The Public Contracts (Scotland) Regulations 2012

PART 3 PROCEDURES LEADING TO THE AWARD OF A PUBLIC CONTRACT

Prior information notices

11.—(1) Subject to paragraphs (4), (5) and (6), a contracting authority must send a notice in the form of the prior information notice in Annex I to Commission Regulation (EC) No 1564/2005 and containing the information therein specified to the Commission or publish it on that contracting authority’s buyer profile as soon as possible after—

(a) the beginning of the financial year in the case of public supply contracts or public services contracts or framework agreements for the purchase or hire of goods or for the provision of services; or

(b) the decision authorising the programme of public works contracts or framework agreements for the carrying out of work or works, in the case of public works contracts or framework agreements for the carrying out of work or works.

(2) The notice referred to in paragraph (1) must contain information in respect of—

(a) the public supply contracts, the public services contracts or the framework agreements referred to in paragraph (1)(a) which the contracting authority expects to award or conclude during the period of 12 months beginning with the date of the notice; and

(b) the public works contracts or the framework agreements referred to in paragraph (1)(b) which the contracting authority expects to award or conclude, and that notice must be sub-divided to give that information separately for each product area of goods by reference to the CPV nomenclature of each category of works or services as specified in Schedules 2 and 3.

(3) Where a contracting authority publishes a notice on its buyer profile in accordance with paragraph (1), it must also send a notice in the form of a notice on a buyer profile in Annex VIII to Commission Regulation (EC) No 1564/2005(1) informing the Commission by electronic means in accordance with the format and procedure for sending notices specified in paragraph (3) of Annex VIII to the Public Sector Directive of that publication.

(4) The obligation to publish a prior information notice in accordance with paragraph (1) applies only to proposed public contracts or framework agreements which are not excluded from the application of these Regulations by regulation 6 or 8 and where, at the date of dispatch of the notice—

(a) the total consideration which the contracting authority expects to be payable under—

(i) public supply contracts or framework agreements for the purchase or hire of goods falling within the same product area; or

(ii) Part A services contracts or framework agreements for the provision of services falling within the same category specified in Part A of Schedule 3,

is equal to or exceeds 750 000 euro; or

(b) the total consideration which the contracting authority expects to be payable under public works contracts or framework agreements for the carrying out of work or works is equal to or exceeds the amount set out in Article 7(c).

(5) The obligation to publish a prior information notice applies only where the contracting authority takes the option of shortening the time limits for the receipt of tenders in accordance with regulation 15(7) or 16(18).

(6) This regulation does not apply to a proposed public contract where the procedure for the award of the contract is the negotiated procedure without the prior publication of a contract notice in accordance with regulation 14.

Selection of contract award procedures

12.—(1) Subject to paragraph (3), for the purpose of seeking offers in relation to a proposed public contract, a contracting authority must use—

(a) the open procedure in accordance with regulation 15; or

(b) the restricted procedure in accordance with regulation 16,

in all circumstances, except where paragraph 2 applies.

(2) Subject to paragraph (3), for the purpose of seeking offers in relation to a proposed public contract, a contracting authority may use—

(a) the negotiated procedure in accordance with regulation 17 in the circumstances referred to in regulations 13 and 14; or

(b) the competitive dialogue procedure in accordance with regulation 18.

(3) Paragraphs (1) and (2) do not apply in the case of a subsidised housing scheme works contract which is subject to regulation 35.

Use of the negotiated procedure with prior publication of a contract notice

13.  A contracting authority may use the negotiated procedure with the prior publication of a contract notice in accordance with regulation 17(3) in the following circumstances—

(a) subject to regulation 14(1)(a)(i), in the event that the procedure leading to the award of a contract by the contracting authority using the open procedure, the restricted procedure or the competitive dialogue procedure was discontinued because of—

(i) irregular tenders; or

(ii) unacceptable tenders following an evaluation made in accordance with regulation 15(11), 16(7) or 18(10),

but only if the original terms of the proposed contract offered in the discontinued procedure have not been substantially altered in the negotiated procedure;

(b) exceptionally, when the nature of the work or works to be carried out, the goods to be purchased or hired or the services to be provided under the contract or the risks attaching to them are such as not to permit prior overall pricing;

(c) in the case of a public services contract, when the nature of the services to be provided, in particular in the case of services specified in category 6 of Part A of Schedule 3 and intellectual services, such as services involving the design of work or works, is such that specifications cannot be established with sufficient precision to permit the award of the contract using the open procedure or restricted procedure; or

(d) in the case of a public works contract, when the work or works are to be carried out under the contract solely for the purpose of research, testing or development but not with the aim of ensuring profitability or to recover research and development costs.

