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STATUTORY INSTRUMENTS

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2006 No. 5
PUBLIC PROCUREMENT, ENGLAND AND WALES, PUBLIC PROCUREMENT NORTHERN IRELAND
The Public Contracts Regulations 2006 incorporating amendments

The Public Contracts and Utilities Contracts (Amendment) Regulations 2007 SI 2007 No 3542
The Public Contracts and Utilities Contracts (CPV Code Amendments) Regulations 2008
The Public Contracts and Utilities Contracts (Postal Services Amendments) Regulations 2008
The Public Contracts (Amendment) Regulations 2009 SI 2009 No. 2992






	Made	9th January 2006
	Laid before Parliament	9th January 2006
	Coming into force	31st January 2006

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 





ARRANGEMENT OF REGULATIONS

PART 1
GENERAL

1.	Citation, commencement and extent

2.	Interpretation

3.	Contracting authorities

4.	Economic operators

5.	Application

6.	General exclusions

7.	Reserved contracts

8.	Thresholds


PART 2
TECHNICAL SPECIFICATIONS

9.	Technical specifications in the contract documents

10.

Variants


PART 3
PROCEDURES LEADING TO THE AWARD OF A PUBLIC CONTRACT

11.	Prior information notices

12.	Selection of contract award procedures

13.	Use of the negotiated procedure with prior publication of a contract notice

14.	Use of the negotiated procedure without prior publication of a contract notice

15.	The open procedure

16.	The restricted procedure

17.	The negotiated procedure

18.	The competitive dialogue procedure

19.	Framework agreements

20.	Dynamic purchasing systems

21.	Electronic auctions

22.	Central purchasing bodies


PART 4
SELECTION OF ECONOMIC OPERATORS

23.	Criteria for the rejection of economic operators

24.	Information as to economic and financial standing

25.	Information as to technical or professional ability

26.	Supplementary information

27.	Official lists of approved economic operators

28.

Consortia

29.	Corporations


29A. Notification


PART 5
THE AWARD OF A PUBLIC CONTRACT

30.	Criteria for the award of a public contract

31.	Contract award notice

32.	Information about contract award procedures


32A. Standstill period
PART 6
SPECIALISED CONTRACTS

33.	Design contests

34.	Subsidised public works contracts and public services contracts

35.	Subsidised housing scheme works contracts

36.	Public works concession contracts

37.	Sub-contracting the work or works to be carried out under a public works concession contract


PART 7
MATTERS RELATING TO A PUBLIC CONTRACT

38.	Obligations relating to taxes, environmental protection, employment protection and working conditions

39.	Conditions for performance of contracts


PART 8
MISCELLANEOUS

40.	Statistical and other reports

41.	Provision of reports

42.	Publication of notices

43.	Confidentiality of information

44.	Means of communication

45.	Sub-contracting

46.	Public service bodies


PART 9
APPLICATIONS TO THE COURT

47. Interpretation of Part 9


47A. Duty owed to economic operators

47B. Duty owed to GPA economic operators

47C. Enforcement of duties through the Court

47D. General time limits for starting proceedings

47E. Special time limits for seeking a declaration of ineffectiveness

47F. Starting proceedings

47G. Contract-making suspended by challenge to award decision

47H. Interim orders

47I. Remedies where the contract has not been entered into

47J. Remedies where the contract has been entered into

47K. Grounds for ineffectiveness

47L. General interest grounds for not making a declaration of ineffectiveness

47M. The consequences of ineffectiveness

47N. Penalties in addition to, or instead of, ineffectiveness

47O. Ineffectiveness etc. in relation to specific contracts based on a framework agreement

47P. Injunctions against the Crown

PART 10
CONSEQUENTIAL AMENDMENTS, REPEALS, REVOCATIONS, SAVINGS AND TRANSITIONAL PROVISIONS

48.	Consequential amendments, repeals and revocations

49.	Savings and transitional provisions




SCHEDULE 1—

GPA CONTRACTING AUTHORITIES




SCHEDULE 2—

ACTIVITIES CONSTITUTING WORKS




SCHEDULE 3—

CATEGORIES OF SERVICES




SCHEDULE 4—

EXTENSION TO NON-MEMBER STATES




SCHEDULE 5—

GOODS FOR THE PURPOSES OF THE THRESHOLDS




SCHEDULE 6—

PROFESSIONAL OR TRADE REGISTERS




SCHEDULE 7—

CONSEQUENTIAL AMENDMENTS, REPEALS AND REVOCATIONS


The Treasury, being designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to public procurement, in exercise of the powers conferred upon them by the said section 2(2), make the following Regulations—



PART 1
GENERAL
Citation, commencement and extent
     1. —(1) These Regulations may be cited as the Public Contracts Regulations 2006 and come into force on 31st January 2006.

    (2) These Regulations do not extend to Scotland.

Interpretation
     2. —(1) In these Regulations—


"to award" means to accept an offer made in relation to a proposed contract;
"buyer profile" means a page on the internet set up by a contracting authority containing one or more of the following: prior information notices, information on ongoing invitations to tender, prospective and concluded contracts, cancelled procedures and useful general information, such as a contact point, a telephone number, a facsimile number, a postal address or an e-mail address;
"carrying out" in relation to a work or works means the construction or the design and construction of that work or those works;
"central purchasing body" means a contracting authority which—
(a) acquires goods or services intended for one or more contracting authorities;

(b) awards public contracts intended for one or more contracting authorities; or

(c) concludes framework agreements for work, works, goods or services intended for one or more contracting authorities;


"the Commission" means the European Commission;
"Commission Regulation (EC) No 1564/2005" means Commission Regulation (EC) No 1564/2005 of 7 September 2005[3];
"Common Procurement Vocabulary" as amended by Regulation (EC) No 213/2008 of the
Commission of the European Communities(e); means the reference nomenclature applicable to public contracts as adopted by Regulation (EC) No 2195/2002 of 5 November 2002 of the European Parliament and of the Council on the Common Procurement Vocabulary[4];
"competitive dialogue procedure" means a procedure—
(a) in which any economic operator may make a request to participate; and

(b) whereby a contracting authority conducts a dialogue with the economic operators admitted to that procedure with the aim of developing one or more suitable alternative solutions capable of meeting its requirements and on the basis of which the economic operators chosen by the contracting authority are invited to tender;


"concessionaire" means a person who has entered into a public works concession contract with a contracting authority;
"contract documents" means the invitation to tender for or to negotiate a contract, the descriptive document (if any), the proposed conditions of contract, the specifications or descriptions of the goods, services, work or works required by the contracting authority and of the materials or goods to be used in or for such work or works, and all documents supplementary thereto;
"contract notice" means, except in regulation 49, a notice sent to the Official Journal in accordance with these Regulations;
"contracting authority" has the meaning given to it by regulation 3;
"contractor" means a person who offers on the market work or works and—
(a) who sought, who seeks, or would have wished, to be the person to whom a public works contract is awarded; and

(b) who is a national of and established in a relevant State;


"CPC" means Central Product Classification of the United Nations[5];
"CPV" means Common Procurement Vocabulary;
"design contest" means a competition, particularly in the fields of planning, architecture, civil engineering and data processing—
(a) which is conducted by or on behalf of a contracting authority and in which that contracting authority invites the entry by economic operators of plans and designs;

(b) under the rules of which the plans or designs entered will be judged by a jury;

(c) under which prizes may or may not be awarded; and

(d) which enables the contracting authority to acquire the use or ownership of plans or designs selected by the jury;


"disabled person" means any person recognised as disabled within the meaning of the Disability Discrimination Act 1995[6] and "disabled persons" shall be interpreted accordingly;
"disability" has the same meaning as in that Act;
"dynamic purchasing system" means a completely electronic system of limited duration which is—
(a) established by a contracting authority to purchase commonly used goods, work, works or services; and

(b) open throughout its duration for the admission of economic operators which—


(i) satisfy the selection criteria specified by the contracting authority; and

(ii) submit an indicative tender to the contracting authority or person operating the system on its behalf which complies with the specification required by that contracting authority or person;



"EC Treaty" means the Treaty establishing the European Community signed on 25 March 1957 as amended by the Community Treaties;
"economic operator" has the meaning given to it by regulation 4;
"electronic auction" means a repetitive electronic process for the presentation of prices to be revised downwards or of new and improved values of quantifiable elements of tenders, including price, which—
(a) takes place after the initial evaluation of tenders; and

(b) enables tenders to be ranked using automatic evaluation methods;


"electronic means" means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
"established" has the same meaning as in the Community Treaties:
"European standard" has the meaning given to it in regulation 9(1);
"financial year" means, unless the context otherwise requires, the period of 12 months ending on the date in any year in respect of which the accounts of any person are prepared;
"framework agreement" means an agreement or other arrangement between one or more contracting authorities and one or more economic operators which establishes the terms (in particular the terms as to price and, where appropriate, quantity) under which the economic operator will enter into one or more contracts with a contracting authority in the period during which the framework agreement applies;
"goods" includes electricity, substances, growing crops and things attached to or forming part of the land which are agreed to be severed before the purchase or hire under a public supply contract, and any ship, aircraft or vehicle;
"government department" includes a Northern Ireland department or the head of that department;
"Government Procurement Agreement" means the Agreement on Government Procurement between certain parties to the World Trade Organisation (WTO) signed in Marrakesh on 15 April 1994[7];
"GPA" means the Government Procurement Agreement;
"indicative tender" means a tender prepared by an economic operator seeking admission to a dynamic purchasing system which sets out the terms on which it would be prepared to enter into a contract with a contracting authority should that contracting authority propose to award a contract under the system;
"international standard" has the meaning given to it in regulation 9(1);
"letter" has the same meaning as in the Postal Services Act 2000[8];
"Minister of the Crown" means the holder of an office in Her Majesty's Government in the United Kingdom and includes the Treasury;
"national of a relevant State" means, in the case of a person who is not an individual, a person formed in accordance with the laws of a relevant State and which has its registered office, central administration or principal place of business in a relevant State;
"negotiated procedure" means a procedure leading to the award of a contract whereby the contracting authority negotiates the terms of the contract with one or more economic operators selected by it;
"Office of Government Commerce" means the office of the Treasury having that title[9];
"Official Journal" means the Official Journal of the European Union;
"open procedure" means a procedure leading to the award of a contract whereby all interested economic operators may tender for the contract;
"prior information notice" means a notice sent to the Official Journal in accordance with regulation 11;
"public contract" means a public services contract, a public supply contract or a public works contract;
"Public Sector Directive" means Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004[10];
"public services contract" means a contract, in writing, for consideration (whatever the nature of the consideration) under which a contracting authority engages a person to provide services but does not include—
(a) a public works contract; or

(b) a public supply contract;



but a contract for both goods and services shall be considered to be a public services contract if the value of the consideration attributable to those services exceeds that of the goods covered by the contract and a contract for services which includes activities specified in Schedule 2 that are only incidental to the principal object of the contract shall be considered to be a public services contract;



"public supply contract" means a contract, in writing, for consideration (whatever the nature of the consideration)—
(a) for the purchase of goods by a contracting authority (whether or not the consideration is given in instalments and whether or not the purchase is conditional upon the occurrence of a particular event), or

(b) for the hire of goods by a contracting authority (both where the contracting authority becomes the owner of the goods after the end of the period of hire and where it does not);



and for any siting or installation of those goods, but where under such a contract services are also to be provided, the contract shall only be a public supply contract where the value of the consideration attributable to the goods and any siting or installation of the goods is equal to or greater than the value attributable to the services;



"public telecommunications services" means telecommunications services the provision of which a relevant State has specifically assigned, in particular, to one or more telecommunications entities;
"public works concession contract" means a public works contract under which the consideration given by the contracting authority consists of or includes the grant of a right to exploit the work or works to be carried out under the contract;
"public works contract" means a contract, in writing, for consideration (whatever the nature of the consideration)—
(a) for the carrying out of a work or works for a contracting authority; or

(b) under which a contracting authority engages a person to procure by any means the carrying out for the contracting authority of a work corresponding to specified requirements;


"relevant State" has the meaning given to it by regulation 4(4);
"restricted procedure" means a procedure leading to the award of a contract whereby only economic operators selected by the contracting authority may submit tenders for the contract;
"Schedule 1 entity" means an entity specified in Schedule 1 in accordance with its inclusion in the list of central government bodies in Annex I to the GPA, and for which these Regulations make particular provisions;
"services concession contract" means a public services contract under which the consideration given by the contracting authority consists of or includes the right to exploit the service or services to be provided under the contract;
"services provider" means a person who offers on the market services and—
(a) who sought, who seeks, or who would have wished—


(i) to be the person to whom a public services contract is awarded; or

(ii) to participate in a design contest; and



(b) who is a national of and established in a relevant State;



"ship" includes any boat and other description of a vessel used in navigation;
"substance" means any natural or artificial substance, whether in solid, liquid or gaseous form or in the form of vapour;
"supplier" means a person who offers on the market goods for purchase or hire and—
(a) who sought, who seeks, or who would have wished, to be the person to whom a public supply contract is awarded; and

(b) who is a national of and established in a relevant State;


"telecommunications services" means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television;
"Utilities Directive" means Directive 2004/17/EC of the European Parliament and of the Council of 31^st March 2004[11];
"work" means the outcome of any works which is sufficient of itself to fulfil an economic and technical function;
"working day" means a day other than a Saturday, Sunday, Christmas Day, Good Friday and Bank Holiday within the meaning of the Banking and Financial Dealings Act 1971[12];
"works" means any of the activities specified in Schedule 2;
"written" or "in writing" means any expression consisting of words or figures that can be read, reproduced and subsequently communicated and it may include information transmitted and stored by electronic means; and
"year" means a calendar year.

    (2) Subject to paragraph (3), in these Regulations—



(a) "a Part A services contract" is a contract under which services specified in Part A of Schedule 3 are to be provided;

(b) "a Part B services contract" is a contract under which services specified in Part B of Schedule 3 are to be provided;



    (3) Where services specified in both Parts A and B of Schedule 3 are to be provided under a single contract, then the contract shall be treated as—



(a) a Part A services contract if the value of the consideration attributable to the services specified in Part A is greater than that attributable to those specified in Part B; and

(b) a Part B services contract if the value of the consideration attributable to the services specified in Part B is equal to or greater than that attributable to those specified in Part A.



    (4) Except in Part 9, where a thing is required to be done under these Regulations—



(a) within a certain period after an action is taken, the day on which that action is taken shall not be counted in the calculation of that period;

(b) within a certain period, that period must include at least two working days; and

(c) within a certain period and the last day of that period is not a working day, the period shall be extended to include the next working day.



Contracting authorities
     3. —(1) For the purposes of these Regulations each of the following is a contracting authority—



(a) a Minister of the Crown;

(b) a government department;

(c) the House of Commons;

(d) the House of Lords;

(e) the Northern Ireland Assembly Commission;

(f) the Scottish Ministers;

(g) the Scottish Parliamentary Corporate Body;

(h) the National Assembly for Wales;

(i) a local authority;

(j) a fire authority constituted by a combination scheme under the Fire Services Act 1947[13];

(k) a fire and rescue authority—


(i) within the meaning of section 1 of the Fire and Rescue Services Act 2004[14];

(ii) constituted by a scheme under section 2 of that Act; or

(iii) constituted by a scheme to which section 4 of that Act applies;



(l) the Fire Authority for Northern Ireland;

(m) a police authority established under section 3 of the Police Act 1996[15];

(n) the Metropolitan Police Authority established under section 5B[16] of the Police Act 1996;

(o) a police authority established under section 2 of the Police (Scotland) Act 1967[17];

(p) the Northern Ireland Policing Board;

(q) an authority established under section 10 of the Local Government Act 1985[18];

(r) a joint authority established by Part IV of that Act;

(s) any body established in accordance with an order under section 67 of that Act;

(t) the Broads Authority;

(u) any joint board, the constituent members of which consist of any of the bodies specified in paragraphs (i), (j), (m), (n), (o), (p), (q), (r) and (s);

(v) a National Park authority established by an Order under section 63 of the Environment Act 1995[19];

(w) a corporation established, or a group of individuals appointed to act together, for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and—



(i) financed wholly or mainly by another contracting authority;

(ii) subject to management supervision by another contracting authority; or

(iii) more than half of the board of directors or members of which, or, in the case of a group of individuals, more than half of those individuals, are appointed by another contracting authority;



(x) an association of or formed by one or more of the above; and

(y) to the extent not specified in sub-paragraphs (a) to (v), an entity specified in Schedule 1.



    (2) In the application of these Regulations to a local authority in England, "local authority" in paragraph (1) means—



(a) a county council, a district council, a London borough council, a parish council, the Council of the Isles of Scilly;

(b) the Common Council of the City of London in its capacity as local authority or police authority; or

(c) the Greater London Authority or a functional body within the meaning of the Greater London Authority Act 1999[20].



    (3) In the application of these Regulations to a local authority in Wales, "local authority" in paragraph (1) means a county council, a county borough council or a community council.

    (4) In the application of these Regulations to a local authority in Scotland, "local authority" in paragraph (1) has the same meaning as in section 235(1) of the Local Government (Scotland) Act 1973[21] and also includes a joint board or joint committee within the meaning of section 235(1) of that Act.

    (5) In the application of these Regulations to a local authority in Northern Ireland, "local authority" in paragraph (1) means a district council within the meaning of the Local Government Act (Northern Ireland) 1972[22].

    (6) Where an entity specified in paragraph (1) does not have the capacity to enter into a contract, the contracting authority in relation to that entity is a person whose function it is to enter into contracts for that entity.

Economic operators
     4. —(1) In these Regulations, an "economic operator" means a contractor, a supplier or a services provider.

    (2) When these Regulations apply, a contracting authority shall not treat a person who is not a national of a relevant State and established in a relevant State more favourably than one who is.

    (3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—



(a) treat economic operators equally and in a non-discriminatory way; and

(b) act in a transparent way.



    (4) In these Regulations a relevant State is a member State or a State listed in column 1 of Schedule 4; the agreements with the European Union by which the provisions in relation to public procurement are extended to those States are specified in column 2 of that Schedule and the statutory provision designating them as European Treaties under section 1(3) of the European Communities Act 1972[23] is specified in column 3 of that Schedule.

Application
     5. —(1) Subject to paragraph (1A) and (3), these Regulations apply whenever a contracting authority seeks offers in relation to a proposed public supply contract, public works contract, Part A services contract, framework agreement or dynamic purchasing system other than a contract, framework agreement or dynamic purchasing system excluded from the application of these Regulations by regulation 6 or 8.

