The Public Procurement (Miscellaneous Amendments) Regulations 2011

PART 3 U.K. AMENDMENT OF THE UTILITIES CONTRACTS REGULATIONS 2006

Time limits and service of proceedings U.K.

19.—(1) In regulation 45(2), omit “, except in regulation 45D(2),”M1 .

(2) In regulation 45D M2 —

(a) for paragraph (2) substitute—

“(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.”; and

(b) for paragraphs (4) and (5) substitute—

“(4) Subject to paragraph (5), the Court may extend the time limit imposed by paragraph (2) (but not any of the limits imposed by regulation 45E) where the Court considers that there is a good reason for doing so.

(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

(6) For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.”.

(3) In regulation 45E, for paragraph (8) substitute—

“(8) For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.”.

(4) In regulation 45F, for paragraph (1) substitute—

“(1) Where proceedings are started, the economic operator must serve the claim form on the utility within 7 days after the date of issue.”.

Marginal Citations

M1 These words were substituted by S.I. 2009/3100.

M2 Regulations 45D, 45E and 45F were inserted by S.I. 2009/3100.

Standstill notices: definition of ‘tenderer’ U.K.

20.  In regulation 33—

(a) in paragraph (14)(b) M3 , for “offer” substitute “ offer and has not been definitively excluded ”; and

(b) after paragraph (14) insert—

“(15) For the purposes of paragraph (14)(b)—

(a) a tenderer has been excluded if its offer has been excluded from consideration; and

(b) an exclusion is definitive if, and only if, the tenderer has been notified of the exclusion and either—

(i) the exclusion has been held to be lawful in proceedings under Part 9; or

(ii) 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 45D(4) and (5).”.

Marginal Citations

M3 Paragraph (14) was inserted by S.I 2009/3100.

Criterion for suspension of contract-making U.K.

21.  In regulation 45G M4 —

(a) for paragraph (1) substitute—

“(1) Where—

(a) a claim form is issued in respect of a utility's decision to award the contract;

(b) the utility has become aware that the claim form has been issued and that it relates to that decision; and

(c) the contract has not been entered into,

the utility is required to refrain from entering into the contract.”; and

(b) omit paragraph (3).

Marginal Citations

M4 Regulation 45G was inserted by S.I. 2009/3100.

Criteria for the rejection of economic operators U.K.

22.  In Regulation 26—

(a) for paragraph (1) substitute—

“(1) Subject to paragraph (2), where a utility is a contracting authority, it shall treat as ineligible and shall not select an economic operator in accordance with these Regulations if the utility 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 or 1A of the Criminal Law Act 1977 or article 9 or 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 where that conspiracy relates to participation in a criminal organisation as defined in Article 2 of Council Framework Decision 2008/841/JHA;

(b) corruption within the meaning of section 1(2) of the Public Bodies Corrupt Practices Act 1889 or section 1 of the Prevention of Corruption Act 1906, where the offence relates to active corruption;

(c) the offence of bribery, where the offence relates to active corruption;

(ca) bribery within the meaning of section 1 or 6 of the Bribery Act 2010;

(d) fraud, where the offence relates to fraud affecting the European Communities' financial interests as defined by Article 1 of the Convention on the protection of the financial interests of the European Communities, 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, the Theft Act (Northern Ireland) 1969, the Theft Act 1978 or the Theft (Northern Ireland) Order 1978;

(iv) fraudulent trading within the meaning of section 458 of the Companies Act 1985, article 451 of the Companies (Northern Ireland) Order 1986 or section 993 of the Companies Act 2006;

(v) fraudulent evasion within the meaning of section 170 of the Customs and Excise Management Act 1979 or section 72 of the Value Added Tax Act 1994;

(vi) an offence in connection with taxation in the European Union within the meaning of section 71 of the Criminal Justice Act 1993;

(vii) destroying, defacing or concealing of documents or procuring the execution of a valuable security within the meaning of section 20 of the Theft Act 1968 or section 19 of the Theft Act (Northern Ireland) 1969;

(viii) fraud within the meaning of section 2, 3 or 4 of the Fraud Act 2006; or

(ix) making, adapting, supplying or offering to supply articles for use in frauds within the meaning of section 7 of the Fraud Act 2006;

(e) money laundering within the meaning of section 340(11) of the Proceeds of Crime Act 2002;

(ea) an offence in connection with the proceeds of criminal conduct within the meaning of section 93A, 93B or 93C of the Criminal Justice Act 1988 or article 45, 46 or 47 of the Proceeds of Crime (Northern Ireland) Order 1996;

(eb) an offence in connection with the proceeds of drug trafficking within the meaning of section 49, 50 or 51 of the Drug Trafficking Act 1994; 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.

(1A) In paragraph (1), “active corruption” means corruption as defined in Article 3 of the Council Act of 26 May 1997 or Article 3(1) of Council Joint Action 98/742/JHA.”M5 ;

(b) in paragraph (5)(a)—

(i) after “individual” insert “ is a person in respect of whom a debt relief order has been made or ”; and

(ii) after “bankruptcy restrictions order” insert “ or a debt relief restrictions order ”; and

(c) for paragraph (5)(h) substitute—

“(h) is guilty of serious misrepresentation in providing any information referred to within this regulation or regulation 24 or 27, or has not provided such information in response to a request by the contracting authority.”.

Marginal Citations

M5 For information about the legislation and other texts mentioned in the paragraphs substituted by this paragraph, see the footnotes to the corresponding substitution made by regulation 15(a).

Transfer of functions etc U.K.

23.—(1) In regulation 2(1), omit the definition of “Office of Government Commerce”.

(2) In each of the following provisions, for “Office of Government Commerce” substitute “ Cabinet Office ”:—

(a) regulation 9(1)(a);

(b) regulation 9(1)(c)(ii);

(c) regulation 34(5)(e)(i);

(d) regulation 34(5)(e)(iii)(aa);

(e) regulation 39(3);

(f) regulation 39(6).

(3) In regulation 45N M6 —

(a) for paragraph (7) substitute—

“(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 Minister for the Cabinet Office;

(b) the Court must send a copy of the order to the Minister;

(c) the utility must pay the penalty to the Minister; and

(d) the Minister must, on receipt of the penalty, pay it into the Consolidated Fund.”; and

(b) in paragraph (9)(a)—

(i) for “Treasury” substitute “ Minister for the Cabinet Office ”; and

(ii) for “them” substitute “ the Minister ”.

Marginal Citations

M6 Regulation 45N was inserted by S.I 2009/3100.

Treaty references U.K.

24.—(1) In regulation 2(1)—

(a) omit the definition of “EC Treaty”; and

(b) after the definition of “supply contract”, insert—

“TFEU” means the Treaty on the Functioning of the European Union”M7 .

(2) in each of the following provisions, for “EC Treaty” substitute “ TFEU ”:—

(a) regulation 6(e)(i);

(b) regulation 6(i);

(c) regulation 30(8)(b).

Marginal Citations

M7 OJ No C 115, 9.5.2008, p.47.

Miscellaneous minor amendments U.K.

25.—(1) In regulation 45D(3)(b) M8 , for paragraph (i) substitute the following—

“(i) 15 days beginning with the day after the day on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision;”.

(2) In regulation 45E(2)(b), for “in any other case” substitute “ in any event ”.

(3) In regulation 45K(6)(c) for “exceeds” substitute “ is equal to or exceeds ”.

Marginal Citations

M8 Regulations 45D, 45E and 45K were inserted by S.I. 2009/3100.