Use of the negotiated procedure without prior publication of a contract notice

14.—(1) A contracting authority may use the negotiated procedure without the prior publication of a contract notice in accordance with regulation 17(3) in the following circumstances—

(a) in the case of a public contract—

(i) when a contracting authority is using the negotiated procedure in accordance with regulation 13(a) and invites to negotiate the contract all of, and only, those economic operators which submitted a tender following an invitation made during the course of the discontinued open procedure, restricted procedure or competitive dialogue procedure (not being a tender or economic operator which was excluded in accordance with regulation 15(11), 16(7) or 18(10));

(ii) subject to paragraph (2), in the absence of tenders, suitable tenders or applications in response to an invitation to tender by the contracting authority using the open procedure or the restricted procedure but only if the original terms of the proposed contract offered in the discontinued procedure have not been substantially altered in the negotiated procedure;

(iii) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the public contract may be awarded only to a particular economic operator;

(iv) when (but only if it is strictly necessary) for reasons of extreme urgency brought about by events unforeseeable by, and not attributable to, the contracting authority, the time limits specified in—

(aa) regulation 15 for the open procedure;

(bb) regulation 16 for the restricted procedure; or

(cc) regulation 17 for the negotiated procedure,

cannot be met;

(b) in the case of a public supply contract–

(i) when the goods to be purchased or hired under the contract are to be manufactured solely for the purpose of research, experiment, study or development but not when the goods are to be purchased or hired with the aim of ensuring profitability or to recover research and development costs;

(ii) subject to paragraph (3), when the goods to be purchased or hired under the contract are required by the contracting authority as a partial replacement for, or in addition to, existing goods or an installation and when to obtain the goods from a supplier other than the supplier which supplied the existing goods or the installation would oblige the contracting authority to acquire goods having different technical characteristics which would result in—

(aa) incompatibility between the existing goods or the installation and the goods to be purchased or hired under the contract; or

(bb) disproportionate technical difficulties in the operation and maintenance of the existing goods or the installation;

(iii) for the purchase or hire of goods quoted and purchased on a commodity market;

(iv) to take advantage of particularly advantageous terms for the purchase of goods in a closing down sale or in a sale brought about because a supplier is subject to a procedure referred to in regulation 23(4)(a), (b) or (c);

(c) in the case of a public services contract, when the rules of a design contest require the contract to be awarded to the successful contestant or to one of the successful contestants, provided that all successful contestants are invited to negotiate the contract;

(d) in the case of a public works contract or a public services contract—

(i) subject to paragraph (4), when a contracting authority wants an economic operator which has entered into a public works contract or a public services contract with the contracting authority to carry out additional work or works or provide additional services which were not included in the project initially considered or in the original public works contract or public services contract but which through unforeseen circumstances have become necessary, and such work, works or services—

(aa) cannot for technical or economic reasons be carried out or provided separately from those under the original contract without major inconvenience to the contracting authority; or

(bb) can be carried out or provided separately from those under the original contract but are strictly necessary to the later stages of the performance of that contract; and

(ii) subject to paragraph (5), when a contracting authority wants an economic operator which has entered into a public works contract or a public services contract with that contracting authority to carry out new work or works or provide new services which are a repetition of the work or works carried out or the services provided under the original contract and which are in accordance with the project for the purpose of which the first contract was entered into.

(2) A contracting authority using the negotiated procedure in accordance with paragraph (1)(a)(ii) must, if the Commission requests it, submit a report recording the fact that it has used that procedure to the Scottish Ministers for onward transmission to the Commission.

(3) A contracting authority must not use the negotiated procedure in accordance with paragraph (1)(b)(ii) if the term of the proposed contract, or the term of that contract and of any other contract entered into for the same purpose, is more than three years, unless there are reasons why it is unavoidable that this period should be exceeded.

(4) A contracting authority must not use the negotiated procedure in accordance with paragraph (1)(d)(i), where the aggregate value of the consideration to be given under contracts for the additional work, works or services exceeds 50 per cent of the value of the consideration payable under the original contract.

(5) A contracting authority must not use the negotiated procedure in accordance with paragraph (1)(d)(ii) unless—

(a) the contract notice relating to the original contract stated that a public works contract or a public services contract for new work, works or services which would be a repetition of the work or works carried out or the services provided under the original contract may be awarded using the negotiated procedure in accordance with paragraph (1)(d)(ii);

(b) in determining the estimated value of the original contract for the purposes of regulation 8, the contracting authority took into account the value of the consideration which it expected to be payable for the new work, works or services; and

(c) the procedure for the award of the new contract is commenced within 3 years of the original contract being entered into.

The open procedure

15.—(1) A contracting authority using the open procedure must comply with this regulation.

(2) The contracting authority must publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005(2), inviting tenders and containing the information therein specified.

(3) Subject to paragraphs (5), (6) and (7), the date which the contracting authority fixes as the last date for the receipt by it of tenders made in response to the contract notice must be specified in the contract notice and must be not less than 52 days from the date of dispatch of the notice.

(4) Subject to any minimum time limit specified by this regulation, the contracting authority must take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt by it of tenders.

(5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limits referred to in paragraphs (3) and (7) may be reduced by 7 days.