(1A) Paragraph (1) does not apply whenever a contracting authority seeks oVers in relation to a proposed framework agreement or dynamic purchasing system in respect of which only Part B services contracts can be based or awarded.

    (2) Whenever a contracting authority seeks offers in relation to a proposed Part B services contract or a framework agreement
or dynamic purchasing system in respect of which only Part B services contracts can
be based or awarded other than one excluded by virtue of regulation 6 or 8—



(a) Parts 1, 9 and 10 apply; and

(b) the following provisions in Parts 2 to 8 apply—


(i) regulation 9 (technical specifications in the contract documents);

(ii) regulation 31 (contract award notice);

(iii) regulation 40(2) (statistical and other reports);

(iv) regulation 41 (provision of reports); and

(v) regulation 42 (publication of notices).



    (3) In these Regulations, a reference to a public works contract does not include a public works concession contract except in—



(a) Parts 1, 9 and 10; and

(b) the following provisions in Parts 6, 7 and 8—


(i) regulation 34 (subsidised public works contracts and public services contracts);

(ii) regulation 36 (public works concession contracts);

(iii) regulation 37 (sub-contracting the work or works to be carried out under a public works concession contract);

(iv) regulation 39 (conditions for performance of contracts);

(v) regulation 41 (provision of reports);

(vi) regulation 42 (publication of notices);

(vii) regulation 43 (confidentiality of information);

(viii) regulation 44 (means of communication);

(ix) regulation 45 (sub-contracting); and

(x) regulation 46 (public service bodies).



General exclusions
     6. —(1) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system where the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts Regulations 2006[24] and—



(a) that contract is for the purposes of carrying out an activity listed in any Part of Schedule 1 to those Regulations in which the utility is specified;

(b) that contract is for the provision of bus services to the public where other entities are free to provide those services, either in general or in a particular geographical area, under the same conditions as the utility;

(c) that contract is for the purpose of acquiring goods, work, works or services in order to sell, hire or provide them to another person unless the utility has a special or exclusive right to sell, hire or provide such goods, work, works or services or other persons are not free to sell, hire or provide them under the same conditions;

(d) that contract is for the purchase of water, where that utility is engaged in the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transportation or distribution of drinking water or the supply of drinking water to such networks;

(e) that contract is for the supply of energy or of fuels for the production of energy, where that utility is engaged in—


(aa) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat or the supply of gas or heat to such networks;

(bb) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity or the supply of electricity to such networks; or

(cc) exploring for or extracting oil, gas, coal or other solid fuels; or



(f) where that utility is engaged in an activity excluded from the Utilities Contracts Regulations 2006 by virtue of regulation 9 of those Regulations.



    (2) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system—



(a) where the principal purpose of the contract is to permit the contracting authority to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services;

(b) which is classified as secret or where the performance of the contract must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom require it;

(c) where Article 296 of the EC Treaty applies to that public contract, framework agreement or dynamic purchasing system;

(d) where different procedures govern the procedures leading to the award of the contract and it is to be entered into in accordance with—


(i) an international agreement concluded in conformity with the EC Treaty to which the United Kingdom and a State which is not a relevant State are parties and it relates to goods or the carrying out of a work or works or the provision of services intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops and concerning the undertakings of a relevant State or a state which is not a relevant State; or

(iii) the contract award procedures of an organisation of which only States are members (an "international organisation") or of which only States or international organisations are members;



(e) for the acquisition of land, including existing buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land;

(f) for the acquisition, development, production or co-production of programme material intended for broadcasting by broadcasters or for the purchase of broadcasting time;

(g) for arbitration or conciliation services;

(h) for financial services in connection with the issue, purchase, sale or transfer of securities or other financial instruments in particular transactions by the contracting authorities to raise money or capital;

(i) for central bank services;

(j) for employment and other contracts of service;

(k) for research and development services unless—



(i) the benefits are to accrue exclusively to the contracting authority for its use in the conduct of its own affairs; and

(ii) the services are to be wholly paid for by the contracting authority;



(l) under which services are to be provided by a contracting authority, or by a person which is a contracting authority in another relevant State for the purposes of the Public Sector Directive, because that contracting authority or person has an exclusive right—



(i) to provide the services, or

(ii) which is necessary for the provision of the services;



in accordance with any published law, regulation or administrative provision, which is compatible with the EC Treaty; or

(m) which is a services concession contract awarded by a contracting authority, subject to the application of regulation 46.



Reserved contracts
     7. —(1) In this regulation—



"supported business" means a service where more than 50% of the workers are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported businesses" shall be interpreted accordingly;
"supported employment programme" means a scheme under which work is provided for disabled persons and where more than 50% of the workers so supported are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported employment programmes" shall be interpreted accordingly; and
"supported factory" means an establishment where more than 50% of the workers are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported factories" shall be interpreted accordingly.

    (2) A contracting authority may reserve the right to participate in a public contract award procedure, framework agreement or dynamic purchasing system to economic operators which operate supported factories, supported businesses or supported employment programmes.

    (3) Where a contracting authority has reserved the right to participate in a public contract, framework agreement or dynamic purchasing system in accordance with paragraph (2), it shall follow the contract award procedures set out in these Regulations.

    (4) When seeking offers in relation to a public contract, a framework agreement or dynamic purchasing system, a contracting authority shall specify in the contract notice if it is using the approach referred to in paragraph (2).

Thresholds
     8. —(1) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system where the estimated value of the contract, framework agreement or dynamic purchasing system (net of value added tax) at the relevant time is less than the relevant threshold.

    (2) For the purposes of paragraph (1) the relevant threshold is the sum mentioned in Article 7(c)
of the Public Sector Directive”(f) in the case of a public works contract and a public works contract subsidised as referred to in regulation 34.

    (3) Subject to paragraph (4), the relevant threshold for the purposes of paragraph (1) in the case of a Part A services contract is—



(a) the sum mentioned in Article 7(a) of the Public Sector Directive where offers are sought by Schedule 1 entities; and

(b) the sum mentioned in Article 7(b) of the Public Sector Directive where offers are sought by any other contracting authority.



    (4) For the purposes of paragraph (1) the relevant threshold is the sum mentioned in Article 7(b) of the Public Sector Directive in the case of a public services contract which is—



(a) subsidised as referred to in regulation 34;

(b) for telecommunications services specified under CPV references 64221000-1,
64227000-3, 64228000-0, 64228100-1, 64228200-2 within category 5 of Part A of
Schedule 3;

(c) for research and development services specified in category 8 of Part A of Schedule 3; or

(d) a Part B services contract to which regulation 34 does not apply.



    (5) For the purposes of paragraph (1) the relevant threshold in the case of a public supply contract is—



(a) the sum mentioned in Article 7(a) of the Public Sector Directive where offers are sought by—


(i) Schedule 1 entities; and

(ii) the Secretary of State for Defence, but only in relation to a contract for the purchase or hire of goods specified in Schedule 5; and


(5A) References in paragraphs (2) to (5) to the Public Sector Directive are references to that Directive as amended from time to time.

(b) the sum mentioned in Article 7(b)
of the Public Sector Directive in relation to all other contracts.



    (6) The value in pounds sterling of any amount expressed in these Regulations in euro shall be calculated by reference to the rate for the time being applying for the purposes of the Public Sector Directive as published from time to time in the Official Journal.

    (7) For the purposes of paragraph (1) the estimated value of a public contract shall be the value of the total consideration payable, net of value added tax (calculated in accordance with this regulation), which the contracting authority expects to be payable under the contract.

    (8) In determining the value of the total consideration which the contracting authority expects to be payable under a public contract it shall, where appropriate, take account of—



(a) any form of option;

(b) any renewal of the contract;

(c) any prize or payment awarded by the contracting authority to the economic operator;

(d) the premium payable and other forms of remuneration for insurance services;

(e) fees, commission, interest or other forms of remuneration payable for banking and other financial services; and

(f) fees, commission or other forms of remuneration payable for design services.



    (9) For the purposes of paragraph (1) the estimated value of a public supply contract for the hire of goods is—



(a) the value of the consideration which the contracting authority expects to be payable under the contract if the term of the contract is fixed for 12 months or less;

(b) the value of the consideration which the contracting authority expects to be payable under the contract if the term of the contract is fixed for more than 12 months; or

(c) the value of the monthly consideration payable under the contract multiplied by 48 if the term of the contract is indefinite or uncertain at the time the contract is entered into.



    (10) For the purposes of paragraph (1) the estimated value of a public services contract which does not indicate a total price is—



(a) the aggregate of the value of the consideration which the contracting authority expects to be payable under the contract if the term of the contract is fixed for 48 months or less; or

(b) the value of the consideration which the contracting authority expects to be payable in respect of each month of the period multiplied by 48 if the term of the contract is fixed for more than 48 months, or over an indefinite period.



    (11) Subject to paragraphs (12) and (15), where a contracting authority has a single requirement for goods or services or for the carrying out of a work or works and a number of contracts have been entered into or are to be entered into to fulfil that requirement, the estimated value for the purposes of paragraph (1) of each of those contracts is the aggregate of the value of the consideration which the contracting authority expects to be payable under each of those contracts.

    (12) Paragraph (11) does not apply to any contract (unless the contracting authority chooses to apply that paragraph to a contract) if the contract has an estimated value of less than—



(a) 80,000 euro for a public services contract or a public supply contract; or

(b) 1,000,000 euro for a public works contract;



and the aggregate value of that contract and any other such contract is less than 20% of the aggregate value of the consideration which the contracting authority has given or expects to be payable under all the contracts entered into or to be entered into to fulfil the single requirement for goods, services or for the carrying out of work or works.

    (13) Subject to paragraph (15), where a contracting authority has a requirement over a period for goods or services and for that purpose enters into—



(a) a series of contracts; or

(b) a contract which under its terms is renewable;



the estimated value for the purposes of paragraph (1) of the contract shall be the amount calculated under paragraph (14).

    (14) The contracting authority shall calculate the amount referred to in paragraph (13) either—



(a) by taking the aggregate of the value of the consideration payable under the contracts which—


(i) have similar characteristics; and

(ii) are for the same type of goods or services;



during the last financial year of the contracting authority ending before, or the period of 12 months ending immediately before, the relevant time, and by adjusting that amount to take account of any expected changes in quantity and cost of the goods to be purchased or hired or services to be provided in the period of 12 months commencing with the relevant time; or

(b) by estimating the aggregate of the value of the consideration which the contracting authority expects to be payable under contracts which have similar characteristics, and which are for the same type of goods or services during—



(i) in the case of public supply contracts, the period of 12 months from the first date of the delivery of the goods to be purchased or hired, or in the case of public services contracts, from the first date on which the services will be performed; or

(ii) the financial year if that is longer than 12 months.



    (15) Notwithstanding paragraphs (11) and (13), in relation to a public supply contract or a public services contract, when the goods or services are required for the sole purposes of a discrete operational unit within the organisation of a contracting authority and—



(a) the decision whether to procure those goods or services has been devolved to such a unit; and

(b) that decision is taken independently of any other part of the contracting authority;



the valuation methods described in paragraphs (11) and (14) shall be adapted by aggregating only the value of the consideration which was payable or the contracting authority expects to be payable, as the case may be, under a public supply contract or a public services contract which was or is required for the sole purpose of that unit.

    (16) Where a contracting authority intends to provide any goods to the economic operator awarded a public works contract for the purpose of carrying out that contract, the value of the consideration of the public works contract for the purposes of paragraphs (7) and (11) shall be taken to include the estimated value at the relevant time of those goods.

    (17) The relevant threshold for the purposes of paragraph (1) for a framework agreement or a dynamic purchasing system is the threshold for—



(a) a public works contract, where the framework agreement or dynamic purchasing system relates to the carrying out of work or works;

(b) a public services contract, where the framework agreement or dynamic purchasing system relates to the provision of services; or

(c) a public supply contract, where the framework agreement or dynamic purchasing system relates to the purchase or hire of goods.



    (18) The estimated value of a framework agreement or dynamic purchasing system is the aggregate of the values estimated in accordance with this regulation of all the contracts which could be entered into under the framework agreement or dynamic purchasing system.

    (19) A contracting authority shall not enter into separate contracts nor exercise a choice under a valuation method with the intention of avoiding the application of these Regulations to those contracts.

    (20) The relevant time for the purposes of paragraphs (1), (14) and (16) means the date on which a contract notice would be sent to the Official Journal if the requirement to send such a notice applied to that contract in accordance with these Regulations.





PART 2
TECHNICAL SPECIFICATIONS
Technical specifications in the contract documents
     9. —(1) In this regulation—


"common technical specification" means a technical specification drawn up in accordance with a procedure recognised by the member States with a view to uniform application in all member States and which has been published in the Official Journal;
"European standard" means a standard adopted by a European standards organisation and made available to the general public;
"European technical approval" means an approval of the fitness for use of a product, issued by an approval body designated for the purpose by a member State, following a technical assessment of whether the product fulfils the essential requirements for building works, having regard to the inherent characteristics of the product and the defined conditions of application and use;
"international standard" means a standard adopted by an international standards organisation and made available to the general public;
"British standard" means a standard adopted by a British standards organisation and made available to the general public;
"recognised bodies" means test and calibration laboratories and certification and inspection bodies which comply with applicable European standards and "recognised body" shall be interpreted accordingly;
"standard" means a technical specification approved by a recognised standardisation body for repeated and continuous application, compliance with which is not compulsory and which is an international standard, a European Standard or a British standard;
"technical reference" means any product produced by European standardisation bodies, other than official standards, according to procedures adopted for the development of market needs; and
"technical specifications" means—
(a) in the case of a public services contract or a public supply contract, a specification in a document defining the required characteristics of materials, goods or services, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of a product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods and conformity assessment procedures; and

(b) in the case of a public works contract, the totality of the technical prescriptions contained, in particular, in the contract documents, defining the characteristics required of the work, works, materials or goods, which permits the work, works, materials or goods to be described in a manner such that it fulfils the use for which it is intended by the contracting authority and these characteristics shall include—


(i) levels of environmental performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions and production processes and methods;

(ii) rules relating to design and costing, the test, inspection and acceptance conditions for work or works and methods or techniques of construction; and

(iii) all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished work or works and to the materials or parts which they involve.



    (2) Where a contracting authority wishes to lay down technical specifications which must be met by—



(a) the services to be provided under a public services contract and the materials and goods used in or for it;

(b) the goods to be purchased or hired under a public supply contract; or

(c) the work or works to be carried out under a public works contract and the materials and goods used in or for it;



it shall specify those technical specifications in the contract documents.

    (3) When laying down technical specifications in accordance with paragraph (2), a contracting authority shall, wherever possible, take into account accessibility criteria for disabled persons or the suitability of the design for all users.

    (4) A contracting authority shall ensure that technical specifications afford equal access to economic operators and do not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

    (5) Subject to technical requirements which are mandatory in the United Kingdom and to the extent that those requirements are compatible with Community obligations, a contracting authority shall define the technical specifications required for a contract in accordance with paragraph (6), (7), (8) or (9).

    (6) A contracting authority may define the technical specifications referred to in paragraph (5)—



(a) by reference to technical specifications in the following order of preference—


(i) British standards transposing European standards;

(ii) European technical approvals;

(iii) common technical specifications;

(iv) international standards; or

(v) other technical reference systems established by the European standardisation bodies; or



(b) in the absence of the technical specifications referred to in sub-paragraph (a), by reference to the following technical specifications—



(i) British standards;

(ii) British technical approvals; or

(iii) British technical specifications relating to the design, calculation and execution of the work or works and use of the products;



and each reference to a technical specification made in accordance with this paragraph shall be accompanied by the words "or equivalent".

    (7) A contracting authority may define the technical specifications referred to in paragraph (5) in terms of performance or functional requirements (which may include environmental characteristics) provided that the requirements are sufficiently precise to allow an economic operator to determine the subject of the contract and a contracting authority to award the contract.

    (8) A contracting authority may define the technical specifications referred to in paragraph (5) by defining performance and functional requirements as referred to in paragraph (7) with reference to the technical specifications referred to in paragraph (6) as a means of presuming conformity with such performance or functional requirements.

    (9) A contracting authority may define the technical specifications referred to in paragraph (5) by reference to technical specifications referred to in paragraph (6) for certain characteristics and by reference to performance or functional requirements referred to in paragraph (7) for other characteristics.

    (10) Where a contracting authority defines technical specifications as referred to in paragraph (6), it shall not reject an offer on the basis that the materials, goods or services offered do not comply with those technical specifications if an economic operator proves to the satisfaction of the contracting authority by any appropriate means that the one or more solutions that economic operator proposes in its tender satisfy the requirements of those technical specifications in an equivalent manner.

    (11) Where a contracting authority defines technical specifications in terms of performance or functional requirements as referred to in paragraph (7), it shall not reject an offer for materials, goods, services, work or works which complies with—



(a) a British standard transposing a European standard;

(b) a European technical approval;

(c) a common technical specification;

(d) an international standard; or

(e) a technical reference system established by a European standardisation body;



if those technical specifications address the performance or functional requirements referred to by the contracting authority and the economic operator proves in its tender to the satisfaction of the contracting authority by any appropriate means that the work, works, materials, goods or services meet the performance or functional requirements of the contracting authority.

    (12) Where a contracting authority lays down environmental characteristics in terms of performance or functional requirements as referred to in paragraph (7), it may use the detailed technical specifications, or if necessary, parts thereof, as defined by European, national or multi- national eco-labels or by any other eco-label, provided that—



(a) those technical specifications are appropriate to define the characteristics of the materials, goods or services that are the object of the contract;

(b) the eco-label requirements are drawn up on the basis of scientific information;

(c) the eco-label is adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations, are able to participate; and

(d) the technical specifications are accessible to any party interested.



    (13) A contracting authority may indicate in the contract documents that the materials, goods or services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents and shall accept any other appropriate means of proof that the materials, goods or services comply with those technical specifications.

    (14) The term "appropriate means" referred to in paragraphs (10), (11) and (13) includes a technical dossier of a manufacturer or a test report from a recognised body.

    (15) A contracting authority shall accept certificates from recognised bodies established in other member States when considering whether a tender for a contract conforms with the technical specifications laid down by the contracting authority in accordance with paragraph (2).

