The Public Contracts (Works, Services and Supply) (Amendment) Regulations 2000

Amendment of the Public Works Regulations

3.—(1) Regulation 2 of the Public Works Regulations (interpretation) shall be amended—

(a) in regulation 2(1),

(i) by inserting the following definitions—

““Government Procurement Agreement” means the Agreement on Government Procurement between certain parties to the World Trade Organisation (WTO) Agreement signed in Marrakesh on 15 April 1994(1),

“GPA” means the Government Procurement Agreement,”;

(ii) by omitting the definition of “ECU”;

(iii) by substituting the following definition for the definition of “relevant State”—

““relevant State” means a member State or a State for the time being specified in Schedule 3 to these Regulations;”;

(b) by omitting regulation 2(2).

(2) Regulation 3 of the Public Works Regulations (contracting authorities) shall be replaced by—

“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 Parliamentary Body Corporate,

(g) the National Assembly for Wales,

(h) a local authority,

(i) a fire authority constituted by a combination scheme under the Fire Services Act 1947(2),

(j) the Fire Authority for Northern Ireland,

(k) a police authority established under section 3 of the Police Act 1996(3),

(l) a police authority established under section 2 of the Police (Scotland) Act 1967(4),

(m) the Police Authority for Northern Ireland,

(n) an authority established under section 10 of the Local Government Act 1985(5),

(o) a joint authority established by Part IV of that Act,

(p) any body established pursuant to an order under section 67 of that Act,

(q) the Broads Authority,

(r) any joint board the constituent members of which consist of any of the bodies specified in paragraphs (h), (i), (k), (l), (n), (o) and (p) and (q), above,

(s) a National Park authority established by an Order under section 63 of the Environment Act 1995(6),

(t) the Receiver for the Metropolitan Police District(7),

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

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

(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, being appointed by another contracting authority,

(v) an association of or formed by one or more of the above, and

(w) to the extent not specified in sub-paragraphs (a) to (t) above, an entity specified in Schedule 1 to the Public Supply Contracts Regulations 1995(8).

(2) In the application of these Regulations to England, “local authority” in paragraph (1) above means—

(a) a county council, a district council, a London borough council, a parish council, a community council or 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.

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

(4) In the application of these Regulations to Scotland, “local authority” in paragraph (1) above has the same meaning as in section 235(1) of the Local Government (Scotland) Act 1973(9) and also includes joint board or joint committee within the meaning of section 235(1).

(5) In the application of these Regulations to Northern Ireland, “local authority” in paragraph (1) above means a district council within the meaning of the Local Government Act (Northern Ireland) 1972(10).

(6) Where an entity specified in paragraph (1) above 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.”.

(3) Regulation 4(1)(b) of the Public Works Regulations (contractors) shall be replaced by—

“(b) who is a national of and established in a relevant State.”.

(4) Regulation 7(1) of the Public Works Regulations (thresholds) shall be replaced by—

“(1) These Regulations shall not apply to the seeking of offers in relation to-

(a) a proposed public works contract where the estimated value of the contract (net of value added tax) at the relevant time is less than the euro equivalent of 5,000,000 special drawing rights;

(b) a proposed public works concession contract or a proposed subsidised works contract under regulation 23 where the estimated value of the contract (net of value added tax) at the relevant time is less than 5,000,000 euro.”.

(5) In regulation 7 of the Public Works Regulations (thresholds) the following paragraph shall be inserted after paragraph (1)—

“(1A) The value in pounds sterling of any amount expressed in this regulation in euro or in the euro equivalent of special drawing rights shall be calculated by reference to the rate for the time being applying for the purposes of Council Directive 93/37/EEC(11) as published from time to time in the Official Journal(12).”.

(6) Regulation 11(4) of the Public Works Regulations (the open procedure) shall be replaced by—

“(4) Where—

(a) the contracting authority has published a prior information notice in accordance with regulation 9 above;

(b) the prior information notice contained as much of the information referred to in Part B of Schedule 2 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 no more than 12 months before the date on which the contract notice provided for in regulation 11(2) is despatched;

the contracting authority may substitute for the period of not less than 52 days specified in paragraph (3) above a shorter period of generally no less than 36 days and in any event no less than 22 days, provided in each case that the period is sufficient to allow for effective tendering.”.