(6) The contracting authority may reduce the time limits for the receipt by it of tenders by 5 days provided that—

(a) the contracting authority offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.

(7) Where—

(a) the contracting authority has published a prior information notice in accordance with regulation 11;

(b) the prior information notice contained as much of the information referred to in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005 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 not more than 12 months before the date on which the contract notice provided for in paragraph (2) is dispatched;

the contracting authority may substitute for the period of not less than 52 days specified in paragraph (3), a shorter period of generally not less than 36 days and in any event not less than 22 days.

(8) Where the contracting authority does not offer unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (6), the contracting authority must send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator, provided that the documents are requested in good time before the date specified in the contract notice as the final date for the receipt by it of tenders.

(9) The contracting authority must supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator, provided that the request is received in sufficient time to enable the contracting authority to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

(10) The contracting authority must extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—

(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraphs (8) and (9) and, for whatever reason, the contract documents or further information are not supplied in accordance with those paragraphs; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

(11) The contracting authority must make its evaluation in accordance with regulations 23 to 26 and may exclude a tender from the evaluation of offers made in accordance with regulation 30 only if the economic operator—

(a) may be treated as ineligible to tender on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—

(i) economic and financial standing; or

(ii) technical or professional ability.

(12) The contracting authority may require an economic operator to satisfy minimum levels of—

(a) economic and financial standing; and/or

(b) technical or professional ability,

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

(13) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (6).

The restricted procedure

16.—(1) A contracting authority using the restricted procedure must comply with this regulation.

(2) The contracting authority must publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005(3), inviting requests to be selected to tender and containing the information therein specified.

(3) Subject to paragraph (5), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to tender must be specified in the contract notice and must be not less than 37 days from the date of the dispatch of the notice.

(4) Subject to any minimum time limit specified by this regulation, the contracting authority must take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt of requests to be selected to tender and for receipt by it of tenders.

(5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (3) may be reduced by 7 days.

(6) Where compliance with the minimum time limit of 37 days referred to in paragraph (3) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit—

(a) a time limit of not less than 15 days from the date of dispatch of the contract notice; or

(b) where the contracting authority has transmitted the contract notice by electronic means in accordance with paragraph (5), a time limit of not less than 10 days from the date of dispatch of the contract notice.

(7) The contracting authority must make its evaluation in accordance with regulations 23 to 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to tender only if the economic operator—

(a) may be treated as ineligible to tender on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—

(i) economic and financial standing; or

(ii) technical or professional ability.

(8) The contracting authority must make the selection of the economic operators to be invited to tender in accordance with regulations 23 to 26 and must award the contract in accordance with regulation 30.

(9) Where there are a sufficient number of economic operators suitable to be selected to be invited to tender, the contracting authority may limit the number of economic operators which it intends to invite to tender provided that the contract notice specifies—

(a) the objective and non-discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which must be not less than 5, which the contracting authority intends to invite to tender and, where appropriate, the maximum number.

(10) The contracting authority must ensure that the number of economic operators invited to tender is—

(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number specified by the contracting authority in accordance with paragraph (9)(b).

(11) Subject to paragraph (10)(a), where—

(a) the contracting authority carries out a selection in accordance with regulations 23 to 26; and

(b) the number of economic operators selected to be invited to tender is less than the minimum number specified by the contracting authority in the contract notice,

the contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

(12) The contracting authority may require an economic operator to satisfy minimum levels of—

(a) economic and financial standing; and/or

(b) technical or professional ability,

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

(13) The contracting authority must send invitations in writing simultaneously to each economic operator selected to tender for the contract and the invitation must—

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(14) Where the contract documents are held by an entity other than the contracting authority, the contracting authority must ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

(15) The contracting authority must include the following information in the invitation—

(a) the final date for the receipt by it of tenders, the address to which they must be sent and the language or languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (2);

(c) an indication of the information to be included with the tender which the contracting authority may require to be provided in accordance with regulations 24 to 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (2).

(16) Subject to paragraphs (18) and (19), the date which the contracting authority fixes as the last date for the receipt by it of tenders and which must be specified in the invitation to tender in accordance with paragraph (15)(a), must be not less than 40 days from the date of the dispatch of the invitation.

(17) Where compliance with the minimum time limit of 40 days referred to in paragraph (16) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit, a time limit of not less than 10 days from the date of dispatch of the invitation.

(18) Where—

(a) the contracting authority has published a prior information notice in accordance with regulation 11;

(b) the prior information notice contained as much of the information referred to in the form of a contract notice in Annex II to Commission Regulation (EC) No 1564/2005 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 paragraph (2) is dispatched,

the contracting authority may substitute for the period of not less than 40 days in paragraph (16), a period of generally not less than 36 days and in any event not less than 22 days.

(19) The contracting authority may reduce the time limits for the receipt by it of tenders referred to in paragraphs (16) and (18) by 5 days provided that—

(a) the contracting authority offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.

