PART 4U.K.SELECTION OF ECONOMIC OPERATORS

Criteria for the rejection of economic operatorsU.K.

23.—(1) Subject to paragraph (2), a contracting authority shall treat as ineligible and shall not select an economic operator in accordance with these Regulations if the contracting authority 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 M1 or article 9 or 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 M2, or in Scotland the offence of conspiracy, where that conspiracy relates to participation in a criminal organisation as defined in Article 2 of the Council Framework Decision 2008/841/JHA M3;

(b)involvement in serious organised crime or directing serious organised crime within the meaning of section 28 or 30 of the Criminal Justice and Licensing (Scotland) Act 2010 M4;

(c)corruption within the meaning of section 1 of the Public Bodies Corrupt Practices Act 1889 M5 or section 1 of the Prevention of Corruption Act 1906 M6;

(d)the offence of bribery;

(e)bribery within the meaning of section 1, 2 or 6 of the Bribery Act 2010 M7;

(f)bribery or corruption within the meaning of section 68 and 69 of the Criminal Justice (Scotland) Act 2003 M8;

F1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Framework Decision 2002/475/JHA M9;

(i)money laundering within the meaning of the Money Laundering Regulations 2003 M10 or money laundering or terrorist financing within the meaning of the Money Laundering Regulations 2007 M11 [F2or of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017];

(j)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 M12 or article 45, 46 or 47 of the Proceeds of Crime (Northern Ireland) Order 1996 M13;

(k)an offence in connection with proceeds of drug trafficking within the meaning of section 49, 50 or 51 of the Drug Trafficking Act 1994 M14;

(l)in Scotland, the offence of incitement to commit any of the crimes described in this paragraph; or

(m)any other offence within the meaning of Article [F339(1)(a), (b), (d), or (e)] of the Defence and Security Procurement Directive as defined by [F4the law of any part of the United Kingdom or of Gibraltar].

(2) In any case where an economic operator or its directors or any other person who has powers of representation, decision or control has been convicted of an offence described in paragraph (1), a contracting authority may disregard the prohibition described there if it is satisfied that there are overriding requirements in the general interest which justify doing so in relation to that economic operator.

(3) A contracting authority may apply to the relevant competent authority to obtain further information regarding the economic operator and in particular details of convictions of the offences listed in paragraph (1) if it considers it needs such information to decide on any exclusion referred to in that paragraph.

(4) A contracting authority may treat an economic operator as ineligible or decide not to select an economic operator in accordance with these Regulations on one or more of the following grounds, namely that the economic operator—

(a)being an individual is a person in respect of whom a debt relief order has been made or is bankrupt or has had a receiving order or administration order or bankruptcy restrictions order or debt relief restrictions order made against him or has made any composition or arrangement with or for the benefit of creditors or has made any conveyance or assignment for the benefit of creditors or appears unable to pay, or to have no reasonable prospect of being able to pay, a debt within the meaning of section 268 of the Insolvency Act 1986 M15, or article 242 of the Insolvency (Northern Ireland) Order 1989 M16, or in Scotland has granted a trust deed for creditors or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of his estate, or is the subject of any similar procedure under the law of any other State;

(b)being a partnership constituted under Scots law has granted a trust deed or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of its estate;

(c)being a company or any other entity within the meaning of section 255 of the Enterprise Act 2002 M17 has passed a resolution or is the subject of an order by the court for the company's winding up otherwise than for the purpose of bona fide reconstruction or amalgamation, or has had a receiver, manager or administrator on behalf of a creditor appointed in respect of the company's business or any part of the company's business or is the subject of the above procedures or is the subject of similar procedures under the law of any other State;

(d)has been convicted of a criminal offence relating to the conduct of the economic operator's business or profession;

(e)has committed an act of grave misconduct in the course of the economic operator's business or profession, including a breach of obligations regarding security of information or security of supply required by a contracting authority in accordance with regulation 38 or 39 during a previous contract;

(f)has been found, on the basis of any evidence, including protected data sources, not to possess the reliability necessary to exclude risks to the security of the United Kingdom;

(g)has not fulfilled obligations relating to the payment of social security contributions under the law of any part of the United Kingdom or of [F5Gibraltar];

(h)has not fulfilled obligations relating to the payment of taxes under the law of any part of the United Kingdom or of [F6Gibraltar];

(i)is guilty of serious misrepresentation in providing any information referred to within this regulation or regulation 24, [F725 or 26] or has not provided such information in response to a request by the contracting authority;

(j)in relation to procedures for the award of a services contract, is not licensed in the [F8United Kingdom or Gibraltar] or is not a member of an organisation [F9in the United Kingdom or Gibraltar] when the law [F10of the relevant part of the United Kingdom or, as the case may be, of Gibraltar] prohibits the provision of the services to be provided under the contract by a person who is not so licensed or who is not such a member; or

[F11(k)is not—

(i)certified, by the Registrar of Companies in the United Kingdom or Gibraltar, as incorporated; or

(ii)certified as having declared on oath that it is carrying on business in the trade in question in the United Kingdom, or in Gibraltar, at a specific place of business and under a specific trading name.]