    (16) Subject to paragraph (17), a contracting authority shall not lay down technical specifications in the contract documents which refer to—



(a) materials or goods of a specific make or source or to a particular process; or

(b) trademarks, patents, types, origin or means of production;



which have the effect of favouring or eliminating particular economic operators.

    (17) Notwithstanding paragraph (16), exceptionally, a contracting authority may incorporate the references referred to in paragraph (16) into the technical specifications in the contract documents, provided that the references are accompanied by the words "or equivalent", where—



(a) the subject of the contract makes the use of such references indispensable; or

(b) the subject of the contract cannot otherwise be described by reference to technical specifications which are sufficiently precise and intelligible to all economic operators.



Variants
     10. —(1) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous in accordance with regulation 30(1)(a), it shall indicate in the contract notice whether or not it authorises economic operators to submit offers which contain variants on the requirements specified in the contract documents and a contracting authority shall not accept an offer which contains a variant without that indication.

    (2) Where a contracting authority authorises a variant in accordance with paragraph (1) it shall state in the contract documents the minimum requirements to be met by the variants and any specific requirements for the presentation of an offer which contains variants.

    (3) A contracting authority shall only consider variants which meet its minimum requirements as stated in the contract documents in accordance with paragraph (2).

    (4) A contracting authority shall not reject an offer which contains variants on the requirements specified in the contract documents on the ground that—



(a) where it intends to award a public services contract, the offer would lead to the award of a public supply contract; or

(b) where it intends to award a public supply contract, the offer would lead to the award of a public services contract.







PART 3
PROCEDURES LEADING TO THE AWARD OF A PUBLIC CONTRACT
Prior information notices
     11. —(1) Subject to paragraphs (4), (5) and (6), a contracting authority shall send a notice in the form of the prior information notice in Annex I to Commission Regulation (EC) No 1564/2005 and containing the information therein specified to the Commission or publish it on that contracting authority's buyer profile as soon as possible after—


(a) the beginning of the financial year in the case of public supply contracts or public services contracts or framework agreements for the purchase or hire of goods or for the provision of services; or

(b) the decision authorising the programme of public works contracts or framework agreements for the carrying out of work or works, in the case of public works contracts or framework agreements for the carrying out of work or works.



    (2) The notice referred to in paragraph (1) shall contain information in respect of—



(a) the public supply contracts, the public services contracts or the framework agreements referred to in paragraph (1)(a) which the contracting authority expects to award or conclude during the period of 12 months beginning with the date of the notice; and

(b) the public works contracts or the framework agreements referred to in paragraph (1)(b) which the contracting authority expects to award or conclude;



and that notice shall be sub-divided to give that information separately for each product area of goods by reference to the CPV nomenclature of each category of works or services as specified in Schedules 2 and 3.

    (3) Where a contracting authority publishes a notice on its buyer profile in accordance with paragraph (1), it shall also send a notice in the form of a notice on a buyer profile in Annex VIII to Commission Regulation (EC) No 1564/2005 informing the Commission by electronic means in accordance with the format and procedure for sending notices specified in paragraph (3) of Annex VIII to the Public Sector Directive of that publication.

    (4) The obligation to publish a prior information notice in accordance with paragraph (1) applies only to proposed public contracts or framework agreements which are not excluded from the application of these Regulations by regulation 6 or 8 and where, at the date of despatch of the notice—



(a) the total consideration which the contracting authority expects to be payable under—


(i) public supply contracts or framework agreements for the purchase or hire of goods falling within the same product area; or

(ii) Part A services contracts or framework agreements for the provision of services falling within the same category specified in Part A of Schedule 3;



is equal to or exceeds 750,000 euro; or

(b) the total consideration which the contracting authority expects to be payable under public works contracts or framework agreements for the carrying out of work or works is equal to or exceeds the sum mentioned in Article 7(c) of the Public Sector Directive as amended from
time to time.



    (5) The obligation to publish a prior information notice applies only where the contracting authority takes the option of shortening the time limits for the receipt of tenders in accordance with regulation 15(7) or 16(18).

    (6) This regulation does not apply to a proposed public contract where the procedure for the award of the contract is the negotiated procedure without the prior publication of a contract notice in accordance with regulation 14.

Selection of contract award procedures
     12. —(1) Subject to paragraph (2), for the purpose of seeking offers in relation to a proposed public contract, a contracting authority shall use—



(a) the open procedure in accordance with regulation 15; or

(b) the restricted procedure in accordance with regulation 16;



in all circumstances, except where it may use—



(i) the negotiated procedure in accordance with regulation 17 in the circumstances referred to in regulations 13 and 14; or

(ii) the competitive dialogue procedure in accordance with regulation 18.



    (2) Paragraph (1) does not apply in the case of a subsidised housing scheme works contract which is subject to regulation 35.

Use of the negotiated procedure with prior publication of a contract notice
     13. A contracting authority may use the negotiated procedure with the prior publication of a contract notice in accordance with regulation 17(3) in the following circumstances—



(a) subject to regulation 14(1)(a)(i), in the event that the procedure leading to the award of a contract by the contracting authority using the open procedure, the restricted procedure or the competitive dialogue procedure was discontinued because of—


(i) irregular tenders; or

(ii) unacceptable tenders following an evaluation made in accordance with regulation 15(11), 16(7) or 18(10);



but only if the original terms of the proposed contract offered in the discontinued procedure have not been substantially altered in the negotiated procedure;

(b) exceptionally, when the nature of the work or works to be carried out, the goods to be purchased or hired or the services to be provided under the contract or the risks attaching to them are such as not to permit prior overall pricing;

(c) in the case of a public services contract, when the nature of the services to be provided, in particular in the case of services specified in category 6 of Part A of Schedule 3 and intellectual services, such as services involving the design of work or works, is such that specifications cannot be established with sufficient precision to permit the award of the contract using the open procedure or the restricted procedure; or

(d) in the case of a public works contract, when the work or works are to be carried out under the contract solely for the purpose of research, testing or development but not with the aim of ensuring profitability or to recover research and development costs.



Use of the negotiated procedure without prior publication of a contract notice
     14. —(1) A contracting authority may use the negotiated procedure without the prior publication of a contract notice in accordance with regulation 17(3) in the following circumstances—



(a) in the case of a public contract—


(i) when a contracting authority is using the negotiated procedure in accordance with regulation 13(a) and invites to negotiate the contract all of, and only, those economic operators which submitted a tender following an invitation made during the course of the discontinued open procedure, restricted procedure or competitive dialogue procedure (not being a tender which was excluded in accordance with regulation 15(11), 16(7) or 18(10));

(ii) subject to paragraph (2), in the absence of tenders, suitable tenders or applications in response to an invitation to tender by the contracting authority using the open procedure or the restricted procedure but only if the original terms of the proposed contract offered in the discontinued procedure have not been substantially altered in the negotiated procedure;

(iii) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the public contract may be awarded only to a particular economic operator;

(iv) when (but only if it is strictly necessary) for reasons of extreme urgency brought about by events unforeseeable by, and not attributable to, the contracting authority, the time limits specified in—


(aa) regulation 15 for the open procedure;

(bb) regulation 16 for the restricted procedure; or

(cc) regulation 17 for the negotiated procedure;



cannot be met;



(b) in the case of a public supply contract—



(i) when the goods to be purchased or hired under the contract are to be manufactured solely for the purpose of research, experiment, study or development but not when the goods are to be purchased or hired with the aim of ensuring profitability or to recover research and development costs;

(ii) subject to paragraph (3), when the goods to be purchased or hired under the contract are required by the contracting authority as a partial replacement for, or in addition to, existing goods or an installation and when to obtain the goods from a supplier other than the supplier which supplied the existing goods or the installation would oblige the contracting authority to acquire goods having different technical characteristics which would result in—


(aa) incompatibility between the existing goods or the installation and the goods to be purchased or hired under the contract; or

(bb) disproportionate technical difficulties in the operation and maintenance of the existing goods or the installation;



(iii) for the purchase or hire of goods quoted and purchased on a commodity market;

(iv) to take advantage of particularly advantageous terms for the purchase of goods in a closing down sale or in a sale brought about because a supplier is subject to a procedure referred to in regulation 23(4)(a), (b) or (c);



(c) in the case of a public services contract, when the rules of a design contest require the contract to be awarded to the successful contestant or to one of the successful contestants, provided that all successful contestants are invited to negotiate the contract;

(d) in the case of a public works contract or a public services contract—



(i) subject to paragraph (4), when a contracting authority wants an economic operator which has entered into a public works contract or a public services contract with the contracting authority to carry out additional work or works or provide additional services which were not included in the project initially considered or in the original public works contract or public services contract but which through unforeseen circumstances have become necessary, and such work, works or services—


(aa) cannot for technical or economic reasons be carried out or provided separately from those under the original contract without major inconvenience to the contracting authority; or

(bb) can be carried out or provided separately from those under the original contract but are strictly necessary to the later stages of the performance of that contract; and



(ii) subject to paragraph (5), when a contracting authority wants an economic operator which has entered into a public works contract or a public services contract with that contracting authority to carry out new work or works or provide new services which are a repetition of the work or works carried out or the services provided under the original contract and which are in accordance with the project for the purpose of which the first contract was entered into.



    (2) A contracting authority using the negotiated procedure in accordance with paragraph (1)(a)(ii) shall, if the Commission requests it, submit a report recording the fact that it has used that procedure to the Office of Government Commerce for onward transmission to the Commission.

    (3) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(b)(ii) if the term of the proposed contract, or the term of that contract and of any other contract entered into for the same purpose, is more than three years, unless there are reasons why it is unavoidable that this period should be exceeded.

    (4) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(d)(i), where the aggregate value of the consideration to be given under contracts for the additional work, works or services exceeds 50 per cent of the value of the consideration payable under the original contract.

    (5) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(d)(ii) unless—



(a) the contract notice relating to the original contract stated that a public works contract or a public services contract for new work, works or services which would be a repetition of the work or works carried out or the services provided under the original contract may be awarded using the negotiated procedure in accordance with paragraph (1)(d)(ii);

(b) in determining the estimated value of the original contract for the purposes of regulation 8, the contracting authority took into account the value of the consideration which it expected to be payable for the new work, works or services; and

(c) the procedure for the award of the new contract is commenced within 3 years of the original contract being entered into.



The open procedure
     15. —(1) A contracting authority using the open procedure shall comply with this regulation.

    (2) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention, a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005, inviting tenders and containing the information therein specified.

    (3) Subject to paragraphs (5), (6) and (7), the date which the contracting authority fixes as the last date for the receipt by it of tenders made in response to the contract notice shall be specified in the contract notice and shall be not less than 52 days from the date of despatch of the notice.

    (4) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt by it of tenders.

    (5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive [25], the time limits referred to in paragraphs (3) and (7) may be reduced by 7 days.

    (6) The contracting authority may reduce the time limits for the receipt by it of tenders by 5 days provided that—



(a) the contracting authority offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.



    (7) Where—



(a) the contracting authority has published a prior information notice in accordance with regulation 11;

(b) the prior information notice contained as much of the information referred to in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005 as was available at the time of publication; and

(c) the prior information notice was sent to the Official Journal at least 52 days and not more than 12 months before the date on which the contract notice provided for in paragraph (2) is despatched;



the contracting authority may substitute for the period of not less than 52 days specified in paragraph (3), a shorter period of generally not less than 36 days and in any event not less than 22 days.

    (8) Where the contracting authority does not offer unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (6), the contracting authority shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator, provided that the documents are requested in good time before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (9) The contracting authority shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator, provided that the request is received in sufficient time to enable the contracting authority to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (10) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—



(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraphs (8) and (9) and, for whatever reason, the contract documents or further information are not supplied in accordance with those paragraphs; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.



    (11) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude a tender from the evaluation of offers made in accordance with regulation 30 only if the economic operator—



(a) may be treated as ineligible to tender on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—


(i) economic and financial standing; or

(ii) technical or professional ability.



    (12) The contracting authority may require an economic operator to satisfy minimum levels of—



(a) economic and financial standing; or

(b) technical or professional ability;



provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (13) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (6).

The restricted procedure
     16. —(1) A contracting authority using the restricted procedure shall comply with this regulation.

    (2) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention, a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005, inviting requests to be selected to tender and containing the information therein specified.

    (3) Subject to paragraph (5), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to tender shall be specified in the contract notice and shall be not less than 37 days from the date of the despatch of the notice.

    (4) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt of requests to be selected to tender and for receipt by it of tenders.

    (5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (3) may be reduced by 7 days.

    (6) Where compliance with the minimum time limit of 37 days referred to in paragraph (3) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit—



(a) a time limit of not less than 15 days from the date of despatch of the contract notice; or

(b) where the contracting authority has transmitted the contract notice by electronic means in accordance with paragraph (5), a time limit of not less than 10 days from the date of despatch of the contract notice.



    (7) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to tender only if the economic operator—



(a) may be treated as ineligible to tender on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—


(i) economic and financial standing; or

(ii) technical or professional ability.



    (8) The contracting authority shall make the selection of the economic operators to be invited to tender in accordance with regulations 23, 24, 25 and 26 and shall award the contract in accordance with regulation 30.

    (9) Where there is a sufficient number of economic operators suitable to be selected to be invited to tender, the contracting authority may limit the number of economic operators which it intends to invite to tender provided that the contract notice specifies—



(a) the objective and non-discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which shall be not less than 5, which the contracting authority intends to invite to tender and, where appropriate, the maximum number.



    (10) The contracting authority shall ensure that the number of economic operators invited to tender is—



(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number specified by the contracting authority in accordance with paragraph (9)(b).



    (11) Subject to paragraph (10)(a), where—



(a) the contracting authority carries out a selection in accordance with regulations 23, 24, 25 and 26; and

(b) the number of economic operators selected to be invited to tender is less than the minimum number specified by the contracting authority in the contract notice;



that contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

    (12) The contracting authority may require an economic operator to satisfy minimum levels of—



(a) economic and financial standing; or

(b) technical or professional ability;



provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (13) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to tender for the contract and the invitation shall—



(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.



    (14) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

    (15) The contracting authority shall include the following information in the invitation—



(a) the final date for the receipt by it of tenders, the address to which they must be sent and the one or more languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (2);

(c) an indication of the information to be included with the tender which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (2).



    (16) Subject to paragraphs (18) and (19), the date which the contracting authority fixes as the last date for the receipt by it of tenders and which shall be specified in the invitation to tender in accordance with paragraph (15)(a), shall be not less than 40 days from the date of the despatch of the invitation.

    (17) Where compliance with the minimum time limit of 40 days referred to in paragraph (16) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit, a time limit of not less than 10 days from the date of despatch of the invitation.

    (18) Where—



(a) the contracting authority has published a prior information notice in accordance with regulation 11;

(b) the prior information notice contained as much of the information referred to in the form of a contract notice in Annex II to Commission Regulation (EC) No 1564/2005 as was available at the time of publication; and

(c) the prior information notice was sent to the Official Journal at least 52 days and not more than 12 months before the date on which the contract notice provided for in paragraph (2) is despatched;



the contracting authority may substitute for the period of not less that 40 days in paragraph (16), a period of generally not less than 36 days and in any event not less than 22 days.

    (19) The contracting authority may reduce the time limits for the receipt by it of tenders referred to in paragraphs (16) and (18) by 5 days provided that—



(a) the contracting authority offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.



    (20) The contracting authority or entity referred to in paragraph (13)(c) shall supply such further information relating to the contract documents as may be reasonably requested by an economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.

    (21) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—



(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraph (20) and, for whatever reason, the contract documents or further information are not supplied in accordance with that paragraph; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.



    (22) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (19).

The negotiated procedure
     17. —(1) Subject to paragraph (2), a contracting authority using the negotiated procedure shall comply with this regulation.

    (2) A contracting authority using the negotiated procedure in accordance with regulation 14 need only comply with paragraphs (9) and (10) of this regulation.

    (3) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention, a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005 inviting requests to be selected to negotiate and containing the information therein specified.

    (4) The contracting authority shall indicate whether the negotiated procedure will take place in successive stages in accordance with paragraph (22)—



(a) in the contract notice; or

(b) in that notice and the contract documents.



    (5) Subject to paragraphs (7) and (8), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to negotiate shall be specified in the contract notice and shall be not less than 37 days from the date of despatch of the notice.

    (6) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract when fixing time limits for the receipt by it of requests to be selected to negotiate the contract.

    (7) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (5) may be reduced by 7 days.

    (8) Where compliance with the minimum time limit of 37 days referred to in paragraph (5) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit—



(a) a time limit of not less than 15 days from the date of despatch of the contract notice; or

(b) where the contracting authority has transmitted the contract notice by electronic means in accordance with paragraph (7), a time limit of not less than 10 days from the date of despatch of the contract notice.



    (9) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to negotiate the contract only if the economic operator—



(a) may be treated as ineligible on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—


(i) economic and financial standing; or

(ii) technical or professional ability.



    (10) The contracting authority shall make the selection of the economic operators to be invited to negotiate in accordance with regulations 23, 24, 25 and 26 and shall award the contract in accordance with regulation 30.

    (11) Where there is a sufficient number of economic operators suitable to be selected to negotiate, the contracting authority may limit the number of economic operators which it intends to invite to negotiate the contract provided that the contract notice specifies—



(a) the objective and non-discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which shall be not less than 3, which the contracting authority intends to invite to negotiate and, where appropriate, the maximum number.



    (12) The contracting authority shall ensure that the number of economic operators invited to negotiate is—



(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number specified by the contracting authority in accordance with paragraph (11)(b).



    (13) Subject to paragraph (12)(a), where—



(a) the contracting authority carries out a selection in accordance with regulations 23, 24, 25 and 26; and

(b) the number of economic operators selected to be invited to negotiate is less than the minimum number specified by the contracting authority in the contract notice;



that contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

    (14) The contracting authority may require an economic operator to satisfy minimum levels of—



(a) economic and financial standing; or

(b) technical or professional ability;



provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (15) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to negotiate and the invitation shall—



(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.



    (16) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

    (17) The contracting authority shall include in the invitation—



(a) the final date for the receipt by it of replies, the address to which they must be sent and the one or more languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (3);

(c) an indication of the information to be included with the reply which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (3).



    (18) The contracting authority or entity referred to in paragraph (15)(c) shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it—



(a) not less than 6 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders; or

(b) in the case of urgency where paragraph (8) applies, not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.