(20) The contracting authority or entity referred to in paragraph (13)(c) must supply such further information relating to the contract documents as may be reasonably requested by an economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.

(21) The contracting authority must extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—

(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraph (20) and, for whatever reason, the contract documents or further information are not supplied in accordance with that paragraph; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

(22) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (19).

(23) The contracting authority must by notice in writing as soon as reasonably practicably after sending the invitations referred to in paragraph (13), inform any candidates that have not been selected to be invited to tender that they have been unsuccessful.

The negotiated procedure

17.—(1) Subject to paragraph (2), a contracting authority using the negotiated procedure must comply with this regulation.

(2) A contracting authority using the negotiated procedure in accordance with regulation 14 need only comply with paragraphs (9) and (10) of this regulation.

(3) The contracting authority must publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005(4), inviting requests to be selected to negotiate and containing the information therein specified.

(4) The contracting authority must indicate whether the negotiated procedure will take place in successive stages in accordance with paragraph (23)—

(a) in the contract notice; or

(b) in that notice and the contract documents.

(5) Subject to paragraphs (7) and (8), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to negotiate must be specified in the contract notice and must be not less than 37 days from the date of dispatch of the notice.

(6) Subject to any minimum time limit specified by this regulation, the contracting authority must take account of all the circumstances, in particular, the complexity of the contract when fixing time limits for the receipt of requests to be selected to negotiate the contract.

(7) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (5) may be reduced by 7 days.

(8) Where compliance with the minimum time limit of 37 days referred to in paragraph (5) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit—

(a) a time limit of not less than 15 days from the date of dispatch of the contract notice; or

(b) where the contracting authority has transmitted the contract notice by electronic means in accordance with paragraph (7), a time limit of not less than 10 days from the date of dispatch of the contract notice.

(9) The contracting authority must make its evaluation in accordance with regulations 23 to 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to negotiate the contract only if the economic operator—

(a) may be treated as ineligible on a ground specified in regulation 23;

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—

(i) economic and financial standing; or

(ii) technical or professional ability.

(10) The contracting authority must make the selection of the economic operators to be invited to negotiate in accordance with regulations 23 to 26 and must award the contract in accordance with regulation 30.

(11) Where there is a sufficient number of economic operators suitable to be selected to negotiate, the contracting authority may limit the number of economic operators which it intends to invite to negotiate the contract provided that the contract notice specifies–

(a) the objective and non-discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which must be not less than 3, which the contracting authority intends to invite to negotiate and, where appropriate, the maximum number.

(12) The contracting authority must ensure that the number of economic operators invited to negotiate is—

(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number set by the contracting authority in accordance with paragraph (11)(b).

(13) Subject to paragraph (12)(a), where—

(a) the contracting authority carries out a selection in accordance with regulations 23 to 26; and

(b) the number of economic operators selected to be invited to negotiate is less than the minimum number specified by the contracting authority in the contract notice,

the contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

(14) The contracting authority may require an economic operator to satisfy minimum levels of—

(a) economic and financial standing; and/or

(b) technical or professional ability,

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

(15) The contracting authority must send invitations in writing simultaneously to each economic operator selected to negotiate and the invitation must—

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(16) Where the contract documents are held by an entity other than the contracting authority, the contracting authority must ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

(17) The contracting authority must include in the invitation—

(a) the final date for the receipt by it of replies, the address to which they must be sent and the one or more languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (3);

(c) an indication of the information to be included with the reply which the contracting authority may require to be provided in accordance with regulations 24 to 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (3).

(18) The contracting authority or entity referred to in paragraph (15)(c) must supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it—

(a) not less than 6 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders; or

(b) in the case of urgency where paragraph (8) applies, not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.

(19) The contracting authority must extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—

(a) an economic operator requests the contract documents in sufficient time to allow a contracting authority to respond in accordance with paragraph (18) and, for whatever reason, the contract documents are not supplied in accordance with that paragraph; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

(20) The contracting authority must by notice in writing as soon as reasonably practicable after sending the invitations referred to in paragraph (15), inform any candidates that have not been selected to be invited to negotiate that they have been unsuccessful.

(21) Where the contracting authority needs to identify the best tender in order to award the public contract in accordance with regulation 30(1), that contracting authority must negotiate with economic operators which have submitted tenders with the aim of adapting the tenders to the requirements specified in the contract documents.

(22) During any negotiations which take place in accordance with this regulation, a contracting authority must ensure equal treatment among all economic operators and in particular, must not provide information in a discriminatory manner which may give some economic operators an advantage over other economic operators.

(23) The contracting authority may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria in the contract documents.

(24) Where the contracting authority provides for the negotiated procedure to take place in successive stages in accordance with paragraph (23), it must—

(a) ensure that the number of economic operators to be invited to negotiate the contract at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of operators to do so; and

(b) by notice in writing as soon as reasonably practicable after reducing the number of tenders to be negotiated, inform the affected economic operators that they have been excluded from the competition.

