The Defence and Security Public Contracts Regulations 2011

Information as to technical or professional ability U.K.

25.—(1) F1 ... 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 17(7), 18(9) or 19(10), and

(b) in selecting the economic operators to be invited to tender for or to negotiate the contract in accordance with regulation 17(8), 18(10) or 19(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 supply contract requiring the siting or installation of goods, a services contract or a works contract, 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 five 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 five years, or during a shorter period if necessary, 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 service 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) a statement of the economic operator's—

(i) technical facilities;

(ii) measures for ensuring quality;

(iii) study and research facilities; and

(iv) internal rules regarding intellectual property;

(f) a check carried out by the contracting authority or on its behalf by a competent official body [F2 in the United Kingdom or Gibraltar]—

(i) on the technical capacity of the economic operator; and

(ii) if relevant, on the economic operator's study and research facilities and quality control measures;

(g) in the case of works contracts, services contracts or supply contracts also covering siting and installation operations or services, the economic operator's educational and professional qualifications where the economic operator is an individual and—

(i) if any, those of the economic operator's managerial staff; and

(ii) those of 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 economic operator 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 three years;

(j) a description of the tools, material, technical equipment, staff numbers, know-how and sources of supply (with an indication of their geographical location when it is outside the [F3 United Kingdom and Gibraltar]) available to the economic operator to perform the contract, cope with any additional needs required by the contracting authority as a result of a crisis or carry out the maintenance, modernisation or adaptation of the goods covered by the contract;

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

(l) certification by official quality control institutes or agencies of recognised competence, attesting that the goods to be purchased or hired under the contract conform to standards and technical specifications (within the meaning of regulation 12(1)) identified by the contracting authority;

(m) in the case of contracts involving, entailing or containing classified information, evidence of the ability to process, store and transmit such information at the level of protection required by the contracting authority;

(n) a certificate—

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

(ii) from an independent accredited body established in [F4 the United Kingdom or Gibraltar] conforming to the European standards concerning accreditation and certification; or

(o) any other evidence of conformity to quality management systems standards 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—

F5 (aa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(bb) the relevant European or international standards; and

[F6 (ii) from either—

(aa) an independent body established in the United Kingdom conforming to [F7 assimilated law] or the relevant European or international standards concerning certification; or

(bb) an independent body established in Gibraltar conforming to the law of Gibraltar 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) The evidence referred to in paragraph (2)(m) may include evidence of holding an appropriate security clearance recognised by the United Kingdom and the contracting authority may grant economic operators which do not yet hold the necessary security clearance additional time to obtain such clearance and, where this is the case, shall indicate this possibility and the time limit in the contract notice.

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

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

Textual Amendments

F1 Words in reg. 25(1) omitted (31.12.2020) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(14)(a) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F2 Words in reg. 25(2)(f) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(14)(b)(i) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in reg. 25(2)(j) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(14)(b)(ii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in reg. 25(2)(n)(ii) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(14)(b)(iii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F5 Reg. 25(4)(a)(i)(aa) omitted (31.12.2020) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(14)(c)(i) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F6 Reg. 25(4)(a)(ii) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(14)(c)(ii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F7 Words in reg. 25(4)(a)(ii)(aa) substituted (1.3.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 1(4)