(7) The following paragraphs shall be added to regulation 11 of the Public Works Regulations (the open procedure)—

“(8) Tenders shall be submitted in writing either in person or by post, except that a contracting authority may authorise another means of submission provided that the chosen means enables—

(a) each tender to contain all the information necessary for its evaluation;

(b) the confidentiality of tenders to be maintained pending their evaluation; and

(c) tenders to be opened only after the time limit for their submission has expired.

(9) Where a contracting authority has authorised another means of submission in accordance with paragraph (8) above, it may require either that the submission of the tender is confirmed in writing or that a copy of the tender is delivered to it in person or by post in either case as soon as possible after the submission of the tender by another means.”.

(8) Regulation 12(12) of the Public Works Regulations (the restricted procedure) shall be replaced by—

“(12) Subject to paragraph (14) below, where—

(a) the contracting authority has published a prior information notice in accordance with regulation 9 above;

(b) the prior information notice contained as much of the information referred to in Part C (or, if appropriate, Part D) of Schedule 2 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 no more than 12 months before the date on which the contract notice provided for in regulation 12(2) is despatched;

the contracting authority may substitute for the period of not less than 40 days in paragraph (11) above, a period of not less than 26 days.”.

(9) The following paragraphs shall be added to regulation 12 of the Public Works Regulations (the restricted procedure)—

“(16) Tenders shall be submitted in writing either in person or by post, except that a contracting authority may authorise another means of submission provided that the chosen means enables—

(a) each tender to contain all the information necessary for its evaluation;

(b) the confidentiality of tenders to be maintained pending their evaluation; and

(c) tenders to be opened only after the time limit for their submission has expired.

(17) Where a contracting authority has authorised another means of submission in accordance with paragraph (16) above, it may require either that the submission of the tender is confirmed in writing or that a copy of the tender is delivered to it in person or by post, in either case as soon as possible after the submission of the tender by another means.”.

(10) Regulation 22 of the Public Works Regulations (information about contract award procedures) shall be replaced by—

“Information about contract award procedures

22.— (1) Where a contracting authority decides either to abandon or to recommence an award procedure in respect of which a contract notice has been published it shall inform the Office for Official Publications of the European Communities(13) and shall inform promptly any contractor who submitted an offer or who applied to be included amongst the persons to be selected to tender for or to negotiate the contract of the reasons for its decision and shall do so in writing if so requested.

(2) Subject to paragraph (3) below, a contracting authority shall, within 15 days of the date on which it receives a request in writing from any contractor who was unsuccessful (whether pursuant to regulation 11(7), 12(4), 12(5), 13(7), 13(8) or 20), inform that contractor of the reasons why he was unsuccessful and, if the contractor submitted an admissible tender, the contracting authority shall inform him of the characteristics and relative advantages of the successful tender as well as the name of the person awarded the contract.

(3) A contracting authority may withhold any information to be provided in accordance with paragraph (2) above where the disclosure of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any person or might prejudice fair competition between contractors.

(4) A contracting authority shall prepare a record in relation to each public works contract awarded by it specifying—

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

(b) the work or works to be carried out under the contract and the value of the consideration to be given under it;

(c) the names of the persons whose offers were evaluated in accordance with regulation 20 and, where the contracting authority has used the restricted or negotiated procedure, the reasons why those persons were selected;

(d) the names of the persons who were unsuccessful pursuant to regulation 11(7), 12(4), 12(5), 13(7) or 13(8) and the reasons why they were unsuccessful;

(e) the name of the person to whom the public works contract was awarded and the reasons for having awarded the contract to him;

(f) if known to the contracting authority, the works under the contract which the person to whom the contract has been awarded intends to sub-contract to another person; and

(g) in the case of a contracting authority which used the negotiated procedure, which of the circumstances specified in regulation 10(2) constituted grounds for using that procedure.

(5) If the Commission requests a report containing the information specified in paragraph (4) above, the contracting authority shall send a written report containing that information, or the main features of it, to the Treasury for onward transmission to the Commission.”.