The competitive dialogue procedure

18.—(1) In this regulation—

“particularly complex contract” means a contract where a contracting authority is not objectively able to—

(a)

define the technical means in accordance with regulation 9(7), (8) and (9) capable of satisfying its needs or objectives; or

(b)

specify either the legal or financial make-up of a project or both; and

“participant” means an economic operator selected by a contracting authority using the procedure referred to in paragraph (2) to participate in the competitive dialogue procedure.

(2) Where a contracting authority wishes to award a particularly complex contract and considers that the use of the open or restricted procedure will not allow the award of that contract, the contracting authority may use the competitive dialogue procedure.

(3) A contracting authority using the competitive dialogue procedure must comply with the following paragraphs of this regulation.

(4) The contracting authority must publicise its intention to seek offers in relation to the public contract by sending to the Official Journal, as soon as possible after forming the intention a notice, in the form of a contract notice in Annex II to Commission Regulation (EC) No 1564/2005(5), inviting requests to participate and containing the information therein specified.

(5) The contracting authority must specify its needs and requirements in the contract notice and must define those needs and requirements—

(a) in the contract notice;

(b) in the descriptive document; or

(c) in both those documents.

(6) The contracting authority must indicate that it may provide for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (23)—

(a) in the contract notice; or

(b) in that notice and the descriptive document.

(7) Subject to paragraph (9), the date which the contracting authority must fix as the last date for the receipt by it of requests to be selected to participate must be specified in the contract notice and must be not less than 37 days from the date of the dispatch of the notice.

(8) Subject to any minimum time limit specified by this regulation, the contracting authority must take account of all the circumstances, in particular, the complexity of the contract when fixing time limits for the receipt by it of requests to be selected to participate in the dialogue.

(9) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (7) may be reduced by 7 days.

(10) The contracting authority must make its evaluation in accordance with regulations 23 to 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to participate in the dialogue only if the economic operator—

(a) may be treated as ineligible on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—

(i) economic and financial standing; or

(ii) technical or professional ability.

(11) The contracting authority must make the selection of the economic operators to be invited to participate in the dialogue in accordance with regulations 23 to 26.

(12) Where there is a sufficient number of economic operators suitable to be selected to participate in the dialogue, the contracting authority may limit the number of economic operators which it intends to invite to participate in the dialogue provided that the contract notice specifies—

(a) the objective and non-discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which must be not less than 3, which the contracting authority intends to invite to participate in the dialogue and, where appropriate, the maximum number.

(13) The contracting authority must ensure that the number of economic operators invited to participate in the dialogue is—

(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number set by the contracting authority in accordance with paragraph (12)(b).

(14) Subject to paragraph (13)(a), where—

(a) the contracting authority carries out a selection in accordance with regulations 23 to 26; and

(b) the number of economic operators selected to be invited to participate in the dialogue is less than the minimum number specified by the contracting authority in the contract notice,

that contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

(15) The contracting authority may require an economic operator to satisfy minimum levels of—

(a) economic and financial standing; and/or

(b) technical or professional ability,

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

(16) The contracting authority must send invitations in writing simultaneously to each economic operator selected to participate in the dialogue and the invitation must—

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(17) Where the contract documents are held by an entity other than the contracting authority, the contracting authority must ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

(18) The contracting authority must include the following information in the invitation—

(a) the date specified for the commencement of the competitive dialogue, the address to which replies must be sent and the one or more languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (4);

(c) an indication of the information to be included with the reply which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (4).

(19) The contracting authority or entity referred to in paragraph (16)(c) must supply such further information to the economic operator relating to the contract documents or the descriptive document as may reasonably be requested by that economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 6 days before the date specified in the invitation to tender as the final date of the receipt by it of tenders.

(20) The contracting authority must by notice in writing as soon as reasonably practicable after sending the invitations referred to in paragraph (16), inform any candidates that have not been selected to be invited to participate in the dialogue that they have been unsuccessful.

(21) The contracting authority must open with the participants selected in accordance with regulations 23 to 26 a dialogue the aim of which is to identify and define the means best suited to satisfying its needs.

(22) During the competitive dialogue procedure, a contracting authority—

(a) may discuss all aspects of the contract with the participants selected;

(b) must ensure equality of treatment among all participants and, in particular, must not provide information in a discriminatory manner which may give some participants an advantage over others; and

(c) must not reveal to the other participants solutions proposed or any confidential information communicated by a participant without that participant’s agreement.

(23) The contracting authority may provide for the competitive dialogue procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria in the contract notice or in the descriptive document.

(24) Where the contracting authority provides for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (23), it must—

(a) ensure that the number of economic operators to be invited to participate at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of economic operators to do so; and

(b) by notice in writing as soon as reasonably practicable after reducing the number of solutions to be discussed, inform the affected economic operators that they have been excluded from the competition.

(25) The contracting authority may continue the competitive dialogue procedure until it can identify one or more solutions, if necessary after comparing them, capable of meeting its needs.

