The Public Contracts (Scotland) Regulations 2015

CHAPTER 5 S FACILITATION OF REMEDIES

Scope of Chapter 5 S

84.  This Chapter applies to procurements falling within the scope of Part 2.

Notices of decisions to award a contract or conclude a framework agreement S

85.—(1) Subject to paragraphs (4) and (5), a contracting authority must, by notice in writing as soon as possible after the decision has been made, inform all tenderers and candidates concerned of its decision to award the contract, conclude the framework agreement or establish a dynamic purchasing system.

(2) The notice referred to in paragraph (1) must include—

(a) the criteria for the award of the contract, conclusion of the framework agreement or establishment of the dynamic purchasing system;

(b) where practicable, the score obtained by the economic operator which is to receive the notice;

(c) the name of and ,where practicable, the score obtained by the economic operator—

(i) to be awarded the contract;

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

(iii) to be admitted to the dynamic purchasing system;

(d) in the case of an unsuccessful tenderer—

(i) a summary of the reasons why the tenderer was unsuccessful; and

(ii) the characteristics and relative advantages of the successful tender;

(e) in the case of an unsuccessful candidate concerned, a summary of the reasons why the candidate was unsuccessful; and

(f) a precise statement of the effect of regulation 86 (standstill period) on the economic operator which is to receive the notice.

(3) The reasons referred to in paragraph (2)(d)(i) and (2)(e) must include any reason for the contracting authority's decision that the economic operator did not meet the technical specifications—

(a) in an equivalent manner as mentioned in [F1 regulation 43(14) (technical specifications)]; or

(b) because compliance with a specification mentioned in [F2 regulation 43(13) (technical specifications)] does not address the performance or functional requirements laid down by the contracting authority.

(4) Paragraph (1) does not apply where—

(a) the only tenderer is the economic operator to be awarded the contract or to become a party to the framework agreement, and there are no candidates concerned;

(b) the contract is a contract awarded under a framework agreement or a dynamic purchasing system; or

(c) the contract or framework agreement is exempt from the requirement for prior publication of a contract notice.

(5) A contracting authority may withhold any information to be provided in accordance with the preceding requirements of this regulation where the release of such information—

(a) would impede law enforcement or would otherwise be contrary to the public interest;

(b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or

(c) might prejudice fair competition between economic operators.

(6) Subject to paragraph (5), a contracting authority must within 15 days of the date on which it receives a request in writing from any economic operator—

(a) if it was unsuccessful, inform that economic operator of the reasons why it was unsuccessful, including any reason referred to in paragraph (3);

(b) in the case of an unsuccessful tenderer, other than a tenderer which has been informed by notice under paragraph (1), inform that tenderer of the characteristics and relative advantages of the successful tender and the name of—

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

(ii) the parties to the framework agreement; or

(iii) the economic operators admitted to the dynamic purchasing system; and

(c) if it was successful, a description of any improvements the contracting authority considers the tenderer could have made to its tender.

(7) Subject to paragraph (5), a contracting authority must by notice in writing, as soon as possible after the decision has been made, inform all candidates and tenderers of its decision to abandon or recommence a contract award procedure in respect of which a contract notice has been published in relation to—

(i) the award of a contract;

(ii) the conclusion of a framework agreement; or

(iii) the establishment of a dynamic purchasing system.

(8) Where a contracting authority provides information in accordance with paragraph (7) it must include the reasons for its decision and, if so requested by an economic operator, must provide the information and reasons in writing.

(9) In this regulation—

“candidate” means a candidate, as defined in regulation 2(1), which—

(a)

is not a tenderer; and

(b)

has not been informed of the rejection of its application and the reasons for it;

“tenderer” means a tenderer, as defined in regulation 2(1), which has not been definitively excluded.

(10) For the purposes of paragraph (9), an exclusion is definitive if, and only if, the tenderer has been notified of the exclusion and either—

(a) the exclusion has been held to be lawful in proceedings under Chapter 6 (applications to the court); or

(b) the time limit for starting such proceedings has expired even on the assumption that the Court would have granted the maximum extension permitted by regulation 88(4) (enforcement of duties through the courts).

Textual Amendments

F1 Words in reg. 85(3)(a) substituted (18.4.2016) by The Public Contracts (Scotland) Amendment Regulations 2016 (S.S.I. 2016/47), regs. 1, 2(7)(a)

F2 Words in reg. 85(3)(b) substituted (18.4.2016) by The Public Contracts (Scotland) Amendment Regulations 2016 (S.S.I. 2016/47), regs. 1, 2(7)(b)

Standstill period S

86.—(1) A contracting authority must allow a period of at least the relevant standstill period to elapse between the date of despatch of the notice referred to in regulation 85(1) (notices of decisions to award a contract or conclude a framework agreement) and the date on which that contracting authority enters into the contract or concludes the framework agreement.

(2) Paragraph (1) does not apply where—

(a) the contract or framework agreement is exempt from the requirement for prior publication of a contract notice;

(b) there are no tenderers concerned or candidates concerned;

(c) a notice is not required to be given under regulation 85(1) (notices of decisions to award a contract or conclude a framework agreement).

(3) Where notice is sent to all economic operators by facsimile or electronic means, the standstill period is a period of 10 days ending at midnight at the end of the 10^th day after that on which the last notice is sent.

(4) Where the notice is sent to any economic operators only by other means, the standstill period is a period of 15 days ending at midnight at the end of the 15^th day after that on which the last notice is sent.