(11) Regulation 28 of the Public Works Regulations (statistical and other reports) shall be replaced by—

“Statistical and other reports

28.— (1) A contracting authority shall, no later than 31st July in each year, send to the Treasury a report specifying, in relation to each public works contract awarded by it during the reporting period—

(a) the value (estimated if necessary) of the consideration payable under the contract;

(b) whether the open, restricted or negotiated procedure was used;

(c) if the negotiated procedure was used, pursuant to which provision of regulation 10(2) that procedure was used;

(d) the principal category of work carried out or to be carried out under the contract according to the nomenclature used in Schedule 1; and

(e) the nationality of the person to whom the contract was awarded.

(2) Entities specified in Schedule 1 to the Public Supply Contracts Regulations 1995(14) or any body which is a successor to such an entity and which is a contracting authority shall include in the report referred to in paragraph (1) above the aggregate value (estimated if necessary) of all public works contracts awarded by it during the reporting period which were below the relevant threshold specified in regulation 7.

(3) A contracting authority shall send to the Treasury a report containing such other information as the Treasury may from time to time require in respect of a particular public works contract (including public works contracts excluded from the application of these Regulations by regulations 6 and 7) for the purposes of informing the Commission.

(4) In this regulation “the reporting period” means the year preceding the year in which the report referred to in paragraph (1) above is to be made.”.

(12) Regulation 31 of the Public Works Regulations (enforcement of obligations relating to a public works contract) shall be amended—

(a) by inserting the following paragraphs after paragraph (1)—

“(1A) The duty owed to a contractor pursuant to paragraph (1) above, except in relation to regulations 23, 25 and 26 (1) and(2), shall be a duty owed also to a GPA provider.

(1B) References to a “contractor” in paragraphs (3), (5) and (6) below shall be construed as including a reference to a GPA provider.”;

(b) by inserting the following words after the words “pursuant to paragraph (1)” in paragraphs (3), (5), (6) and (7),—

“or paragraph (1A)”; and

(c) by adding the following paragraph—

“(9) In this regulation—

(a) a “GPA provider” shall mean a person from a GPA State who sought, or who seeks, or would have wished, to be the person to whom the contract is awarded;

(b) a “GPA State” shall mean 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(15); and

(c) “relevant time” shall mean the date on which the contracting authority would have sent a contract notice in respect of the contract to the Official Journal if it had been required by these Regulations to do so.”.

(13) Schedule 1 to these Regulations (which substitutes a new Schedule 2 to the Public Works Regulations) shall have effect.

(14) Schedule 2 to these Regulations (which adds Schedule 3 to the Public Works Regulations) shall have effect.

(1)

Cm 2575. As at 1st January 2000, parties to the Government Procurement Agreement other than relevant States were Aruba, Canada, Hong Kong Special Administrative Region, Israel, Japan, Republic of Korea, Singapore, Switzerland and the United States of America.

(2)

1947 c. 41.

(3)

1996 c. 16.

(4)

1967 c. 77.

(5)

1985 c. 51.

(6)

1995 c. 25.

(7)

Created by section 1 of the Metropolitan Police (Receiver) Act 1861 c. 124.

(8)

S.I. 1995/201 which is amended by S.I. 1996/2911, S.I. 1999/1042, S.I. 1999/1820 and section 1 of the Employment Rights (Dispute Resolution) Act 1998 c. 8.

(9)

1973 c. 65; section 253(1), as substituted by section 180(1) of, and paragraph 92(66)(c) of Schedule 13 to, the Local Government etc (Scotland) Act 1994 c. 39, now provides that a local authority means a council constituted under section 2 of the Local Government etc (Scotland) Act 1994 c. 39.

(10)

1972 c. 9 (N.I.).

(11)

OJ L 199, 9.8.1993, p. 54.

(12)

The rates are determined every two years in principle and published in the Official Journal. The calculation is based upon the average of the daily exchange rates between special drawing rights and the euro and between the euro and sterling over a period of 24 months preceding the determination.

(13)

The address for the Office for Official Publications of the European Communities is 2 Rue Mercier, L-2985, Luxembourg (tel: 29 291; telex: 1324 PUBOF LU; fax: [phone] 623/ 29 29 44 619).

(14)

S.I. 1995/201; relevant amending instruments are S.I. 1999/1042, S.I. 1999/1820 and section 1 of the Employment Rights (Dispute Resolution) Act 1998 c. 8.

(15)

Information on the detailed application of the GPA under bilateral agreements between the EU and other signatories is maintined in the annexes and general notes in Appendix I to the GPA. Access to this information is available through the WTO website at www.wto.org.