(26) Where the contracting authority declares that the dialogue is concluded, it must—

(a) inform each participant that the dialogue is concluded;

(b) request each participant to submit a final tender containing all the elements required and necessary for the performance of the project on the basis of any solution presented and specified during the dialogue; and

(c) specify in the invitation to submit a tender the final date for the receipt by it of tenders, the address to which they must be sent and the language or languages in which they must be drawn up.

(27) The contracting authority may request a participant to clarify, specify or fine-tune a tender referred to in paragraph (26)(b), but such clarification, specification, fine-tuning or additional information must not involve changes to the basic features of the tender or the call for tender when those variations are likely to distort competition or have a discriminatory effect.

(28) The contracting authority must assess the tenders received on the basis of the award criteria specified in the contract notice or descriptive document and must award the contract to the participant which submits the most economically advantageous tender in accordance with regulation 30(1)(a).

(29) The contracting authority may request the participant identified as having submitted the most economically advantageous tender to clarify aspects of that tender or confirm commitments contained in the tender provided that this does not have the effect of modifying substantial aspects of the tender or of the call for tender and does not risk distorting competition or causing discrimination.

(30) The contracting authority may specify that payments may be made to a participant in respect of the participant’s expenses incurred in participating in the competitive dialogue procedure.

Framework agreements

19.—(1) A contracting authority which intends to conclude a framework agreement must comply with this regulation.

(2) Where the contracting authority intends to conclude a framework agreement, it must—

(a) follow one of the procedures set out in regulation 15, 16, 17 or 18 up to (but not including) the beginning of the procedure for the award of any specific contract set out in this regulation; and

(b) select an economic operator to be party to a framework agreement by applying award criteria set in accordance with regulation 30.

(3) Where the contracting authority awards a specific contract based on a framework agreement, it must—

(a) comply with the procedures set out in this regulation; and

(b) apply those procedures only to the economic operators which are party to the framework agreement.

(4) When awarding a specific contract on the basis of a framework agreement neither the contracting authority nor the economic operator must include in that contract terms that are substantially amended from the terms laid down in that framework agreement.

(5) Where the contracting authority concludes a framework agreement with one economic operator—

(a) it must award any specific contract within the limits of the terms laid down in the framework agreement; and

(b) in order to award a specific contract, the contracting authority may consult in writing the economic operator which is party to the framework agreement requesting that economic operator to supplement its tender if necessary.

(6) Where the contracting authority concludes a framework agreement with more than one economic operator, the minimum number of economic operators must be 3, insofar as there is a sufficient number of—

(a) economic operators to satisfy the selection criteria; or

(b) admissible tenders which meet the award criteria.

(7) Where the contracting authority concludes a framework agreement with more than one economic operator, a specific contract may be awarded—

(a) by application of the terms laid down in the framework agreement without re-opening competition; or

(b) where not all the terms of the proposed contract are laid down in the framework agreement, by re-opening competition between the economic operators which are parties to that framework agreement and which are capable of performing the proposed contract in accordance with paragraphs (8) and (9).

(8) Where the contracting authority is following the procedure set out in paragraph (7)(b), it must re-open the competition on the basis of the same or, if necessary, more precisely formulated terms, and where appropriate other terms referred to in the contract documents based on the framework agreement.

(9) Where the contracting authority is following the procedure set out in paragraph (7)(b), for each specific contract to be awarded it must—

(a) consult in writing the economic operators capable of performing the contract and invite them within a specified time limit to submit a tender in writing for each specific contract to be awarded;

(b) set a time limit for the receipt by it of the tenders which takes into account factors such as the complexity of the subject matter of the contract and the time needed to send in tenders;

(c) keep each tender confidential until the expiry of the time limit for the receipt by it of tenders;

(d) award each contract to the economic operator which has submitted the best tender on the basis of the award criteria specified in the contract documents based on the framework agreement; and

(e) by notice in writing as soon as reasonably practicable after the decision has been made, inform the economic operators that submitted tenders of its decision in relation to the award of the contract.

(10) The contracting authority must not conclude a framework agreement for a period which exceeds 4 years except in exceptional circumstances, in particular, circumstances relating to the subject of the framework agreement.

(11) In this regulation, a “specific contract” means a contract based on the terms of a framework agreement.

(12) The contracting authority must not use a framework agreement improperly or in such a way as to prevent, restrict or distort competition.

Dynamic purchasing systems

20.—(1) A contracting authority using a dynamic purchasing system must comply with this regulation.

(2) The contracting authority which seeks to establish a dynamic purchasing system must comply with the requirements of regulation 44(2) to (7) and must use only electronic means to—

(a) establish that system; and

(b) award contracts under it.

(3) The contracting authority must use the open procedure in accordance with regulation 15 to establish a dynamic purchasing system up to the beginning of the procedure for the award of contracts under the system set out in this regulation.