    (19) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—



(a) an economic operator requests the contract documents in sufficient time to allow a contracting authority to respond in accordance with paragraph (18) and, for whatever reason, the contract documents are not supplied in accordance with that paragraph; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.



    (20) Where the contracting authority needs to identify the best tender in order to award the public contract in accordance with regulation 30(1), that contracting authority shall negotiate with economic operators which have submitted tenders with the aim of adapting the tenders to the requirements specified in the contract documents.

    (21) During any negotiations which take place in accordance with this regulation, a contracting authority shall ensure equal treatment among all economic operators and in particular, shall not provide information in a discriminatory manner which may give some economic operators an advantage over other economic operators.

    (22) The contracting authority may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria in the contract documents.

    (23) Where the contracting authority provides for the negotiated procedure to take place in successive stages in accordance with paragraph (22), it shall ensure that the number of economic operators to be invited to negotiate the contract at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of economic operators to do so.

The competitive dialogue procedure
     18. —(1) In this regulation—



"particularly complex contract" means a contract where a contracting authority is not objectively able to—
(a) define the technical means in accordance with regulation 9(7), (8) and (9) capable of satisfying its needs or objectives; or

(b) specify either the legal or financial make-up of a project or both; and


"participant" means an economic operator selected by a contracting authority using the procedure referred to in paragraph (2) to participate in the competitive dialogue procedure.

    (2) Where a contracting authority wishes to award a particularly complex contract and considers that the use of the open or restricted procedure will not allow the award of that contract, the contracting authority may use the competitive dialogue procedure.

    (3) A contracting authority using the competitive dialogue procedure shall comply with the following paragraphs of this regulation.

    (4) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal, as soon as possible after forming the intention, a notice in the form of a contract notice in Annex II to Commission Regulation (EC) No 1564/2005 inviting requests to participate and containing the information therein specified.

    (5) The contracting authority shall specify its needs and requirements in the contract notice and shall define those needs and requirements—



(a) in the contract notice;

(b) in the descriptive document; or

(c) in both those documents.



    (6) The contracting authority shall indicate that it may provide for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (22)—



(a) in the contract notice; or

(b) in that notice and the descriptive document.



    (7) Subject to paragraph (9), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to participate shall be specified in the contract notice and shall be not less than 37 days from the date of the despatch of the notice.

    (8) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract when fixing time limits for the receipt by it of requests to be selected to participate in the dialogue.

    (9) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (7) may be reduced by 7 days.

    (10) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to participate in the dialogue only if the economic operator—



(a) may be treated as ineligible on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—


(i) economic and financial standing; or

(ii) technical or professional ability.



    (11) The contracting authority shall make the selection of the economic operators to be invited to participate in the dialogue in accordance with regulations 23, 24, 25 and 26.

    (12) Where there is a sufficient number of economic operators suitable to be selected to participate in the dialogue, the contracting authority may limit the number of economic operators which it intends to invite to participate in the dialogue provided that the contract notice specifies—



(a) the objective and non-discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which shall be not less than 3, which the contracting authority intends to invite to participate in the dialogue and, where appropriate, the maximum number.



    (13) The contracting authority shall ensure that the number of economic operators invited to participate in the dialogue is—



(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number specified by the contracting authority in accordance with paragraph (12)(b).



    (14) Subject to paragraph (13)(a), where—



(a) the contracting authority carries out a selection in accordance with regulations 23, 24, 25 and 26; and

(b) the number of economic operators selected to be invited to participate in the dialogue is less than the minimum number specified by the contracting authority in the contract notice;



that contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

    (15) The contracting authority may require an economic operator to satisfy minimum levels of—



(a) economic and financial standing; or

(b) technical or professional ability;



provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (16) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to participate in the dialogue and the invitation shall—



(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.



    (17) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

    (18) The contracting authority shall include the following information in the invitation—



(a) the date specified for the commencement of the competitive dialogue, the address to which replies must be sent and the one or more languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (4);

(c) an indication of the information to be included with the reply which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (4).



    (19) The contracting authority or entity referred to in paragraph (16)(c) shall supply such further information to the economic operator relating to the contract documents or the descriptive document as may reasonably be requested by that economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 6 days before the date specified in the invitation to tender as the final date of the receipt by it of tenders.

    (20) The contracting authority shall open with the participants selected in accordance with regulations 23, 24, 25 and 26, a dialogue the aim of which shall be to identify and define the means best suited to satisfying its needs.

    (21) During the competitive dialogue procedure, a contracting authority—



(a) may discuss all aspects of the contract with the participants selected;

(b) shall ensure equality of treatment among all participants and in particular, shall not provide information in a discriminatory manner which may give some participants an advantage over others; and

(c) shall not reveal to the other participants solutions proposed or any confidential information communicated by a participant without that participant's agreement.



    (22) The contracting authority may provide for the competitive dialogue procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria in the contract notice or in the descriptive document.

    (23) Where the contracting authority provides for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (22), it shall ensure that the number of economic operators to be invited to participate at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of economic operators to do so.

    (24) The contracting authority may continue the competitive dialogue procedure until it can identify one or more solutions, if necessary after comparing them, capable of meeting its needs.

    (25) Where the contracting authority declares that the dialogue is concluded, it shall—



(a) inform each participant that the dialogue is concluded;

(b) request each participant to submit a final tender containing all the elements required and necessary for the performance of the project on the basis of any solution presented and specified during the dialogue; and

(c) specify in the invitation to submit a tender the final date for the receipt by it of tenders, the address to which they must be sent and the language or languages in which they must be drawn up.



    (26) The contracting authority may request a participant to clarify, specify or fine-tune a tender referred to in paragraph (25)(b), but such clarification, specification, fine-tuning or additional information shall not involve changes to the basic features of the tender or the call for tender when those variations are likely to distort competition or have a discriminatory effect.

    (27) The contracting authority shall assess the tenders received on the basis of the award criteria specified in the contract notice or descriptive document and shall award the contract to the participant which submits the most economically advantageous tender in accordance with regulation 30(1)(a).

    (28) The contracting authority may request the participant identified as having submitted the most economically advantageous tender to clarify aspects of that tender or confirm commitments contained in the tender provided that this does not have the effect of modifying substantial aspects of the tender or of the call for tender and does not risk distorting competition or causing discrimination.

    (29) The contracting authority may specify that payments may be made to a participant in respect of the participant's expenses incurred in participating in the competitive dialogue procedure.

Framework agreements
     19. —(1) A contracting authority which intends to conclude a framework agreement shall comply with this regulation.

    (2) Where the contracting authority intends to conclude a framework agreement, it shall—



(a) follow one of the procedures set out in regulation 15, 16, 17 or 18 up to (but not including) the beginning of the procedure for the award of any specific contract set out in this regulation; and

(b) select an economic operator to be party to a framework agreement by applying award criteria set in accordance with regulation 30.



    (3) Where the contracting authority awards a specific contract based on a framework agreement, it shall—



(a) comply with the procedures set out in this regulation; and

(b) apply those procedures only to the economic operators which are party to the framework agreement.



    (4) When awarding a specific contract on the basis of a framework agreement neither the contracting authority nor the economic operator shall include in that contract terms that are substantially amended from the terms laid down in that framework agreement.

    (5) Where the contracting authority concludes a framework agreement with one economic operator—



(a) it shall award any specific contract within the limits of the terms laid down in the framework agreement; and

(b) in order to award a specific contract, the contracting authority may consult in writing the economic operator which is party to the framework agreement requesting that economic operator to supplement its tender if necessary.



    (6) Where the contracting authority concludes a framework agreement with more than one economic operator, the minimum number of economic operators shall be 3, insofar as there is a sufficient number of—



(a) economic operators to satisfy the selection criteria; or

(b) admissible tenders which meet the award criteria.



    (7) Where the contracting authority concludes a framework agreement with more than one economic operator, a specific contract may be awarded—



(a) by application of the terms laid down in the framework agreement without re-opening competition; or

(b) where not all the terms of the proposed contract are laid down in the framework agreement, by re-opening competition between the economic operators which are parties to that framework agreement and which are capable of performing the proposed contract in accordance with paragraphs (8) and (9).



    (8) Where the contracting authority is following the procedure set out in paragraph (7)(b), it shall re-open the competition on the basis of the same or, if necessary, more precisely formulated terms, and where appropriate other terms referred to in the contract documents based on the framework agreement.

    (9) Where the contracting authority is following the procedure set out in paragraph (7)(b), for each specific contract to be awarded it shall—



(a) consult in writing the economic operators capable of performing the contract and invite them within a specified time limit to submit a tender in writing for each specific contract to be awarded;

(b) set a time limit for the receipt by it of the tenders which takes into account factors such as the complexity of the subject matter of the contract and the time needed to send in tenders;

(c) keep each tender confidential until the expiry of the time limit for the receipt by it of tenders; and

(d) award each contract to the economic operator which has submitted the best tender on the basis of the award criteria specified in the contract documents based on the framework agreement.



    (10) The contracting authority shall not conclude a framework agreement for a period which exceeds 4 years except in exceptional circumstances, in particular, circumstances relating to the subject of the framework agreement.

    (11) In this regulation, a "specific contract" means a contract based on the terms of a framework agreement.

    (12) The contracting authority shall not use a framework agreement improperly or in such a way as to prevent, restrict or distort competition.

Dynamic purchasing systems
     20. —(1) A contracting authority using a dynamic purchasing system shall comply with this regulation.

    (2) The contracting authority which seeks to establish a dynamic purchasing system shall comply with the requirements of regulation 44(2) to (7) and shall use only electronic means to—



(a) establish that system; and

(b) award contracts under it.



    (3) The contracting authority shall use the open procedure in accordance with regulation 15 to establish a dynamic purchasing system up to the beginning of the procedure for the award of contracts under the system set out in this regulation.

    (4) When establishing a dynamic purchasing system, the contracting authority shall—



(a) send to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005 stating that a dynamic purchasing system is to be established; and

(b) produce a specification which indicates—


(i) the nature of the goods, work, works or services intended to be purchased under that system; and

(ii) information concerning the purchasing system, the electronic equipment to be used in its operation, the arrangements for technical connection to the system, the rules governing its operation and any other necessary information relating to the system.



    (5) When establishing a dynamic purchasing system the contracting authority may also produce additional documents relating to the operation of the system.

    (6) Where the contracting authority establishes a dynamic purchasing system it shall—



(a) offer unrestricted, direct and full access to the specification and to any additional documents by electronic means from the date of publication of the contract notice to the date when the system ceases to be operated; and

(b) indicate in the contract notice the internet address at which those documents may be examined.



    (7) Throughout the duration of the dynamic purchasing system, the contracting authority shall—



(a) give any economic operator the opportunity to—


(i) submit an indicative tender; and

(ii) be admitted to that system under the conditions referred to in paragraph (8); and



(b) complete the evaluation of an indicative tender within 15 days from the date of its submission or such longer period as the contracting authority may determine if no invitation to tender is issued under the system as provided in paragraph (13) within the 15 day period.



    (8) The contracting authority shall admit to the dynamic purchasing system each economic operator which satisfies the selection criteria and has submitted an indicative tender which complies with the specification and any additional documents produced by the contracting authority in accordance with paragraph (5) when establishing the system.

    (9) The contracting authority shall as soon as possible notify an economic operator of its admission to a dynamic purchasing system or of the rejection of its indicative tender and shall do so in writing if requested by the economic operator.

    (10) An economic operator which is admitted to a dynamic purchasing system may improve its indicative tender at any time provided that the improved tender complies with the specification described in paragraph (4)(b).

    (11) Where the contracting authority proposes to award a contract under a dynamic purchasing system, it shall send to the Official Journal as soon as possible after forming the intention a notice, in the form of a simplified contract notice on a dynamic purchasing system in Annex IX to Commission Regulation (EC) No 1564/2005, inviting economic operators to submit an indicative tender in accordance with paragraph (7)(a)(i) not less than 15 days from the date of the despatch of the simplified contract notice.

    (12) The indicative tenders received within the period specified in paragraph (11) shall be evaluated by the contracting authority for admittance to the dynamic purchasing system before it proceeds with the issue of invitations to submit tenders in relation to any contract to be awarded under the dynamic purchasing system to an economic operator admitted to the system.

    (13) The contracting authority shall invite all economic operators admitted to the dynamic purchasing system to submit a tender for each contract within a time limit specified by the contracting authority.

    (14) For each contract to be awarded under the dynamic purchasing system, the contracting authority—



(a) shall award the contract to the economic operator which submits the tender which best meets the award criteria specified in the contract notice for the establishment of the dynamic purchasing system; and

(b) may, if appropriate, formulate those award criteria more precisely in the invitation to submit tenders.



    (15) The contracting authority shall not charge any economic operator seeking admission to a dynamic purchasing system or which has been admitted to such a system in relation to any aspect of that system.

    (16) A dynamic purchasing system established by the contracting authority shall not be operated for more than 4 years, unless there are exceptional circumstances.

    (17) The contracting authority shall not use a dynamic purchasing system improperly or in such a way as to prevent, restrict or distort competition.

Electronic auctions
     21. —(1) A contracting authority which holds an electronic auction shall comply with this regulation.

    (2) Subject to paragraph (3), the contracting authority may hold an electronic auction when using—



(a) the open procedure;

(b) the restricted procedure;

(c) the negotiated procedure in the circumstances referred to in regulation 13(a) and 14(1)(a)(i);

(d) the procedure set out in regulation 19(7)(b) on the re-opening of competition among the parties to a framework agreement; or

(e) the procedure set out in regulation 20 on the opening of competition for contracts to be awarded under a dynamic purchasing system.



    (3) The contracting authority shall not hold an electronic auction to precede the award of a public services contract or a public works contract having as its subject matter intellectual performance, such as the design of works.

    (4) The contracting authority may only hold an electronic auction to precede the award of a contract when the contract specification can be established with precision.

    (5) The contracting authority shall base an electronic auction on—



(a) price alone where the contract is to be awarded on the basis of the lowest price; or

(b) price or the values of quantifiable elements of tenders indicated in the contract specification, where the contract is to be awarded on the basis of the offer which is the most economically advantageous in accordance with regulation 30(1)(a).



    (6) Where the contracting authority intends to hold an electronic auction it shall state this in the contract notice.

    (7) A contract specification prepared by the contracting authority in relation to a contract the award of which is to be preceded by an electronic auction shall include—



(a) the quantifiable elements of tenders capable of expression in figures or percentages which will be the subject of the electronic auction;

(b) any limitations on the values for the quantifiable elements of tenders (resulting from the contract specification) which may be submitted in the electronic auction;

(c) the information to be made available to economic operators during the electronic auction and, where appropriate, an indication of when it will be made available to them;

(d) a description of the electronic auction process;

(e) the conditions under which the economic operators will be able to bid and, in particular, the minimum differences which may be required when bidding; and

(f) all relevant information concerning—


(i) the electronic system to be used in the electronic auction; and

(ii) the arrangements for and technical specifications relevant to connection to the electronic system to be used.



    (8) Before proceeding with an electronic auction, the contracting authority shall—



(a) make an initial evaluation of the tenders in accordance with the award criteria specified and with any weighting fixed for them; and

(b) by electronic means simultaneously invite all the economic operators which have submitted admissible tenders to submit new prices or new values in the electronic auction.



    (9) Where the contracting authority is to award a contract on the basis of the offer which is the most economically advantageous to it in accordance with regulation 30(1)(a), each invitation referred to in paragraph (8)(b) shall include the outcome of the evaluation of the tender submitted by the economic operator to which the invitation is sent, carried out in accordance with the weighting described in regulation 30(3).

    (10) The contracting authority shall include in the invitation referred to in paragraph (8)(b)—



(a) all relevant information concerning individual connection to the electronic system to be used in the electronic auction;

(b) the date and time of the start of the electronic auction;

(c) the number of phases in the electronic auction;

(d) the mathematical formula to be used in the electronic auction to determine automatic re-ranking of tenders on the basis of the new prices or new values submitted by economic operators and incorporating the weighting of all the criteria set to determine the most economically advantageous tender;

(e) where variant bids are authorised by the contracting authority, a separate mathematical formula for each variation; and

(f) the basis on which the electronic auction is to be closed and the appropriate additional information specified in paragraph (16).



    (11) In relation to the formula referred to in paragraph (10)(d), any ranges used in the weighting of criteria shall be set at a specified value before the invitation is sent to economic operators.

    (12) At least two working days must elapse between the date on which the invitation referred to in paragraph (8)(b) is sent and the date of the electronic auction.

    (13) During each phase of an electronic auction, the contracting authority—



(a) shall instantaneously communicate to all economic operators participating in the auction at least sufficient information to enable them to ascertain their relative rankings in the auction at any time;

(b) may communicate to each economic operator other information concerning prices or values submitted by other economic operators provided that this has been stated in the contract specification; and

(c) may disclose the number of economic operators participating in that phase of the auction.



    (14) During any phase of an electronic auction, the contracting authority shall not disclose the identity of any economic operator participating in the auction.

    (15) The contracting authority shall close an electronic auction—



(a) at the date and time fixed for closure in the invitation referred to in paragraph (8)(b);

(b) when it receives no further new prices or new values which meet the requirements concerning minimum differences; or

(c) when the number of phases in the electronic auction specified in the invitation referred to in paragraph (8)(b) has been completed.



    (16) Where the contracting authority intends to close an electronic auction—



(a) as described in paragraph (15)(b), it shall state in the invitation referred to in paragraph (8)(b) the period which it intends to allow to elapse before it closes the auction after receiving a submission from an economic operator participating in the auction; or

(b) as described in paragraph (15)(c), it shall state in the invitation referred to in paragraph (8)(b) the timetable for each phase in the auction.



    (17) After closing an electronic auction the contracting authority shall award the contract in accordance with regulation 30 on the basis of the results of the electronic auction.

    (18) The contracting authority shall not use an electronic auction improperly or in such a way as to prevent, restrict or distort competition or to change the subject matter of the contract as referred to in the contract notice and defined in the specification.

    (19) The references to values in paragraphs (5)(b), (8)(b), (10)(d), (13)(b) and (15)(b) shall be interpreted as including price.

Central purchasing bodies
     22. —(1) A contracting authority may purchase work, works, goods or services from or through a central purchasing body.

