The Public Contracts Regulations 2015

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations revoke and replace the Public Contracts Regulations 2006 (“the 2006 Regulations”).

Part 2 implements, for England, Wales and Northern Ireland, Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ No L 94, 28.3.2014, p65). The Part imposes obligations on public bodies called contracting authorities in relation to how they award public contracts for the execution of works, the supply of products or the provision of services. In particular

• Chapter 1 sets out the scope of the Part (including by reference to thresholds based on the estimated value of the procurement) and lays down some general rules and principles that apply to procurements within the scope of the Part;

• Chapter 2 sets out detailed rules to be followed in relation to procurement procedures (except where Chapter 3 applies);

• Chapter 3 establishes particular procurement regimes for the procurement of social and other specific services and the use of design contests: these regimes impose less detailed requirements and allow greater flexibilities than under Chapter 2;

• Chapter 4 imposes certain requirements on contracting authorities in relation to records and reports, including requirements about retaining copies of contracts above a certain value, drawing up individual reports about procurements, sending information about procurements to the Cabinet Office and European Commission on request, and documenting the progress of procurement procedures.

Part 3 contains provisions about remedies (and their facilitation) in relation to procurements within the scope of Part 2. These provisions consolidate, with amendments, Part 9 (and some other relevant provisions) of the 2006 Regulations. In so doing, they implement, for England, Wales and Northern Ireland, Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30.12.1989, p33) as amended(1).

Part 4 imposes miscellaneous additional obligations (which do not implement EU obligations(2)) on contracting authorities. This Part extends to England and Wales and Northern Ireland but does not apply to a contracting authority if its functions are wholly or mainly Northern Ireland devolved functions or Welsh devolved functions. The Part includes requirements for contracting authorities, subject to exceptions, to

• cause certain information to be published on a web-based portal provided by or on behalf of the Cabinet Office (“Contracts Finder”) when they send contract notices or contract award notices to the EU Publications Office under Part 2;

• publish on Contracts Finder information about advertised contract opportunities, and contracts that are awarded, in certain public procurements which have an estimated value less than procurements to which Part 2 applies, and to comply, in such procurements, with certain requirements in assessing the suitability of candidates;

• have regard to guidance issued by the Minister for the Cabinet Office in complying with certain aspects of Part 4 and in relation to certain aspects of the qualitative selection of economic operators in procurements to which Part 2 applies, and to report to the Cabinet Office certain deviations from such guidance;

• include in public contracts which they award certain provisions relating to the payment of undisputed invoices within 30 days by the awarding contracting authority and its relevant contractors and subcontractors. (Where this requirement is not complied with, regulation 112(6) implies terms into the contract between the contracting authority and its contractor).

Part 5 contains provisions which

• revoke the 2006 Regulations and make consequential and miscellaneous amendments to primary and secondary legislation (so far as they extend to England and Wales and Northern Ireland and, in relation to some amendments, Scotland) including, in paragraph 19 of Schedule 7, some amendments to the Defence and Security Public Contracts Regulations 2011 (S.I. 2011/1848) to correct some minor drafting errors;

• make transitional provision and savings, including

  • provision for pending procurements, and certain concession contracts and the procedures for their award, not to be affected by these Regulations, and

  • a temporary exemption for certain NHS procurements.

A transposition note in relation to Part 2 is available at www.gov.uk/transposing-eu-procurement-directives. It is also annexed to the Explanatory Memorandum which is available alongside the instrument at www.legislation.gov.uk. An impact assessment has not been produced for this instrument as no significant impact on the private or voluntary sectors is foreseen.

(1)

By Council Directive 92/50/EEC relating to the coordination of procedures for the award of public services contracts (OJ L 209, 24.7.1992, p1) and by Directive 2007/66/EC of the European Parliament and Council amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ L 335, 20.12.2007, p31).

(2)

Although the provisions arise out of and are related to the Directive that is implemented by Part 2 or, in the case of the late payment provisions, Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions, as implemented in the UK by the Late Payments of Commercial Debts (Interest) Act 1998 (c.20) and by SI 2002/1674 and 2013/395.