(4) When establishing a dynamic purchasing system, the contracting authority must—

(a) send to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No 1564/2005(6) stating that a dynamic purchasing system is to be established; and

(b) produce a specification which indicates—

(i) the nature of the goods, work, works or services intended to be purchased under that system; and

(ii) information concerning the purchasing system, the electronic equipment to be used in its operation, the arrangements for technical connection to the system, the rules governing its operation and any other necessary information relating to the system.

(5) When establishing a dynamic purchasing system a contracting authority may also produce additional documents relating to the operation of the system.

(6) Where the contracting authority establishes a dynamic purchasing system it must—

(a) offer unrestricted, direct and full access to the specification and to any additional documents by electronic means from the date of publication of the contract notice to the date when the system ceases to be operated; and

(b) indicate in the contract notice the internet address at which those documents may be examined.

(7) Throughout the duration of the dynamic purchasing system, the contracting authority must—

(a) give any economic operator the opportunity to—

(i) submit an indicative tender; and

(ii) be admitted to that system under the conditions referred to in paragraph (8); and

(b) complete the evaluation of an indicative tender within 15 days from the date of its submission or such longer period as the contracting authority may determine if no invitation to tender is issued under the system as provided in paragraph (13) within the 15 day period.

(8) The contracting authority must admit to the dynamic purchasing system each economic operator which satisfies the selection criteria and has submitted an indicative tender which complies with the specification and any additional documents produced by the contracting authority in accordance with paragraph (5) when establishing the system.

(9) The contracting authority must as soon as possible notify an economic operator of its admission to a dynamic purchasing system or of the rejection of its indicative tender and must do so in writing if requested by the economic operator.

(10) An economic operator which is admitted to a dynamic purchasing system may improve its indicative tender at any time provided that the improved tender complies with the specification described in paragraph (4)(b).

(11) Where the contracting authority proposes to award a contract under a dynamic purchasing system, it must send to the Official Journal as soon as possible after forming the intention a notice, in the form of a simplified contract notice on a dynamic purchasing system in Annex IX to Commission Regulation (EC) No 1564/2005, inviting economic operators to submit an indicative tender in accordance with paragraph (7)(a)(i) not less than 15 days from the date of the dispatch of the simplified contract notice.

(12) The indicative tenders received within the period specified in paragraph (11) must be evaluated by a contracting authority for admittance to the dynamic purchasing system before it proceeds with the issue of invitations to submit tenders in relation to any contract to be awarded under the dynamic purchasing system to an economic operator admitted to the system.

(13) The contracting authority must invite all economic operators admitted to the dynamic purchasing system to submit a tender for each contract within a time limit specified by the contracting authority.

(14) For each contract to be awarded under the dynamic purchasing system, the contracting authority—

(a) must award the contract to the economic operator which submits the tender which best meets the award criteria specified in the contract notice for the establishment of the dynamic purchasing system; and

(b) may, if appropriate, formulate those award criteria more precisely in the invitation to submit tenders.

(15) The contracting authority must by notice in writing as soon as reasonably practicable after a decision has been made in accordance with paragraph (14)(a), inform the economic operators that submitted tenders of its decision in relation to the award of the contract.

(16) The contracting authority may not charge any economic operator seeking admission to a dynamic purchasing system or which has been admitted to such a system in relation to any aspect of that system.

(17) A dynamic purchasing system established by a contracting authority may not be operated for more than 4 years, unless there are exceptional circumstances.

(18) The contracting authority must not use a dynamic purchasing system improperly or in such a way as to prevent, restrict or distort competition.

Electronic auctions

21.—(1) A contracting authority which holds an electronic auction must comply with this regulation.

(2) Subject to paragraph (3), the contracting authority may hold an electronic auction when using—

(a) the open procedure;

(b) the restricted procedure;

(c) the negotiated procedure in the circumstances referred to in regulation 13(a) and 14(1)(a)(i);

(d) the procedure set out in regulation 19(7)(b) on the re-opening of competition among the parties to a framework agreement; or

(e) the procedure set out in regulation 20 on the opening of competition for contracts to be awarded under a dynamic purchasing system.

(3) The contracting authority must not hold an electronic auction to precede the award of a public services contract or a public works contract having as its subject matter intellectual performance, such as the design of works.

(4) The contracting authority may only hold an electronic auction to precede the award of a contract when the contract specification can be established with precision.

(5) The contracting authority must base an electronic auction on—

(a) price alone where the contract is to be awarded on the basis of the lowest price; or

(b) price or the values of quantifiable elements of tenders indicated in the contract specification, where the contract is to be awarded on the basis of the offer which is the most economically advantageous in accordance with regulation 30(1)(a).

(6) When the contracting authority intends to hold an electronic auction it must state this in the contract notice.