    (2) Where a contracting authority makes purchases in accordance with paragraph (1), it shall be deemed to have complied with these Regulations to the extent that the central purchasing body has complied with them.





PART 4
SELECTION OF ECONOMIC OPERATORS
Criteria for the rejection of economic operators
     23. —(1) Subject to paragraph (2), a contracting authority shall treat as ineligible and shall not select an economic operator in accordance with these Regulations if the contracting authority has actual knowledge that the economic operator or its directors or any other person who has powers of representation, decision or control of the economic operator has been convicted of any of the following offences—


(a) conspiracy within the meaning of section 1 of the Criminal Law Act 1977[26] where that conspiracy relates to participation in a criminal organisation as defined in Article 2(1) of Council Joint Action 98/733/JHA[27];

(b) corruption within the meaning of section 1 of the Public Bodies Corrupt Practices Act 1889[28] or section 1 of the Prevention of Corruption Act 1906[29];

(c) the offence of bribery;

(d) fraud, where the offence relates to fraud affecting the financial interests of the European Communities as defined by Article 1 of the Convention relating to the protection of the financial interests of the European Union, within the meaning of—


(i) the offence of cheating the Revenue;

(ii) the offence of conspiracy to defraud;

(iii) fraud or theft within the meaning of the Theft Act 1968[30] and the Theft Act 1978[31];

(iv) fraudulent trading within the meaning of section 458 of the Companies Act 1985[32];

(v) defrauding the Customs within the meaning of the Customs and Excise Management Act 1979[33] and the Value Added Tax Act 1994[34];

(vi) an offence in connection with taxation in the European Community within the meaning of section 71 of the Criminal Justice Act 1993[35]; or

(vii) destroying, defacing or concealing of documents or procuring the extension of a valuable security within the meaning of section 20 of the Theft Act 1968;



(e) money laundering within the meaning of the Money Laundering Regulations 2003[36]; or

(f) any other offence within the meaning of Article 45(1) of the Public Sector Directive as defined by the national law of any relevant State.



    (2) In any case where an economic operator or its directors or any other person who has powers of representation, decision or control has been convicted of an offence described in paragraph (1), a contracting authority may disregard the prohibition described there if it is satisfied that there are overriding requirements in the general interest which justify doing so in relation to that economic operator.

    (3) A contracting authority may apply to the relevant competent authority to obtain further information regarding the economic operator and in particular details of convictions of the offences listed in paragraph (1) if it considers it needs such information to decide on any exclusion referred to in that paragraph.

    (4) A contracting authority may treat an economic operator as ineligible or decide not to select an economic operator in accordance with these Regulations on one or more of the following grounds, namely that the economic operator—



(a) being an individual is bankrupt or has had a receiving order or administration order or bankruptcy restrictions order made against him or has made any composition or arrangement with or for the benefit of his creditors or has made any conveyance or assignment for the benefit of his creditors or appears unable to pay, or to have no reasonable prospect of being able to pay, a debt within the meaning of section 268 of the Insolvency Act 1986[37], or article 242 of the Insolvency (Northern Ireland) Order 1989[38], or in Scotland has granted a trust deed for creditors or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of his estate, or is the subject of any similar procedure under the law of any other state;

(b) being a partnership constituted under Scots law has granted a trust deed or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of its estate;

(c) being a company or any other entity within the meaning of section 255 of the Enterprise Act 2002[39] has passed a resolution or is the subject of an order by the court for the company's winding up otherwise than for the purpose of bona fide reconstruction or amalgamation, or has had a receiver, manager or administrator on behalf of a creditor appointed in respect of the company's business or any part thereof or is the subject of the above procedures or is the subject of similar procedures under the law of any other state;

(d) has been convicted of a criminal offence relating to the conduct of his business or profession;

(e) has committed an act of grave misconduct in the course of his business or profession;

(f) has not fulfilled obligations relating to the payment of social security contributions under the law of any part of the United Kingdom or of the relevant State in which the economic operator is established;

(g) has not fulfilled obligations relating to the payment of taxes under the law of any part of the United Kingdom or of the relevant State in which the economic operator is established;

(h) is guilty of serious misrepresentation in providing any information required of him under this regulation;

(i) in relation to procedures for the award of a public services contract, is not licensed in the relevant State in which he is established or is not a member of an organisation in that relevant State when the law of that relevant State prohibits the provision of the services to be provided under the contract by a person who is not so licensed or who is not such a member; or

(j) subject to paragraphs “(7), (7A), (7B), (8), (8A), (8B) and (9), is not registered on the professional or trade register of the relevant State specified in Schedule 6 in which he is established under conditions laid down by that State.



    (5) The contracting authority may require an economic operator to provide such information as it considers it needs to make the evaluation in accordance with paragraphs (1) and (4) except that it shall accept as conclusive evidence that an economic operator does not fall within the grounds specified in paragraphs (1) and (4)(a), (b), (c), (d), (f) or (g) if that economic operator provides to the contracting authority—



(a) in relation to the grounds specified in paragraphs (1) and (4)(a), (b), (c) or (d)—


(i) an extract from the judicial record; or

(ii) in a relevant State which does not maintain such a judicial record, a document issued by the relevant judicial or administrative authority;



(b) in relation to the grounds specified in paragraphs (4)(f) or (g), a certificate issued by the relevant competent authority; and

(c) in a relevant State where the documentary evidence specified in paragraphs (5)(a) and (b) is not issued in relation to one of the grounds specified in paragraphs (1),(4)(a), (b), (c), (d), (f) or (g), a declaration on oath made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths.



    (6) In this regulation, "relevant" in relation to a judicial, administrative or competent authority, notary public or Commissioner for oaths means an authority designated by, or a notary public or Commissioner for oaths in the relevant State in which the economic operator is established.

    (7) An economic operator established in the United Kingdom or Ireland shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator —



(a) is established in Ireland and is certified as registered with the Registrar of Friendly Societies; or

(b) is established in either State and is either —


(i) certified as incorporated by their respective Registrar of Companies; or

(ii) is certified as having declared on oath that it is carrying on business in the trade in question in the State in which it is established at a specific place of business and under a specific trading name.


(7A) An economic operator established in Cyprus shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if—
(a) in relation to procedures for the award of a public services contract or a public supply contract the economic operator is either—
(i) certified as incorporated by the Registrar of Companies and OYcial Receiver (...... .ta..e..´ . .a. .p.´..µ.. .a.a..´ pt..); or
(ii) certified as having declared on oath that the economic operator is carrying on business in the trade in question in Cyprus at a specific place of business and under a specific trading name; or

(b) in relation to procedures for the award of a public works contract the economic operator is certified by the Council for the Registration and Audit of Civil Engineering and Building Contractors (S.µß..´ ... ....a..´ . .a. ..e´.... ......pt.´ . ....d.µ...´ ..a. .e.....´ . *.....) according to the Registration and Audit of Civil Engineering and Building Contractors Law of Cyprus.

(7B) An economic operator established in Malta shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if—
(a) the economic operator produces its “numru ta' registrazzjoni tat- Taxxa tal- Valur Mizjud (VAT) u n- numru tal-licenzja ta' kummerc”; and
(b) where the economic operator is a member of a partnership or is a company, it produces the relevant registration number issued by the Malta Financial Services Authority.

    (8) In relation to procedures for the award of a public services contract, an economic operator established in Greece shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j)—



(a) when the services to be provided under the contract are specified in category 8 of Schedule 3 and when Greek legislation requires persons who provide those services to be registered on the professional register (Μητρώο Μελετητών and Μητρώο Γραφείων Μελετών), if it is registered on that register; and

(b) in any other case, in accordance with paragraph (9).


(8A) In relation to procedures for the award of a public services contract, an economic operator established in Hungary shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator is certified as being entitled to be engaged in the trade in question in Hungary.

(8B) In relation to procedures for the award of a public supply contract, an economic operator established in Spain shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator is certified as having declared on oath that it is entitled to be engaged in the trade in question in Spain.”

    (9) An economic operator established in a relevant State, other than the United Kingdom or Ireland, which either has an equivalent professional or trade register which is not listed in Schedule 6 or which does not have an equivalent professional or trade register shall be treated as registered on a professional or trade register for the purposes of paragraph (4)(j) on production of either a certificate that he is registered on the equivalent professional or trade register or where no such register exists, a declaration on oath, or in a relevant State which does not provide for a declaration on oath a solemn declaration, made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths, that he exercises the particular profession or trade.

Information as to economic and financial standing
     24. —(1) Subject to regulation 27 and paragraph (2), in assessing whether an economic operator meets any minimum standards of economic and financial standing required of economic operators by the contracting authority—



(a) for the purposes of regulation 15(11), 16(7), 17(9) or 18(10); and

(b) in selecting the economic operators to be invited to tender for or to negotiate the contract in accordance with regulation 16(8), 17(10) or 18(11);



a contracting authority may take into account any of the following information—



(i) appropriate statements from the economic operator's bankers or where appropriate, evidence of relevant professional risk indemnity insurance;

(ii) statements of accounts or extracts from those accounts relating to the business of the economic operator where publication of the statement is required under the law of the relevant State in which the economic operator is established; or

(iii) where appropriate, a statement, covering the 3 previous financial years of the economic operator, of—


(aa) the overall turnover of the business of the economic operator; and

(bb) where appropriate, the turnover in respect of the work, works, goods or services which are of a similar type to the subject matter of the public contract.



    (2) Where the information specified in paragraph (1) is not appropriate in a particular case, a contracting authority may require an economic operator to provide other information to demonstrate the economic operator's economic and financial standing.

    (3) A contracting authority which requires information to be provided in accordance with paragraph (1) or (2) shall specify in the contract notice or in the invitation to tender the information which the economic operator must provide.

    (4) Where appropriate—



(a) an economic operator or a group of economic operators as referred to in regulation 28 may rely on the capacities of other entities or members in the group, regardless of the legal nature of the link between the economic operator or group of economic operators and the other entities; and

(b) the economic operator or the group of economic operators shall prove to the contracting authority that the resources necessary to perform the contract will be available and the contracting authority may, in particular, require the economic operator to provide an undertaking from the other entities to that effect.



    (5) Where an economic operator is unable for a valid reason to provide the information which the contracting authority has required, the contracting authority shall accept such other information provided by the economic operator as the contracting authority considers appropriate.

Information as to technical or professional ability
     25. —(1) Subject to regulation 27, in assessing whether an economic operator meets any minimum standards of technical or professional ability required of economic operators by the contracting authority—



(a) for the purposes of regulation 15(11), 16(7), 17(9) or 18(10); and

(b) in selecting the economic operators to be invited to tender for or to negotiate the contract in accordance with regulation 16(8), 17(10) or 18(11);



a contracting authority may have regard to any means listed in paragraph (2) according to the purpose, nature, quantity or importance of the contract.

    (2) The means referred to in paragraph (1) are—



(a) in the case of a public services contract, a public works contract or a public supply contract requiring the siting or installation of work, the economic operator's technical ability, taking into account in particular that economic operator's skills, efficiency, experience and reliability;

(b) a list of works carried out over the past 5 years together with (unless the contracting authority specifies that the following certificate should be submitted direct to the contracting authority by the person certifying) certificates of satisfactory completion for the most important of those works indicating in each case—


(i) the value of the consideration received;

(ii) when and where the work or works were carried out; and

(iii) specifying whether they were carried out according to the rules of the trade or profession and properly completed;



(c) a statement of the principal goods sold or services provided by the supplier or the services provider in the past 3 years and—



(i) the dates on which the goods were sold or the services provided;

(ii) the consideration received;

(iii) the identity of the person to whom the goods were sold or the services were provided;

(iv) any certificate issued or countersigned by that person confirming the details of the contract for those goods sold or services provided; and

(v) where—


(aa) that person was not a contracting authority; and

(bb) the certificate referred to in sub-paragraph (c)(iv) is not available;



any declaration by the economic operator attesting the details of the goods sold or services provided;



(d) a statement of the technicians or technical services available to the economic operator to—



(i) carry out the work under the contract; or

(ii) be involved in the production of goods or the provision of services under the contract;



particularly those responsible for quality control, whether or not they are independent of the economic operator;

(e) in relation to the goods to be purchased or hired or the services to be provided under the contract, a statement of the supplier's or services provider's—



(i) technical facilities;

(ii) measures for ensuring quality; and

(iii) study and research facilities;



(f) where the goods to be sold or hired or the services to be provided under the contract are complex or, exceptionally, are required for a special purpose, a check carried out by the contracting authority or on its behalf by a competent official body of the relevant State in which the supplier or services provider is established—



(i) on the technical capacity of the supplier or services provider in relation to the goods to be purchased or hired or the services to be provided under the contract; and

(ii) if relevant, on the supplier's or services provider's study and research facilities and quality control measures;



(g) the services provider's or contractor's educational and professional qualifications where the services provider or contractor is an individual and—



(i) if any, those of the services provider's or contractor's managerial staff; and

(ii) those of the one or more persons who would be responsible for providing the services or carrying out the work or works under the contract;



(h) the environmental management measures, evidenced in accordance with paragraph (4), that the services provider or contractor is able to apply when performing the contract, but only where it is necessary for the performance of that contract;

(i) a statement of the services provider's or contractor's average annual number of staff and managerial staff over the previous 3 years;

(j) a statement of the tools, plant and technical equipment available to the services provider or contractor for performing the contract;

(k) a statement of any proportion of the contract which the services provider intends to sub-contract to another person;

(l) any samples, descriptions and photographs of the goods to be purchased or hired under the public supply contract and certification of the authenticity of such samples, descriptions or photographs;

(m) certification by official quality control institutes or agencies of recognised competence, attesting that the goods to be purchased or hired under the public supply contract conform to standards and technical specifications (within the meaning of regulation 9(1)) identified by the contracting authority;

(n) a certificate—



(i) attesting conformity to quality assurance standards based on the relevant European standard; and

(ii) from an independent body established in any relevant State conforming to the European standard concerning certification; or



(o) any other evidence of conformity to quality assurance measures which are equivalent to the standards referred to in sub-paragraph (n)(i).



    (3) Where appropriate—



(a) an economic operator or a group of economic operators as referred to in regulation 28 may rely on the capacities of other entities or members in the group, regardless of the legal nature of the link between the economic operator or group of economic operators and the other entities; and

(b) the economic operator or the group of economic operators shall prove to the contracting authority that the resources necessary to perform the contract will be available and the contracting authority may, in particular, require the economic operator to provide an undertaking from the other entities to that effect.



    (4) The evidence referred to in paragraph (2)(h) is—



(a) a certificate—


(i) attesting conformity to environmental management standards based on—


(aa) the Community Eco-Management and Audit Scheme[40]; or

(bb) the relevant European or international standards; and



(ii) from an independent body established in any relevant State conforming to Community law or the relevant European or international standards concerning certification; or



(b) any other evidence of environmental management measures which are equivalent to the standards referred to in sub-paragraph (a)(i).



    (5) A contracting authority which requires information to be provided in accordance with paragraph (2) shall specify in the contract notice or in the invitation to tender the information which the economic operator must provide.

Supplementary information
     26. Subject to regulation 27, the contracting authority may require an economic operator to provide information supplementing the information provided in accordance with regulations 23, 24 or 25 or to clarify that information, provided that the information so required relates to the matters specified in regulations 23, 24 or 25.

Official lists of approved economic operators
     27. —(1) This regulation applies where an economic operator is registered in accordance with paragraph (2) or certified in accordance with paragraph (3).

    (2) An economic operator is registered in accordance with this paragraph where it is registered on the official list of approved contractors, services providers or suppliers in a relevant State which maintains such lists and in which the economic operator is established.

    (3) An economic operator is certified in accordance with this paragraph where it is certified by a certification body complying with European certification standards in a relevant State which maintains such certification and in which the economic operator is established.

    (4) Where an economic operator which is registered or certified submits to the contracting authority—



(a) a certificate of registration issued by the authority administering the official list referred to in paragraph (2); or

(b) a certificate issued by the body administering the certification referred to in paragraph (3);



which specifies the information submitted to that authority or body which enabled the economic operator to be registered or certified and which states the classification given, the contracting authority shall accept the certificate as evidence of the matters referred to in paragraph (5).

    (5) Subject to paragraph (6), where the certificate referred to in paragraph (4) deals with the grounds referred to in regulations 23(1), (4)(a) to (e), (h) and (j), 24(1)(b)(ii) and (iii) and—



(a) in the case of a contractor, regulation 25(2)(b), (d), (g), (i) and (j);

(b) in the case of a services provider, regulation 25(2)(c), (e), (f), (g), (h), (i), (j) and (k); or

(c) in the case of a supplier, regulation 25(2)(c), (d), (e), (f), (l) and (m);



the contracting authority shall—



(i) accept the certificate as evidence that the economic operator does not fall within the grounds specified in regulation 23(1), (4)(a) to (e), (h) and (j) and shall not be entitled to require the economic operator to submit such information relating to those grounds as is specified in regulation 23;

(ii) not be entitled to require the economic operator to provide information specified in regulation 24(1)(b)(ii) and (iii) and—


(aa) in the case of a contractor, regulation 25(2)(b), (d), (g), (i) and (j);

(bb) in the case of a services provider, regulation 25(2)(c), (e), (f), (g), (h), (i), (j) and (k); and

(cc) in the case of a supplier, regulation 25(2)(c), (d), (e), (f), (l) and (m); and



(iii) not be entitled to seek any supplementary information in accordance with regulation 26 in relation to the matters specified in sub-paragraph (c)(i) and (ii).



    (6) A contracting authority is not required to comply with paragraph (5) where it considers that it has justification for not doing so.

Consortia
     28. —(1) In this regulation a "consortium" means two or more persons, at least one of whom is an economic operator, acting jointly for the purpose of being awarded a public contract.

    (2) Subject to paragraph (3), a contracting authority shall not treat the tender of a consortium as ineligible nor decide not to include a consortium amongst those economic operators from which it will make the selection of economic operators to be invited to tender for or to negotiate a public contract or to be admitted to a dynamic purchasing system on the grounds that the consortium has not formed a legal entity for the purposes of tendering for or negotiating the contract or being admitted to a dynamic purchasing system.

    (3) Where a contracting authority awards a public contract to a consortium it may, if it is justified for the satisfactory performance of the contract, require the consortium to form a legal entity before entering into, or as a term of, the contract.

    (4) In these Regulations references to an economic operator where the economic operator is a consortium includes a reference to each person who is a member of that consortium.

