Procurement involving contracting authorities from different member StatesS
40.—(1) Without prejudice to regulation 13 (exclusions: public contracts between entities within the public sector), a contracting authority may act jointly with a contracting authority from another member State in the award of a public contract by using one of the means provided for in this regulation.
(2) A contracting authority must not use the means provided for in this regulation for the purpose of avoiding the application of mandatory public law provisions in the applicable law of the jurisdiction to which the authority is subject, where those provisions are in conformity with EU law.
(3) A contracting authority may use centralised purchasing activities offered by a central purchasing body located in another member State.
(4) A contracting authority may only use the provision of centralised purchasing activities by a central purchasing body located in another member State where they are conducted in accordance with the national provisions of the member State where the central purchasing body is located.
(5) The national provisions of the member State where the central purchasing body is located also apply to—
(a)the award of a contract under a dynamic purchasing system;
(b)the conduct of a reopening of competition under a framework agreement; and
(c)the determination, for the purpose of points (a) and (b) of Article 33(4) of the Directive (to which effect is given in these Regulations by regulation 34(7)(a) and (b)) (framework agreements), of which of the economic operators which are party to the framework agreement shall perform a given task.
(6) In the circumstances set out in paragraph (7), several contracting authorities from different member States may—
(a)jointly award a public contract, conclude a framework agreement or operate a dynamic purchasing system; and
(b)to the extent that they may do so in accordance with Article 33(2) of the Directive (to which effect is given in these Regulations by regulation 34(3) to (5) (framework agreements)), award contracts based on the framework agreement or award public contracts under the dynamic purchasing system.
(7) The circumstances referred to in paragraph (6) are that—
(a)unless the necessary elements have been regulated by an international agreement concluded between the member States concerned, the participating contracting authorities have concluded an agreement that determines—
(i)the responsibilities of the parties and the relevant applicable national provisions; and
(ii)the internal organisation of the procurement procedure, including the management of the procedure, the distribution of the works, supplies or services to be procured, and the conclusion of contracts; and
(b)the allocation of responsibilities and the applicable national law have been referred to in the procurement documents.
(8) When determining responsibilities and the applicable national law as referred to in paragraph (7)(a)(i), the participating contracting authorities may allocate specific responsibilities among them and determine the applicable provisions of the national laws of any of their respective member States.
(9) A participating contracting authority fulfils its obligations under these Regulations when it purchases works, supplies or services from a contracting authority which is responsible for the procurement procedure.
(10) Contracting authorities from different member States may set up a joint entity for the purpose of paragraph (1), subject to compliance with paragraph (11).
(11) The participating contracting authorities must, before undertaking any given procurement, by a decision of the competent body of the joint entity, agree on the applicable national procurement rules of—
(a)the member State where the joint entity has its registered office; or
(b)the member State where the joint entity is carrying out its activities.
(12) The agreement referred to in paragraph (11) may either apply for an undetermined period, when fixed in the constitutive act of the joint entity, or may be limited to a certain period of time, certain types of contract or one or more individual contract awards.
(13) The other provisions of these Regulations apply to procurement by the joint entity only where they are the national provisions applicable in accordance with paragraph (11).
(14) In this regulation—
“central purchasing body located in another member State” means any person which is a central purchasing body for the purposes of the Directive in the member State in which it is located; and
“contracting authority from another member State” means any person which is a contracting authority for the purposes of the Directive in a member State other than the United Kingdom, and references to “participating contracting authorities” shall, to the extent that they are from another member State, be interpreted accordingly.