(7) A contract specification prepared by the contracting authority in relation to a contract the award of which is to be preceded by an electronic auction must include—

(a) the quantifiable elements of tenders capable of expression in figures or percentages which will be the subject of the electronic auction;

(b) any limitations on the values for the quantifiable elements of tenders (resulting from the contract specification) which may be submitted in the electronic auction;

(c) the information to be made available to economic operators during the electronic auction and, where appropriate, an indication of when it will be made available to them;

(d) a description of the electronic auction process;

(e) the conditions under which the economic operators will be able to bid and, in particular, the minimum differences which may be required when bidding; and

(f) all relevant information concerning—

(i) the electronic system to be used in the electronic auction; and

(ii) the arrangements for and technical specifications relevant to connection to the electronic system to be used.

(8) Before proceeding with an electronic auction, the contracting authority must—

(a) make an initial evaluation of the tenders in accordance with the award criteria specified and with any weighting fixed for them; and

(b) by electronic means simultaneously invite all the economic operators which have submitted admissible tenders to submit new prices or new values in the electronic auction.

(9) Where the contracting authority is to award a contract on the basis of the offer which is the most economically advantageous to it in accordance with regulation 30(1)(a), each invitation referred to in paragraph (8)(b) must include the outcome of the evaluation of the tender submitted by the economic operator to which the invitation is sent, carried out in accordance with the weighting described in regulation 30(3).

(10) The contracting authority must include in the invitation referred to in paragraph (8)(b)—

(a) all relevant information concerning individual connection to the electronic system to be used in the electronic auction;

(b) the date and time of the start of the electronic auction;

(c) the number of phases in the electronic auction;

(d) the mathematical formula to be used in the electronic auction to determine automatic reranking of tenders on the basis of the new prices or new values submitted by economic operators and incorporating the weighting of all the criteria set to determine the most economically advantageous tender;

(e) where variant bids are authorised by the contracting authority, a separate mathematical formula for each variation; and

(f) the basis on which the electronic auction is to be closed and the appropriate additional information specified in paragraph (16).

(11) In relation to the formula referred to in paragraph (10)(d), any ranges used in the weighting of criteria must be set at a specified value before the invitation is sent to economic operators.

(12) At least two working days must elapse between the date on which the invitation referred to in paragraph (8)(b) is sent and the date of the electronic auction.

(13) During each phase of an electronic auction, the contracting authority—

(a) must instantaneously communicate to all economic operators participating in the auction at least sufficient information to enable them to ascertain their relative rankings in the auction at any time;

(b) may communicate to each economic operator other information concerning prices or values submitted by other economic operators provided that this has been stated in the contract specification; and

(c) may disclose the number of economic operators participating in that phase of the auction.

(14) During any phase of an electronic auction, the contracting authority must not disclose the identity of any economic operator participating in the auction.

(15) The contracting authority must close an electronic auction—

(a) at the date and time fixed for closure in the invitation referred to in paragraph (8)(b);

(b) when it receives no further new prices or new values which meet the requirements concerning minimum differences; or

(c) when the number of phases in the electronic auction specified in the invitation referred to in paragraph (8)(b) has been completed.

(16) Where a contracting authority intends to close an electronic auction—

(a) as described in paragraph (15)(b), it must state in the invitation referred to in paragraph (8)(b) the period which it intends to allow to elapse before it closes the auction after receiving a submission from an economic operator participating in the auction; or

(b) as described in paragraph (15)(c), it must state in the invitation referred to in paragraph (8)(b) the timetable for each phase in the auction.

(17) After closing an electronic auction the contracting authority must award the contract in accordance with regulation 30 on the basis of the results of the electronic auction.

(18) The contracting authority must not use an electronic auction improperly or in such a way as to prevent, restrict or distort competition or to change the subject matter of the contract as referred to in the contract notice and defined in the specification.

(19) The references to values in paragraph (5)(b), (8)(b), (10)(d), (13)(b) and (15)(b) must be interpreted as including price.

Central purchasing bodies

22.—(1) A contracting authority may purchase work, works, goods or services from or through a central purchasing body.

(2) Where a contracting authority makes purchases in accordance with paragraph (1), it is deemed to have complied with these Regulations to the extent that the central purchasing body has complied with them.

(1)

The annex to Commission Regulation (EC) No 1564/2005 was amended by Commission Regulation (EC) 1150/2009, OJ L 313, 29.11.2009, p.3.

(2)

The annex to Commission Regulation (EC) No 1564/2005 was amended by Commission Regulation (EC) 1150/2009, OJ L 313, 29.11.2009, p.3.

(3)

The annex to Commission Regulation (EC) No 1564/2005 was amended by Commission Regulation (EC) 1150/2009, OJ L 313, 29.11.2009, p.3.

(4)

The annex to Commission Regulation (EC) No 1564/2005 was amended by Commission Regulation (EC) 1150/2009, OJ L 313, 29.11.2009, p.3.

(5)

The annex to Commission Regulation (EC) No 1564/2005 was amended by Commission Regulation (EC) 1150/2009, OJ L 313, 29.11.2009, p.3.

(6)

The annex to Commission Regulation (EC) No 1564/2005 was amended by Commission Regulation (EC) 1150/2009, OJ L 313, 29.11.2009, p.3.