Corporations
     29. —(1) A contracting authority shall not treat the tender of a services provider as ineligible nor decide not to include a services provider amongst those services providers from which it will make the selection of services providers to be invited to tender for or to negotiate a contract or to be admitted to a dynamic purchasing system on the ground that under the law of any part of the United Kingdom the services provider is required to be an individual, a corporation or other type of body, if under the law of the relevant State in which the services provider is established, that services provider is authorised to provide such services.

    (2) In the case of—



(a) a public services contract;

(b) a public works contract; or

(c) a public supply contract which includes services or siting and installation operations;



a contracting authority may require an economic operator which is not an individual to indicate in the tender, the indicative tender or in the request to be selected to tender for or to negotiate the contract, the names and relevant professional qualifications of the staff who will be responsible for the performance of the contract.



Notification

29A.—(1) Where a contracting authority decides, prior to the stage at which it makes a decision to which regulation 32(1) (award decision) applies, to exclude an applicant, the contracting authority shall notify the applicant of that exclusion.

(2) In this regulation, “applicant” means an economic operator which submitted an offer, applied to be included amongst the economic operators to be selected to tender for or to negotiate the contract, or applied to be a party to the framework agreement.

(3) For the purposes of this regulation, an applicant is excluded if, and only if—

(a)the applicant, or the applicant’s tender, is excluded as mentioned in regulation 15(11), 16(7), 17(9) or 18(10); or

(b)the applicant is not among those selected to be—

(i)invited to tender as mentioned in regulation 16(8);

(ii)invited to negotiate, as mentioned in regulation 17(10) or (23), or for the purposes of regulation 17(22); or

(iii)invited to participate, as mentioned in regulation 18(11) or (23), or for the purposes of regulation 18(22).




PART 5
THE AWARD OF A PUBLIC CONTRACT
Criteria for the award of a public contract
     30. —(1) Subject to regulation 18(27) and to paragraphs (6) and (9) of this regulation, a contracting authority shall award a public contract on the basis of the offer which—


(a) is the most economically advantageous from the point of view of the contracting authority; or

(b) offers the lowest price.



    (2) A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period and period of completion.

    (3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

    (4) When stating the weightings referred to in paragraph (3), a contracting authority may give the weightings a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract.

    (5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority shall indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

    (6) If an offer for a public contract is abnormally low the contracting authority may reject that offer but only if it has—



(a) requested in writing an explanation of the offer or of those parts which it considers contribute to the offer being abnormally low;

(b) taken account of the evidence provided in response to a request in writing; and

(c) subsequently verified the offer or parts of the offer being abnormally low with the economic operator.



    (7) Where a contracting authority requests an explanation in accordance with paragraph (6), the information requested may, in particular, include—



(a) the economics of the method of construction, the manufacturing process or the services provided;

(b) the technical solutions suggested by the economic operator or the exceptionally favourable conditions available to the economic operator for the execution of the work or works, for the supply of goods or for the provision of the services;

(c) the originality of the work, works, goods or services proposed by the economic operator;

(d) compliance with the provisions relating to employment protection and working conditions in force at the place where the contract is to be performed; or

(e) the possibility of the economic operator obtaining State aid.



    (8) Where a contracting authority establishes that a tender is abnormally low because the economic operator has obtained State aid, the offer may be rejected on that ground alone only after—



(a) consultation with the economic operator; and

(b) the economic operator is unable to prove, within a reasonable time limit fixed by the contracting authority, that the aid was granted in a way which is compatible with the EC Treaty.



    (9) Where a contracting authority rejects an abnormally low offer in accordance with paragraph (8), it shall send a report justifying the rejection to the Office of Government Commerce for onward transmission to the Commission.

    (10) In this regulation "offer" includes a bid by one part of a contracting authority to provide services, to carry out work or works or to make goods available to another part of the contracting authority when the former part is invited by the latter part to compete with the offers sought from other persons.

Contract award notice
     31. —(1) Subject to paragraphs (2) and (3), a contracting authority which has awarded a public contract or concluded a framework agreement shall, not later than 48 days after the award or conclusion, send to the Official Journal a notice, in the form of the contract award notice in Annex III to Commission Regulation (EC) No 1564/2005 as amended from time to time including the information therein specified.

    (2) Any of the information specified in the form of the contract award notice in Annex III to Commission Regulation (EC) No 1564/2005 to be included in the contract award notice may be omitted in a particular case where to publish such information—



(a) would impede law enforcement;

(b) would otherwise be contrary to the public interest;

(c) would prejudice the legitimate commercial interest of any person; or

(d) might prejudice fair competition between economic operators.



    (3) A contracting authority shall not be required to send a contract award notice in accordance with paragraph (1) where it awards a contract under a framework agreement.

    (4) A contracting authority which has awarded a contract under a dynamic purchasing system in accordance with regulation 20 may—



(a) send the contract award notice in accordance with paragraph (1); or

(b) retain any notice it is proposing to send to the Official Journal in accordance with paragraph (1) for a period of 3 months from the date that the first notice was retained.



    (5) Where a contracting authority retains contract award notices in accordance with paragraph (4)(b), it shall send those contract award notices to the Official Journal not later than 48 days after the end of each period of 3 months.

    (6) A contracting authority which has awarded a Part B services contract shall state in the contract award notice whether or not it agrees to its publication.

Information about contract award procedures
     32. —

Award decision notice

(1) Subject to paragraph (13), a contracting authority shall, as soon as possible after the decision has been made, inform the tenderers and candidates of its decision to—

(a)award the contract; or

(b)conclude the framework agreement,

and shall do so by notice in writing by the most rapid means of communication practicable.

(2) Where it is to be sent to a tenderer, the notice referred to in paragraph (1) shall include—

(a)the criteria for the award of the contract;

(b)the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) obtained by—

(i)the economic operator which is to receive the notice; and

(ii)the economic operator—

(aa)to be awarded the contract; or

(bb)to become a party to the framework agreement,

and anything required by paragraph (10);

(c)the name of the economic operator—

(i)to be awarded the contract; or

(ii)to become a party to the framework agreement; and

(d)a precise statement of either—

(i)when, in accordance with regulation 32A, the standstill period is expected to end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or

(ii)the date before which the contracting authority will not, in conformity with regulation 32A, enter into the contract or conclude the framework agreement.

(2A) Where it is to be sent to a candidate, the notice referred to in paragraph (1) shall include—

(a)the reasons why the candidate was unsuccessful; and

(b)the information mentioned in paragraph (2), but as if the words “and relative advantages” were omitted from sub-paragraph (b).”;



(6A) Where the contract or framework agreement is permitted by these Regulations to be awarded or concluded without prior publication of a contract notice, the contracting authority need not comply with paragraph (1).

(6B) Where the only tenderer is the one who is to be awarded the contract or who is to become a party to the framework agreement, and there are no candidates, the contracting authority need not comply with paragraph (1).

  

    (7) Where a contracting authority awards a contract under a framework agreement or a dynamic system, that contracting authority need not comply with paragraphs (1) to (5).



Reasons to be given on request to unsuccessful economic operators;


    (9) Except to the extent that the contracting authority has already informed the economic operator (whether by notice under paragraph (1) or otherwise), and subject to paragraph (13), a contracting authority shall within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful (whether in accordance with regulation 15(11), 16(7), 16(8), 17(9), 17(10), 17(22), 17(23), 18(10), 18(11), 18(22), 18(23), 19(9), 20(8), 20(14) or 30)—



(a) inform that economic operator of the reasons why it was unsuccessful; and

(b) if the economic operator submitted an admissible tender, the contracting authority shall inform that economic operator of the characteristics and relative advantages of the successful tender and—


(i) the name of the economic operator to be awarded the contract;

(ii) the names of the parties to the framework agreement; or

(iii) the names of the economic operators admitted to the dynamic purchasing system.



    (10) The reasons referred to in paragraphs (2)(b) and (9)(a) shall include any reason for the contracting authority's decision that the economic operator did not meet the technical specifications—



(a) as specified in regulation 9(6) by an equivalent means; or

(b) in terms of the performance or functional requirements in regulation 9(7) by an equivalent means.




Abandonment or recommencement of procedure;





    (11) Subject to paragraph (13), a contracting authority shall as soon as possible after the decision has been made, inform any candidates and tenderers, of its decision to abandon or to recommence a contract award procedure in respect of which a contract notice has been published, in relation to—



(a) the award of a contract;

(b) the conclusion of a framework agreement; or

(c) admittance to a dynamic purchasing system.



    (12) A contracting authority which informs an economic operator of its decision in accordance with paragraph (11) shall—



(a) include the reasons for the decision; and

(b) provide the decision and reasons in writing if requested by the economic operator.

Grounds for withholding information;





    (13) A contracting authority may withhold any information to be provided in accordance with paragraph (1), (9) or (11) where the disclosure of such information—



(a) would impede law enforcement;

(b) would otherwise be contrary to the public interest;

(c) would prejudice the legitimate commercial interests of any economic operator; or

(d) might prejudice fair competition between economic operators.

                                       Records and reports;

    (14) A contracting authority shall prepare a record in relation to each public contract awarded by it, framework agreement concluded by it or dynamic purchasing system established by it, specifying—



(a) the name and address of the contracting authority;

(b) the value of the consideration to be given under the contract, framework agreement or dynamic purchasing system and—


(i) the type of goods purchased or hired;

(ii) the work or works to be carried out; or

(iii) the services to be provided;



(c) where offers were evaluated in accordance with regulation 30, the names of the economic operators which submitted those offers and where the contracting authority has used the restricted procedure or negotiated procedure, the reasons why those economic operators were selected;

(d) the name of any economic operator—



(i) to which the contract was awarded;

(ii) with which the framework agreement was concluded; or

(iii) which was admitted to the dynamic purchasing system;



and the reasons for having—



(aa) awarded the contract to, or concluded the framework agreement with, that economic operator; or

(bb) admitted that economic operator to the dynamic purchasing system;



(e) the names of the economic operators which were unsuccessful in the circumstances referred to in regulation 15(11), 16(7), 16(8), 17(9), 17(10), 18(10), 18(11), 20(8) or 30 and the reasons why they were unsuccessful;

(f) if known to the contracting authority, the parts of the contract or framework agreement that the economic operator to which the contract has been awarded, or with which the framework agreement has been concluded, intends to sub-contract to another economic operator;

(g) in the case of a contracting authority which used the negotiated procedure, which of the circumstances specified in regulation 13 or 14 constituted grounds for using that procedure;

(h) in the case of a contracting authority which used the competitive dialogue procedure, details of the circumstances which constituted grounds for using that procedure in accordance with regulation 18(2); and

(i) where a contracting authority has abandoned a contract award procedure, the conclusion of a framework agreement or the establishment of a dynamic purchasing system, the reasons why the contracting authority has decided not to award the contract, to conclude the framework agreement or to establish the dynamic purchasing system as the case may be.



    (15) A contracting authority shall keep appropriate information to document the progress of contract award procedures conducted by electronic means.

    (16) If the Commission requests a report containing the information specified in paragraph (14), the contracting authority shall send a written report containing that information, or the main features of it, to the Office of Government Commerce for onward transmission to the Commission.



                                        Definitions;



(17) For the purposes of this regulation—

(a)“candidate” means an economic operator (other than a tenderer) which applied—

(i)to be included amongst the economic operators to be selected to tender or to negotiate the contract; or

(ii)to be a party to the framework agreement,

but does not include any economic operator which has been informed of the rejection of its application, and the reasons for it; and

(b)“tenderer” means an economic operator which submitted an offer.




Standstill period



32A.—(1) Where regulation 32(1) applies, the contracting authority must not enter into the contract or conclude the framework agreement before the end of the standstill period.

(2) Subject to paragraph (6), where the contracting authority sends a regulation 32(1) notice to all the relevant economic operators by facsimile or electronic means, the standstill period ends at midnight at the end of the 10th day after the relevant sending date.

(3) Subject to paragraph (6), where the contracting authority sends a regulation 32(1) notice to all the relevant economic operators only by other means, the standstill period ends at whichever of the following occurs first—

(a)midnight at the end of the 15th day after the relevant sending date;

(b)midnight at the end of 10th day after the date on which the last of the economic operators to receive such a notice receives it.





4) In paragraphs (2) and (3), “the relevant sending date” means the date on which the regulation 32(1) notices are sent to the relevant economic operators, and if the notices are sent to different relevant economic operators on different dates, the relevant sending date is the date on which the last of the notices is sent.

(5) Subject to paragraph (6), where the contracting authority sends a regulation 32(1) notice to one or more of the relevant economic operators by facsimile or electronic means and to the others by other means, the standstill period ends at whichever of the following two times occurs latest—

(a)midnight at the end of the 10th day after the date on which the last notice is sent by facsimile or electronic means;

(b)the time when whichever of the following occurs first—

(i)midnight at the end of the 15th day after the date on which the last notice is sent by other means;

(ii)midnight at the end of the 10th day after the date on which the last of the economic operators to receive a notice sent by any such other means receives it.








(6) Where the last day of the standstill period reckoned in accordance with paragraphs (2) to (5) is not a working day, the standstill period is extended to midnight at the end of the next working day.

(7) In this regulation—

“regulation 32(1) notice” means a notice given in accordance with regulation 32(1); and

“relevant economic operators” means economic operators to which regulation 32(1) requires information to be given.






PART 6
SPECIALISED CONTRACTS
Design contests
     33. —(1) A contracting authority which organises a design contest—


(a) shall establish the rules for that design contest in accordance with the provisions of this regulation; and

(b) shall not limit the admission of any economic operator to the design contest by reference to the territory or part of the territory of a relevant State.



    (2) This regulation applies to a design contest if it is organised as part of a procedure leading to the award of a public services contract whose estimated value (net of value added tax and including the value of any prizes or payments) is not less than the relevant threshold described in paragraphs (4) and (5).

    (3) This regulation applies to a design contest whether or not it is organised as part of a procedure leading to the award of a public services contract if the aggregate value of the prizes or payments for the contest, including the estimated value (net of value added tax) of the contract which might subsequently be awarded in accordance with regulation 14(1)(c) (provided that the contracting authority does not exclude such an award), is not less than the relevant threshold described in paragraphs (4) and (5).

    (4) Subject to paragraph (5), the relevant threshold for the purposes of paragraphs (2) and (3) is—



(a) the sum mentioned in Article 67(1)(a) of the Public Sector Directive where offers are sought by a Schedule 1 entity; or

(b) the sum mentioned in Article 67(1)(b) of the Public Sector Directive where offers are sought by any other contracting authority.



    (5) For the purposes of paragraphs (2) and (3) the relevant threshold is the sum mentioned in Article 67(1)(c)
of the Public Sector Directive in the case of a public services contract which is—



(a) for telecommunications services specified under CPV references 64221000-1,
64227000-3, 64228000-0, 64228100-1, 64228200-2 within category 5 of Part A of
Schedule 3;

(b) for research and development services specified in category 8 of Part A of Schedule 3; or

(c) a Part B services contract.


(5A) References in paragraphs (4) and (5) to the Public Sector Directive are references to that Directive as amended from time to time.

    (6) This regulation does not apply to a design contest—



(a) where the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts Regulations 2006 and that contract is for the purposes of carrying out an activity specified in any Part of Schedule 1 to those Regulations in which the utility is specified;

(b) where the principal purpose is to permit the contracting authority to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services;

(c) which is classified as secret or where it must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom requires it;

(d) where different rules govern the procedures of the design contest and it is to be entered into in accordance with—


(i) an international agreement to which the United Kingdom and a State which is not a relevant State are parties and it relates to a design contest intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops; or

(iii) the design contest procedures of an organisation of which only States are members (an "international organisation") or of which only States or international organisations are members; or



(e) which is otherwise excluded from the scope of these Regulations.



    (7) The contracting authority shall publicise its intention to hold a design contest by sending to the Official Journal a notice in the form of the design contest notice in Annex XII to Commission Regulation (EC) No 1564/2005 and containing the information therein specified.

    (8) The contracting authority shall make the rules of the design contest available to economic operators which wish to participate in the contest.

    (9) Regulations 28(2) and 29 apply to design contests as they apply to the seeking of offers in relation to a proposed public contract.

    (10) Regulation 42(1)(b) to (8) applies to notices relating to design contests as it applies to notices in relation to a proposed public contract.

    (11) Regulation 44(1), (2) and (4) applies to all communications relating to design contests as it applies to a proposed public contract.

    (12) The contracting authority shall ensure that the specified means of communication and the storage of information enables—



(a) the integrity and confidentiality of information provided by those economic operators participating in the design contest to be maintained; and

(b) the jury to ascertain the contents of proposals only after the time limit for their submission has expired.



    (13) Where the contracting authority requires that proposals are to be transmitted by electronic means, it shall ensure that—



(a) details of the equipment which is necessary for the electronic receipt of proposals, including encryption, are available to all economic operators which wish to participate in the design contest; and

(b) the equipment for the electronic receipt of proposals complies with the requirements of regulation 44(6).



    (14) Where the contracting authority restricts the number of economic operators in the design contest, it shall—



(a) establish clear and non-discriminatory criteria to select those economic operators; and

(b) ensure that the number of economic operators selected is sufficient to ensure adequate competition.



    (15) A contracting authority shall ensure that—



(a) the members of the jury are all individuals who are independent of those economic operators participating in the design contest;

(b) where the economic operators are required to possess a particular professional qualification, that at least one third of the members of the jury also possess that qualification or an equivalent qualification;

(c) the proposals of the economic operators are submitted to the jury without any indication as to the authorship of each proposal;

(d) the jury makes its decisions or opinions independently and solely on the basis of the criteria specified in the notice referred to in paragraph (7);

(e) the jury is not informed of the authorship of any proposal until after it has reached its decision or opinion;

(f) the jury prepares minutes signed by its members in which it records—


(i) its ranking of the proposals based upon its assessment of each proposal's merits; and

(ii) its observations or details of any issues upon which clarification is required in relation to each proposal; and



(g) the jury may invite the economic operators to answer any questions to clarify issues noted in the minutes referred to in sub-paragraph (f) and shall record complete minutes of any such communications with economic operators.



    (16) The contracting authority shall, not later than 48 days after the date the jury makes its selection, publicise the results of the design contest by sending to the Official Journal a notice in the form of the notice of the results of a design contest in Annex XIII to Commission Regulation (EC) No 1564/2005 and including the information therein specified.

