: Award of public contracts and procedures Awarding contracts by reference to dynamic markets Section 34: Competitive award by reference to dynamic markets
Subsection (1) provides that a competitive flexible procedure may provide for the exclusion of suppliers that are not members of an appropriate dynamic market or are not members of an appropriate part of an appropriate dynamic market. The effect of this is that the award of a contract under a dynamic market must be by way of a competitive flexible procedure and cannot be by way of an open procedure or direct award.
	Subsection (2) provides that subsection (3) applies in relation to the award of a public contract where a contracting authority requires suppliers to be members of a dynamic market or part of a dynamic market, as provided for in subsection (1).
	Subsection (3) requires that when a contracting authority is assessing tenders under section 19, it must disregard tenders from suppliers who are not members of the relevant dynamic market or appropriate part of it. This is to ensure that, where subsection (1) applies, a contract cannot be awarded to a supplier that is not a member of the dynamic market, or appropriate part of it.
	Subsection (4) requires that before a contracting authority excludes a supplier or disregards a tender from a supplier that is not a member of the relevant dynamic market or appropriate part of it, it must, if the supplier has submitted an application for membership of the dynamic market, consider their application. This allows suppliers who are not on the dynamic market at the time a tender notice for a procurement is published to still participate in a procurement under it if they are successful in their application for membership of the dynamic market.
	Subsection (5) states that the requirements in subsection (4) do not apply if, due to exceptional circumstances arising from the complexity of the particular procurement, the contracting authority has insufficient time to consider the supplier’s application for membership before the deadline for submitting a request to participate in the procedure or the deadline for submission of tenders.
	Subsection (6) says that an "appropriate" dynamic market or "appropriate" part of a dynamic market means a dynamic market or part thereof which allows for the award of the particular contract being procured by the contracting authority.
	Subsection (7) provides that concession contracts, other than those which are utilities contracts, cannot be awarded under dynamic markets.
	Subsection (8) defines a "dynamic market" as an arrangement set up in accordance with section 35(1).  This subsection also clarifies that references to a contract being awarded by reference to suppliers’ membership of a dynamic market means that contracts are awarded in reliance on section 34 and that references to suppliers’ membership of a dynamic market are references to suppliers’ participation in dynamic markets set up under section 35(1).