    (17) The contracting authority shall retain evidence of the date of despatch to the Official Journal of each notice.

    (18) Any of the information specified in the form of the notice referred to in paragraph (16) to be included in that notice may be omitted in a particular case where to publish such information—



(a) would impede law enforcement;

(b) would otherwise be contrary to the public interest;

(c) would prejudice the legitimate commercial interest of any person; or

(d) might prejudice fair competition between economic operators.



Subsidised public works contracts and public services contracts
     34. —(1) Where—



(a) a contracting authority undertakes to contribute more than half of the consideration to be or expected to be paid under a contract to which this paragraph applies by virtue of paragraph (2); and

(b) the contract has been or is to be entered into by a person other than another contracting authority (in this regulation referred to as "the subsidised body"), that contracting authority shall—


(i) make it a condition of the making of such a contribution that the subsided body complies with the provisions of these Regulations in relation to that contract as if it were a contracting authority; and

(ii) ensure that the subsidised body does so comply or recover the contribution.



    (2) Paragraph (1) applies to a contract which, if the subsidised body were a contracting authority, would be—



(a) a public works contract to which these Regulations apply by virtue of regulation 8 and which is for the carrying out of—


(i) any of the civil engineering activities specified in Schedule 2; or

(ii) building work for hospitals, facilities intended for sports, recreation and leisure, school and university buildings or buildings for administrative purposes; or



(b) a public services contract to which these Regulations apply by virtue of regulation 8 for providing services in connection with a contract referred to in sub-paragraph (a) of this paragraph.



Subsidised housing scheme works contracts
     35. —(1) For the purpose of seeking offers in relation to a subsidised housing scheme works contract to which the circumstances of paragraph (2) apply, a contracting authority may, except as indicated in the following paragraphs, depart from the provisions of these Regulations insofar as it is necessary to do so to select the contractor which is most suitable for integration into the team referred to in paragraph (2).

    (2) The circumstances referred to in paragraph (1) are where the size and complexity of the scheme and the estimated duration of the works involved require that the planning of the scheme be based from the outset on a close collaboration of a team comprising representatives of the contracting authority, experts and the contractor.

    (3) The contracting authority shall comply with the provisions of—



(a) regulations 4(3), 11, 31, 32, 42 and 44; and

(b) the time limits referred to in regulations 15, 16, 17 and 18.



    (4) The contracting authority shall include in the contract notice a job description which is as accurate as possible so as to enable contractors to form a valid idea of the scheme and of the minimum standards relating to the business or professional status, the economic and financial standing, the technical ability and any quality assurance standards which the contractor awarded the contract will be expected to fulfil in accordance with regulations 23, 24, 25 and 26.

Public works concession contracts
     36. —(1) A contracting authority seeking offers in relation to a public works concession contract shall comply with this regulation.

    (2) These Regulations do not apply to the seeking of offers in relation to a proposed public works concession contract where the estimated value of the contract (net of value added tax) at the relevant time is less than the sum mentioned in the first paragraph of Article 56 of the Public SectorDirective as amended from time to time.

    (3) In this regulation "relevant time" has the same meaning it has in regulation 8(20).

    (4) The estimated value of a public works concession contract for the purposes of paragraph (2) shall be the value of the consideration which the contracting authority would expect to give for the carrying out of the work or works if it did not propose to grant a concession.

    (5) The value of the consideration under a public works concession contract shall be calculated in accordance with regulation 8(6).

    (6) These Regulations shall not apply to the seeking of offers in relation to a proposed public works concession contract—



(a) where—


(i) the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts Regulations 2006; and

(ii) the work or works to be carried out under it are for the purposes of carrying out an activity specified in any Part of Schedule 1 to those Regulations in which the utility is specified;



(b) where the principal purpose of the contract is to permit the contracting authority to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services;

(c) which is classified as secret or where the performance of the contract must be accompanied by special security measures in accordance with the laws, regulations of administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom require it;

(d) where Article 296 of the EC Treaty applies to that public works concession contract;

(e) where different procedures govern the procedures leading to the award of the contract and it is to be entered into in accordance with—



(i) an international agreement concluded in conformity with the EC Treaty to which the United Kingdom and a State which is not a relevant State are parties and it relates to the carrying out of works intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops and concerning the undertakings of a relevant State; or

(iii) the contract award procedures of an organisation of which only States are members (an "international organisation") or of which only States or international organisations are members; or



(f) subject to paragraph (7), when a contracting authority wants an economic operator which has entered into a public works concession contract with the contracting authority to carry out additional work or works which were not included in the project initially considered or in the original public works concession contract but which through unforeseen circumstances have become necessary, and such work or works—



(i) cannot for technical or economic reasons be carried out separately from those under the original contract without major inconvenience to the contracting authority; or

(ii) can be carried out separately from those under the original contract but are strictly necessary to the later stages of the performance of that contract.



    (7) Paragraph (6)(f) does not apply where the aggregate value of the consideration to be given under contracts for the additional work or works exceeds 50% of the value of the consideration payable under the original contract.

    (8) The contracting authority shall—



(a) publicise its intention to seek offers in relation to the public works concession contract by sending to the Official Journal as soon as possible after forming the intention a notice in the form of the public works concession contract notice in Annex X to Commission Regulation (EC) No 1564/2005 and containing the information therein specified and any other information which the contracting authority considers useful; and

(b) comply with regulation 42 in relation to a public works concession contract notice as it would comply in relation to a proposed public contract.



    (9) Subject to paragraphs (10) and (13), the date which the contracting authority fixes as the last date for the receipt by it of tenders or of requests to be selected to tender for or to negotiate the contract, shall be specified in the contract notice and shall be not less than 52 days from the date of despatch of the notice.

    (10) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (9) may be reduced by 7 days.

    (11) The contracting authority shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator provided that the documents are requested in good time and any fee specified in the contract notice has accompanied the request.

    (12) The contracting authority shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the contracting authority to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (13) The contracting authority shall extend the time limit for the receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—



(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraphs (11) and (12) and, for whatever reason, the contract documents are not supplied in accordance with those paragraphs; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.



Sub-contracting the work or works to be carried out under a public works concession contract
     37. —(1) A contracting authority seeking offers in relation to a public works concession contract shall either—



(a) include in the invitation to tender for, to apply to be selected to tender for or to negotiate, the concession contract, a request that the economic operator specify whether it would intend, if awarded the concession contract, to sub-contract to economic operators which are not related to it—


(i) any of the work or works to be carried out under the contract; and

(ii) where sub-paragraph (a)(i) applies, how much as a proportion of the value of such work or works would be so sub-contracted; or



(b) require as a term of the public works concession contract—



(i) that the concessionaire sub-contract to economic operators which are not related to the concessionaire some or all of the work or works to be carried out under the concession contract; and

(ii) that the amount of the work or works so sub-contracted be not less than 30% , or such higher percentage as may be specified in the contract at the option of the concessionaire, of the value of the consideration which the contracting authority would expect to give for the carrying out of the work or works if it did not grant a concession.



    (2) Where the concessionaire is a contracting authority, that contracting authority shall comply with the provisions of these Regulations in respect of any public works contract in relation to which it seeks offers for the purpose of sub-contracting the work or works to be carried out under the public works concession contract.

    (3) Where the concessionaire is not a contracting authority, the concessionaire shall—



(a) publicise its intention to seek offers in relation to any contract to which this paragraph applies by virtue of paragraph (4) by sending to the Official Journal as soon as possible after forming the intention a notice in the form of the contract notice for contracts to be awarded by a concessionaire in Annex XI to Commission Regulation (EC) No 1564/2005 and containing the information therein specified and any other information which the concessionaire considers useful;

(b) comply with regulation 42 in relation to that contract notice as if the concessionaire were a contracting authority; and

(c) subject to paragraphs (5), (6) and (9)—


(i) if that contract notice invites tenders, fix as the last date for the receipt by the concessionaire of tenders a date of not less than 40 days from the date of the despatch of the notice and specify that date in that notice; or

(ii) if that contract notice invites applications to be selected to tender for or negotiate the contract—


(aa) fix as the last date for the receipt of those applications a date not less than 37 days from the date of despatch of the notice and specify that date in that notice; and

(bb) fix as the last date for the receipt by it of tenders following selection of the economic operators to be invited to tender a date of not less than 40 days from the date of despatch of the invitation and specify that date in the invitation.



    (4) Paragraph (3) applies to a contract—



(a) in relation to which the concessionaire is seeking offers for the purpose of sub-contracting any of the work or works to be carried out under the public works concession contract;

(b) which the concessionaire does not intend to enter into with an economic operator
who is—
(i) a member of the group of economic operators which acted jointly for the purpose of obtaining the public works concession contract; or
(ii) related to it or to any member of that group; and

(c) which would, if the concessionaire were a contracting authority, be a public works contract, other than a public works contract—


(i) in respect of which a contracting authority would be entitled to use the negotiated procedure in accordance with regulation 14; or

(ii) which is excluded from the application of these Regulations by regulation 6 or 8.



    (5) Where the concessionaire has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limits referred to in paragraph (3)(c) may be reduced by 7 days.

    (6) The concessionaire may reduce the time limits for the receipt by it of tenders by 5 days provided that—



(a) the concessionaire offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.



    (7) The concessionaire shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator provided that the documents are requested in good time and any fee specified in the contract notice has accompanied the request.

    (8) The concessionaire shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the concessionaire to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (9) The concessionaire shall extend the time limit for the receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—



(a) an economic operator requests the contract documents in sufficient time to allow the concessionaire to respond in accordance with paragraphs (7) and (8) and, for whatever reason, the contract documents are not supplied by that date; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.



    (10) The concessionaire may combine the reduction in the periods of time referred to in paragraphs (5) and (6).

    (11) In this regulation an economic operator is to be treated as related to another economic operator—



(a) if one economic operator exercises, directly or indirectly, a dominant influence over the other; or

(b) if both those economic operators are subject to the dominant influence of another economic operator.



    (12) An economic operator shall be taken to exercise a dominant influence over another economic operator for the purposes of paragraph (11)—



(a) if it possesses the greater part of the issued share capital of that economic operator or controls the voting power attached to such greater part; or

(b) if it may appoint more than half of the individuals which are ultimately responsible for managing that economic operator's affairs.



    (13) A contracting authority shall require applicants for a public works concession contract to submit with the application a list of—
(a) all economic operators which are related to the applicant, and


(b) all economic operators which are related to the economic operators referred
to in sub-paragraph (a)
and to submit an updated list from time to time to take account of any changes in the
economic operators referred to in sub-paragraphs (a) and (b).

PART 7
MATTERS RELATING TO A PUBLIC CONTRACT
Obligations relating to taxes, environmental protection, employment protection and working conditions
     38. —(1) A contracting authority may include in the contract documents relating to a public works contract or to a public services contract information as to where a contractor or services provider may obtain information about the obligations relating to taxes, environmental protection, employment protection and working conditions which will apply to—


(a) the work or works to be carried out under a public works contract; or

(b) the services to be provided under a public services contract.



    (2) A contracting authority which provides the information referred to in paragraph (1) shall request contractors or services providers to indicate that they have taken account of the obligations relating to those employment protection provisions and those working conditions in preparing their tender or in negotiating the contract.

Conditions for performance of contracts
     39. —(1) A contracting authority may stipulate conditions relating to the performance of a public contract, provided that those conditions are compatible with Community law and are indicated in—



(a) the contract notice and the contract documents; or

(b) the contract documents.



    (2) The conditions referred to in paragraph (1) may, in particular, include social and environmental considerations.





PART 8
MISCELLANEOUS
Statistical and other reports
     40. —(1) Subject to regulation 41, a contracting authority shall, not later than 31st July in each year, send to the Office of Government Commerce a report specifying in relation to each public contract awarded by it or framework agreement concluded by it during the reporting period—


(a) whether the contract was a public services contract, a public supply contract or a public works contract;

(b) whether the framework agreement was for the provision of services, for the purchase or hire of goods or for the carrying out of work or works;

(c) the value (estimated if necessary) of the consideration payable under the contract or framework agreement;

(d) whether the open procedure, the restricted procedure, the negotiated procedure or the competitive dialogue procedure was used;

(e) if the negotiated procedure was used, under which provision of regulation 13 or 14 that procedure was used;

(f) in the case of—


(i) a public services contract or a framework agreement for the provision of services, the principal category of service provided or to be provided under the contract or framework agreement according to the nomenclature used in Schedule 3;

(ii) a public supply contract or a framework agreement for the purchase or hire of goods, the type of goods purchased or hired or to be purchased or hired under the contract or framework agreement; and

(iii) a public works contract or a framework agreement for the carrying out of works, the principal category of works carried out or to be carried out under the contract or framework agreement according to the nomenclature used in Schedule 2; and



(g) the nationality of any economic operator to which the contract was awarded or the framework agreement was concluded and the relevant State in which that economic operator is established.



    (2) Subject to regulation 41, a contracting authority shall send to the Office of Government Commerce a report containing such other information as the Office of Government Commerce may from time to time require in respect of a particular public contract or framework agreement (including a public contract or framework agreement which is excluded from the application of these Regulations by regulation 6 or 8) for the purposes of providing the Commission with information.

    (3) In this regulation "the reporting period" means the year preceding the year in which the reports referred to in paragraph (1) are to be made.

Provision of reports
     41. —(1) Where a contracting authority—



(a) is not a Minister of the Crown or a government department; and

(b) is required in accordance with these Regulations to send a report to the Office of Government Commerce;



it shall instead send the report to the Minister responsible for that contracting authority and that Minister shall be responsible for sending the report to the Office of Government Commerce.

    (2) The Minister responsible for a contracting authority shall be the Minister of the Crown whose areas of responsibility are most closely connected with the functions of the contracting authority.

    (3) Any question as to which Minister of the Crown's areas of responsibility are most closely connected with the functions of a contracting authority in accordance with paragraph (2) shall be determined by the Office of Government Commerce whose determination is final.

    (4) The requirement on a contracting authority to send any report in accordance with paragraph (1) to the Minister of the Crown responsible for that contracting authority shall be enforceable, on the application of the Minister responsible to the High Court, by mandatory order.

    (5) In the application of this regulation to Northern Ireland references to the Minister shall include references to the head of a Northern Ireland department.

Publication of notices
     42. —(1) Any notice required by these Regulations to be sent to the Official Journal shall be—



(a) in the correct format and contain the necessary information specified by Commission Regulation (EC) No 1564/2005 and contain any other information which the contracting authority considers useful; and

(b) subject to paragraph (2), sent to the Office for Official Publications of the European Union by electronic means in the format and in accordance with the procedures specified in paragraph (3) of Annex VIII to the Public Sector Directive or by other means.



    (2) Where the contracting authority is applying the restricted procedure or the negotiated procedure and, for reasons of urgency, is applying the provisions of regulation 16(6), 16(17) or 17(8) the notice shall be sent by facsimile or by electronic means in the format and in accordance with the procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive.

    (3) Where a notice is not sent by electronic means in accordance with paragraph (1)(b) or (2), it shall not contain more than 650 words.

    (4) The contracting authority shall not place a notice in any publication—



(a) before the date on which the notice is despatched in accordance with paragraph (1)(b) or (2); or

(b) which contains any additional information to that contained in the notice despatched in accordance with paragraph (1)(b) or (2) or published on the contracting authority's buyer profile in accordance with regulation 11(1).



    (5) The contracting authority shall refer in the notice to the date of despatch of that notice to the Official Journal or the date of its publication on its buyer profile where it publishes a notice in the circumstances referred to in paragraph (4).

    (6) The contracting authority shall not publish a prior information notice on its buyer profile before the date on which notice of its publication in that form is despatched to the Commission in accordance with regulation 11(3) and the contracting authority shall refer to the date of that despatch on its buyer profile.

    (7) The contracting authority shall retain evidence of the date of despatch to the Official Journal of each notice.

    (8) Where the contracting authority is not required to send a contract notice to the Official Journal in respect of a particular public contract or framework agreement it may nevertheless publish such a notice in accordance with the provisions of this regulation.

Confidentiality of information
     43. —(1) Subject to the provisions of these Regulations, a contracting authority shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.

    (2) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders.

Means of communication
     44. —(1) A contracting authority may specify that any communication referred to in these Regulations may be made—



(a) by post;

(b) by facsimile;

(c) by electronic means in accordance with paragraphs (4) and (5);

(d) by telephone in the circumstances referred to in paragraph (8); or

(e) by any combination of those means of communication.



    (2) The means of communication specified by a contracting authority shall be generally available and shall not restrict economic operators' access to the contract award procedures specified in these Regulations.

    (3) A contracting authority shall ensure that the specified means of communication and the storage of information enables—



(a) the integrity of data provided by economic operators and the confidentiality of tenders and requests to be selected to tender for or to negotiate the contract to be maintained; and

(b) tenders and requests to be selected to tender for or to negotiate the contract to be opened only after the time limit for their submission has expired.



    (4) The equipment used for communications made by electronic means shall be—



(a) non-discriminatory;

(b) generally available; and

(c) interoperable with information and communication technology products in general use.



    (5) Where a contracting authority requires that tenders and requests to be selected to tender for or to negotiate the contract are to be transmitted by electronic means, it shall ensure that—



(a) details of the equipment including any software which is necessary for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract, including encryption, are available to all interested economic operators; and

(b) the equipment for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract complies with the requirements of paragraph (6).



    (6) The requirements referred to in paragraph (5)(b) are—



(a) electronic signatures relating to tenders and requests to participate comply with national provisions adopted in accordance with Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures[41];

(b) the exact time and date of the receipt of tenders and requests to participate are capable of being determined precisely;

(c) it may reasonably be considered that—


(i) data is not capable of being accessed before the time limits specified by the contracting authority; and

(ii) any such unauthorised access is clearly detectable;



(d) only authorised persons shall set or change the dates for opening data received from economic operators;

(e) access to any data shall be possible only through simultaneous action by authorised persons and only after the prescribed date; and

(f) data received and opened in accordance with these requirements must remain accessible only to authorised persons.



    (7) A contracting authority may require any documents, certificates and declarations referred to in regulations 23, 24, 25, 26 and 27 which do not exist in electronic format to be submitted before the time limit has expired for the receipt by it of tenders or requests to be selected to tender for or to negotiate the contract.

    (8) Requests to be selected to tender for or to negotiate the contract may be made—



(a) in writing; or

(b) by telephone.



    (9) Where a request to be selected to tender for or to negotiate the contract is made by telephone, an economic operator shall confirm the request in writing before the deadline for receipt of such requests has expired.

    (10) Where a request to be selected to tender for or to negotiate the contract is made by facsimile, a contracting authority—



(a) may require that the request be confirmed by post or by electronic means where this is necessary for the purposes of legal proof; and

(b) shall specify any requirement for such confirmation and the time limit for sending it in the contract notice.



Sub-contracting
     45. A contracting authority may require an economic operator to indicate in its tender—



(a) any part of the contract that the economic operator intends to sub-contract to any other person; and

(b) the identity of any person to whom that economic operator proposes to sub-contract any part of the contract.



Public service bodies
     46. —(1) Where a contracting authority, other than one which is a contracting authority only by reason of being a Schedule 1 entity, grants to a person other than a contracting authority, special or exclusive rights to carry on a service for the benefit of the public, it shall impose an express duty on that person in the terms referred to in paragraph (2).

    (2) The duty referred to in paragraph (1) is a duty not to discriminate in seeking offers in relation to, or in awarding, a contract for the purchase or hire of goods on the grounds—



(a) of nationality, against a person who is a national of and established in a relevant State; or

(b) that the goods to be supplied under the contract originate in another relevant State.







PART 9
APPLICATIONS TO THE COURT



Interpretation of Part 9

47.—(1) In this Part, except where the context otherwise requires—

“claim form” includes, in Northern Ireland, the originating process by which the proceedings are commenced;

“contract”, except in regulation 47O, means a public contract or a framework agreement;

“contracting authority” has the extended meaning given to it by regulation 47A(3);

“declaration of ineffectiveness” means a declaration made under regulation 47J(2)(a) or 47O(3);

“economic operator” has the extended meaning given to it by regulations 47A(3) and 47B(4);

“grounds for ineffectiveness” has the meaning given to it by regulation 47K;

“proceedings” means court proceedings taken for the purposes of regulation 47C; and

“standstill period”, and references to its end, have the same meaning as in regulation 32A.

(2) In this Part, except in regulation 47D(2), any reference to a period of time, however expressed, is to be interpreted subject to the requirement that, if the period would otherwise have ended on a day which is not a working day, the period is to end at the end of the next working day.

Duty owed to economic operators

47A.—(1) This regulation applies to the obligation on—

(a)a contracting authority to comply with—

(i)the provisions of these Regulations, other than regulations 14(2), 30(9), 32(14), 40 and 41(1); and

(ii)any enforceable Community obligation in respect of a contract or design contest (other than one excluded from the application of these Regulations by regulation 6, 8 or 33); and

(b)a concessionaire to comply with the provisions of regulation 37(3).

(2) That obligation is a duty owed to an economic operator.

(3) Where the duty owed in accordance with this regulation is the obligation on a concessionaire to comply with the provisions of regulation 37(3)—

(a)references in this Part to a “contracting authority” include, despite regulation 3, the concessionaire; and

(b)references in this Part to an “economic operator” include, despite regulation 4, any person—

(i)who sought, who seeks or would have wished, to be the person to whom a contract to which regulation 37(3) applies is awarded; and

(ii)who is a national of a relevant State and established in a relevant State.

Duty owed to GPA economic operators

47B.—(1) Subject to paragraphs (2) and (3), the duty owed to an economic operator in accordance with regulation 47A is a duty owed also to a GPA economic operator.

(2) The duty is not owed in relation to—

(a)a Part B services contract;

(b)a contract for research and development services specified in category 8 of Part A of Schedule 3;

(c)regulation 34;

(d)regulation 36;

(e)regulation 37(1); or

(f)regulation 37(2).

(3) The duty owed to a GPA economic operator in accordance with this regulation is owed by the Secretary of State for Defence only in relation to public supply contracts for the purchase or hire of goods specified in Schedule 5.

(4) References to an “economic operator” in this Part, except in regulation 47A or in relation to the duty owed in accordance with that regulation, also include a GPA economic operator.

(5) In this regulation—

“GPA economic operator” means a person from a GPA State who sought, who seeks, or would have wished, to be the person to whom the contract is awarded;

“GPA State” means any country, other than a relevant State, which at the relevant time is a signatory to the GPA and has agreed with the European Community that the GPA shall apply to a contract of the type to be awarded; and

“relevant time” means the date on which the contracting authority sent a contract notice in respect of the contract to the Official Journal or would have done so if it had been required by these Regulations to do so.













Enforcement of duties through the Court

47C.—(1) A breach of the duty owed in accordance with regulation 47A or 47B is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage.

(2) Proceedings for that purpose must be started in the High Court, and regulations 47D to 47P apply to such proceedings.

General time limits for starting proceedings

47D.—(1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.

(2) Subject to paragraphs (3) and (4), such proceedings must be started promptly and in any event within 3 months beginning with the date when grounds for starting the proceedings first arose.

(3) Paragraph (2) does not require proceedings to be started before the end of any of the following periods—

(a)where the proceedings relate to a decision which is sent to the economic operator by facsimile or electronic means, 10 days beginning with—

(i)the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision;

(ii)if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

(b)where the proceedings relate to a decision which is sent to the economic operator by other means, whichever of the following periods ends first—

(i)15 days beginning with—

(aa)the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision; or

(bb)if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

(ii)10 days beginning with—

(aa)the day after the date on which the decision is received, if the decision is accompanied by a summary of the reasons for the decision; or

(bb)if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

(c)where sub-paragraphs (a) and (b) do not apply but the decision is published, 10 days beginning with the day on which the decision is published.

(4) The Court may extend the time limits imposed by this regulation (but not the limits imposed by regulation 47E) where the Court considers that there is a good reason for doing so.

(5) For the purposes of this regulation, proceedings are to be regarded as started only when the claim form is served in compliance with regulation 47F(1).

Special time limits for seeking a declaration of ineffectiveness

47E.—(1) This regulation limits the time within which proceedings may be started where the proceedings seek a declaration of ineffectiveness.

(2) Such proceedings must be started—

(a)where paragraph (3) or (5) applies, within 30 days beginning with the relevant date mentioned in that paragraph;

(b)in any other case, within 6 months beginning with the day after the date on which the contract was entered into.

(3) This paragraph applies where a relevant contract award notice has been published in the Official Journal, in which case the relevant date is the day after the date on which the notice was published.

(4) For that purpose, a contract award notice is relevant if, and only if—

(a)the contract was awarded without prior publication of a contract notice; and

(b)the contract award notice includes justification of the decision of the contracting authority to award the contract without prior publication of a contract notice.

(5) This paragraph applies where the contracting authority has informed the economic operator of—

(a)the conclusion of the contract; and

(b)a summary of the relevant reasons,

in which case the relevant date is the day after the date on which the economic operator was informed of the conclusion or, if later, was informed of a summary of the relevant reasons.

(6) In paragraph (5), “the relevant reasons” means the reasons which the economic operator would have been entitled to receive in response to a request under regulation 32(9).

(7) In this regulation, “contract award notice” means a notice in accordance with regulation 31(1).

(8) For the purposes of this regulation, proceedings are to be regarded as started only when the claim form is served in compliance with regulation 47F(1).

Starting proceedings

47F.—(1) Where proceedings are to be started, the economic operator must, after filing the claim form, serve it on the contracting authority.

(2) Paragraph (3) applies where proceedings are started—

(a)seeking a declaration of ineffectiveness; or

(b)alleging a breach of regulation 32A, 47G or 47H(1)(b) where the contract has not been fully performed.

(3) In those circumstances, the economic operator must, as soon as practicable, send a copy of the claim form to each person, other than the contracting authority, who is a party to the contract in question.

(4) The contracting authority must, as soon as practicable, comply with any request from the economic operator for any information that the economic operator may reasonably require for the purpose of complying with paragraph (3).

(5) In this regulation, “serve” means serve in accordance with rules of court, and for the purposes of this regulation a claim form is deemed to be served on the day on which it is deemed by rules of court to be served.




Contract-making suspended by challenge to award decision

47G.—(1) Where—

(a)proceedings are started in respect of a contracting authority’s decision to award the contract; and

(b)the contract has not been entered into,

the starting of the proceedings requires the contracting authority to refrain from entering into the contract.

(2) The requirement continues until any of the following occurs—

(a)the Court brings the requirement to an end by interim order under regulation 47H(1)(a);

(b)the proceedings at first instance are determined, discontinued or otherwise disposed of and no order has been made continuing the requirement (for example in connection with an appeal or the possibility of an appeal).

(3) For the purposes of paragraph (1), proceedings are to be regarded as started only when the claim form is served in compliance with regulation 47F(1).

(4) This regulation does not affect the obligations imposed by regulation 32A.

Interim orders

47H.—(1) In proceedings, the Court may, where relevant, make an interim order—

(a)bringing to an end the requirement imposed by regulation 47G(1);

(b)restoring or modifying that requirement;

(c)suspending the procedure leading to—

(i)the award of the contract; or

(ii)the determination of the design contest,

in relation to which the breach of the duty owed in accordance with regulation 47A or 47B is alleged;

(d)suspending the implementation of any decision or action taken by the contracting authority in the course of following such a procedure.

(2) When deciding whether to make an order under paragraph (1)(a)—

(a)the Court must consider whether, if regulation 47G(1) were not applicable, it would be appropriate to make an interim order requiring the contracting authority to refrain from entering into the contract; and

(b)only if the Court considers that it would not be appropriate to make such an interim order may it make an order under paragraph (1)(a).

(3) If the Court considers that it would not be appropriate to make an interim order of the kind mentioned in paragraph (2)(a) in the absence of undertakings or conditions, it may require or impose such undertakings or conditions in relation to the requirement in regulation 47G(1).

(4) The Court may not make an order under paragraph (1)(a) or (b) or (3) before the end of the standstill period.

(5) This regulation does not prejudice any other powers of the Court.

Remedies where the contract has not been entered into

47I.—(1) Paragraph (2) applies where—

(a)the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 47A or 47B; and

(b)the contract has not yet been entered into.

(2) In those circumstances, the Court may do one or more of the following—

(a)order the setting aside of the decision or action concerned;

(b)order the contracting authority to amend any document;

(c)award damages to an economic operator which has suffered loss or damage as a consequence of the breach.

(3) This regulation does not prejudice any other powers of the Court.

Remedies where the contract has been entered into

47J.—(1) Paragraph (2) applies if—

(a)the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 47A or 47B; and

(b)the contract has already been entered into.

(2) In those circumstances, the Court—

(a)must, if it is satisfied that any of the grounds for ineffectiveness applies, make a declaration of ineffectiveness in respect of the contract unless regulation 47L requires the Court not to do so;

(b)must, where required by regulation 47N, impose penalties in accordance with that regulation;

(c)may award damages to an economic operator which has suffered loss or damage as a consequence of the breach, regardless of whether the Court also acts as described in sub-paragraphs (a) and (b);

(d)must not order any other remedies.

(3) Paragraph (2)(d) is subject to regulation 47O(3) and (9) (additional relief in respect of specific contracts where a framework agreement is ineffective) and does not prejudice any power of the Court under regulation 47M(3) or 47N(10) (orders which supplement a declaration of ineffectiveness or a contract-shortening order)




Grounds for ineffectiveness

47K.—(1) There are three grounds for ineffectiveness.

The first ground

(2) Subject to paragraph (3), the first ground applies where the contract has been awarded without prior publication of a contract notice in any case in which these Regulations required the prior publication of a contract notice.

(3) The first ground does not apply if all the following apply—

(a)the contracting authority considered the award of the contract without prior publication of a contract notice to be permitted by these Regulations;

(b)the contracting authority has had published in the Official Journal a voluntary transparency notice expressing its intention to enter into the contract; and

(c)the contract has not been entered into before the end of a period of at least 10 days beginning with the day after the date on which the voluntary transparency notice was published in the Official Journal.

(4) In paragraph (3), “voluntary transparency notice” means a notice—

(a)which contains the following information—

(i)the name and contact details of the contracting authority;

(ii)a description of the object of the contract;

(iii)a justification of the decision of the contracting authority to award the contract without prior publication of a contract notice;

(iv)the name and contact details of the economic operator to be awarded the contract; and

(v)where appropriate, any other information which the contracting authority considers it useful to include; and

(b)which, if Commission Regulation (EC) No 1564/2005 as amended from time to time sets out a form to be used for the purposes of paragraph (3), is in that form.

The second ground

(5) The second ground applies where all the following apply—

(a)the contract has been entered into in breach of any requirement imposed by—

(i)regulation 32A (the standstill period);

(ii)regulation 47G (contract-making suspended by challenge to award); or

(iii)regulation 47H(1)(b) (interim order restoring or modifying a suspension originally imposed by regulation 47G);

(b)there has also been a breach of the duty owed to the economic operator in accordance with regulation 47A or 47B in respect of obligations other than those imposed by regulation 32A (the standstill period) and this Part;

(c)the breach mentioned in sub-paragraph (a) has deprived the economic operator of the possibility of starting proceedings in respect of the breach mentioned in sub-paragraph (b), or pursuing them to a proper conclusion, before the contract was entered into; and

(d)the breach mentioned in sub-paragraph (b) has affected the chances of the economic operator obtaining the contract.

The third ground

(6) Subject to paragraph (7), the third ground applies where all the following apply—

(a)the contract is based on a framework agreement or was awarded under a dynamic purchasing system;

(b)the contract was awarded in breach of any requirement imposed by—

(i)regulation 19(7)(b), (8) and (9) (award of particular contracts under framework agreements through re-opening of competition); or

(ii)regulation 20(11) to (14) (award of contracts under dynamic purchasing systems); and

(c)the estimated value of the contract exceeds the relevant threshold for the purposes of regulation 8.

(7) The third ground does not apply if all the following apply—

(a)the contracting authority considered the award of the contract to be in accordance with the provisions mentioned in paragraph (6)(b)(i) or (ii);

(b)the contracting authority has, despite regulation 32(7), voluntarily complied with the requirements set out in regulation 32(1) to (2A); and

(c)the contract has not been entered into before the end of the standstill period.

General interest grounds for not making a declaration of ineffectiveness

47L.—(1) Where the Court is satisfied that any of the grounds for ineffectiveness applies, the Court must not make a declaration of ineffectiveness if—

(a)the contracting authority or another party to the proceedings raises an issue under this regulation; and

(b)the Court is satisfied that overriding reasons relating to a general interest require that the effects of the contract should be maintained.

(2) For that purpose, economic interests in the effectiveness of the contract may be considered as overriding reasons only if in exceptional circumstances ineffectiveness would lead to disproportionate consequences.

(3) However, economic interests directly linked to the contract cannot constitute overriding reasons relating to a general interest.

(4) For that purpose, economic interests directly linked to the contract include—

(a)the costs resulting from the delay in the execution of the contract;

(b)the costs resulting from the commencement of a new procurement procedure;

(c)the costs resulting from change of the economic operator performing the contract; and

(d)the costs of legal obligations resulting from the ineffectiveness.

(5) For the purposes of paragraph (1)(b), overriding reasons may be taken to require that the effects of the contract should be maintained even if they do not require the Court to refrain from shortening the duration of the contract by an order under regulation 47N(3)(a).

The consequences of ineffectiveness

47M.—(1) Where a declaration of ineffectiveness is made, the contract is to be considered to be prospectively, but not retrospectively, ineffective as from the time when the declaration is made and, accordingly, those obligations under the contract which at that time have yet to be performed are not to be performed.

(2) Paragraph (1) does not prevent the exercise of any power under which the orders or decisions of the Court may be stayed, but at the end of any period during which a declaration of ineffectiveness is stayed, the contract is then to be considered to have been ineffective as from the time when the declaration had been made.

(3) When making a declaration of ineffectiveness, or at any time after doing so, the Court may make any order that it thinks appropriate for addressing—

(a)the implications of paragraph (1) or (2) for the particular circumstances of the case;

(b)any consequential matters arising from the ineffectiveness.

(4) Such an order may, for example, address issues of restitution and compensation as between those parties to the contract who are parties to the proceedings so as to achieve an outcome which the Court considers to be just in all the circumstances.

(5) Paragraph (6) applies where the parties to the contract have, at any time before the declaration of ineffectiveness is made, agreed by contract any provisions for the purpose of regulating their mutual rights and obligations in the event of such a declaration being made.

(6) In those circumstances, the Court must not exercise its power to make an order under paragraph (3) in any way which is inconsistent with those provisions, unless and to the extent that the Court considers that those provisions are incompatible with the requirement in paragraph (1) or (2).




Penalties in addition to, or instead of, ineffectiveness

47N.—(1) Where the Court makes a declaration of ineffectiveness, it must also order that the contracting authority pay a civil financial penalty of the amount specified in the order.

(2) Paragraph (3) applies where—

(a)in proceedings for a declaration of ineffectiveness, the Court is satisfied that any of the grounds for ineffectiveness applies but does not make a declaration of ineffectiveness because regulation 47L requires it not to do so; or

(b)in any proceedings, the Court is satisfied that the contract has been entered into in breach of any requirement imposed by regulation 32A, 47G or 47H(1)(b), and does not make a declaration of ineffectiveness (whether because none was sought or because the Court is not satisfied that any of the grounds for ineffectiveness applies).

(3) In those circumstances, the Court must order at least one, and may order both, of the following penalties—

(a)that the duration of the contract be shortened to the extent specified in the order;

(b)that the contracting authority pay a civil financial penalty of the amount specified in the order.

(4) When the Court is considering what order to make under paragraph (1) or (3), the overriding consideration is that the penalties must be effective, proportionate and dissuasive.

(5) In determining the appropriate order, the Court must take account of all the relevant factors, including—

(a)the seriousness of the relevant breach of the duty owed in accordance with regulation 47A or 47B;

(b)the behaviour of the contracting authority;

(c)where the order is to be made under paragraph (3), the extent to which the contract remains in force.

(6) Where more than one economic operator starts proceedings in relation to the same contract, paragraph (4) applies to the totality of penalties imposed in respect of the contract.

Civil financial penalties

(7) Where a contracting authority is ordered by the High Court of England and Wales to pay a civil financial penalty under this regulation—

(a)the Court’s order must state that the penalty is payable to the Treasury;

(b)the Court must send a copy of the order to the Office of Government Commerce;

(c)the contracting authority must pay the penalty to the Treasury through the Office of Government Commerce; and