(5) The contracting authority may require an economic operator to provide such information as it considers it needs to make the evaluation in accordance with paragraphs (1) and (4) except that it shall accept as conclusive evidence that an economic operator does not fall within the ground specified in paragraphs (1) or (4)(a), (b), (c), (d), (g) or (h) if that economic operator provides to the contracting authority—

(a)in relation to a ground specified in paragraphs (1) and (4)(a), (b), (c) or (d)—

(i)an extract from the judicial record; or

(ii)[F12where such a judicial record is not maintained in respect of the relevant place], a document issued by the relevant judicial or administrative authority;

(b)in relation to the ground specified in paragraph (4)(g) or (h), a certificate issued by the relevant competent authority; and

(c)F13... where the documentary evidence specified in paragraphs (5)(a) and (b) is not issued [F14in respect of the relevant place] in relation to one of the grounds specified in paragraphs (1), (4)(a), (b), (c), (d), (g) or (h), a declaration on oath made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths.

[F15(6) In this regulation—

“relevant”, in relation to a judicial, administrative or competent authority, notary public or Commissioner for oaths means an authority designated in respect of the relevant place, or a notary public or Commissioner for oaths in the relevant place;

“relevant place” means whichever of the following the context requires—

(a)

the United Kingdom;

(b)

the relevant part of the United Kingdom;

(c)

Gibraltar.]

F16(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M11977 c. 45. Section 1 was amended by section 5(1) of the Criminal Attempts Act 1981 (c. 47), Part 2 of Schedules 1 and 2 to the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c. 40) and Schedule 1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52). Section 1A was inserted by section 5(1) of the Criminal Justice (Terrorism and Conspiracy) Act 1988 and was amended by section 72(1)(a) of the Coroners and Justice Act 2009 (c. 25).

M2S.I. 1983/1120 (N.I.13); amended by section 6(1) of, and Part 2 of Schedules 1 and 2 to, the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c. 40). There are other amendments which are not relevant to these Regulations.

M3OJ No L 300, 11.11.2008, p.42.

M51889 c. 69. This Act has been repealed by Schedule 2 to the Bribery Act 2010 (c. 23).

M61906 c. 34. Section 1 was amended by section 108(2) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) and repealed by Schedule 2 to the Bribery Act 2010 (c. 23).

M9OJ No L 164, 22.6.2002, p.3, as amended by Council Framework Decision 2008/919/JHA, OJ No L 330, 9.12.2008, p.21.

M10S.I. 2003/3075. These Regulations were revoked in relation to England, Wales and Scotland by regulation 1(3) of S.I. 2007/2157 and in relation to Northern Ireland by S.I. 2008/1741.

M11S.I. 2007/2157. Regulation 2(1) is amended by regulation 1 of S.I. 2009/1912. There are other amendments which are not relevant to these Regulations.

M121988 c. 33; sections 93A, 93B and 93C were inserted by sections 29(1), 30 and 31 of the Criminal Justice Act 1993 (c. 36) and were repealed by Schedules 11 and 12 to the Proceeds of Crime Act 2002 (c. 29).

M13S.I. 1996/1299 (N.I. 9); articles 45 to 47 were repealed by Schedules 11 and 12 to the Proceeds of Crime Act 2002 (c. 29). There are other amendments which are not relevant to these Regulations.

M141994 c. 37. Sections 49, 50 and 51 were repealed by Schedules 11 and 12 to the Proceeds of Crime Act 2002 (c. 29).

M16S.I. 1989/2405 (N.I. 19). There are amendments to this Order which are not relevant to these Regulations.

Information as to economic and financial standingU.K.

24.—(1) Subject to F17... paragraph (2), in assessing whether an economic operator meets any minimum standards of economic and financial standing 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 take into account any of the information specified in paragraph (6).

(2) Where the information specified in paragraph (6) is not appropriate in a particular case, a contracting authority may require an economic operator to provide other information to demonstrate the economic operator's economic and financial standing.

(3) A contracting authority which requires information to be provided in accordance with paragraph (1) or (2) shall specify in the contract notice the information which the economic operator must provide.

(4) 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.

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

(6) The information referred to in paragraph (1) is—

(a)appropriate statements from the economic operator's bankers or where appropriate, evidence of relevant professional risk indemnity insurance;

(b)statements of accounts or extracts from those accounts relating to the business of the economic operator where publication of the statement is required under the law of the [F18relevant part of the United Kingdom or of Gibraltar]; and

(c)where appropriate, a statement, covering the three previous financial years of the economic operator, of—

(i)the overall turnover of the business of the economic operator; and

(ii)where appropriate, the turnover in respect of the work, works, goods or services which are of a similar type to the subject matter of the contract.

Textual Amendments

Information as to technical or professional abilityU.K.

25.—(1) F19... 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 [F20in 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 [F21United 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 [F22the 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—

F23(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(bb)the relevant European or international standards; and

[F24(ii)from either—

(aa)an independent body established in the United Kingdom conforming to retained EU 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

Supplementary informationU.K.

26.  F25... The contracting authority may require an economic operator to provide information supplementing the information provided in accordance with regulations 23, 24 or 25 or to clarify that information, provided that the information so required relates to the matters specified in regulations 23, 24 or 25.

Textual Amendments

Official lists of approved economic operatorsU.K.

F2627.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

ConsortiaU.K.

28.—(1) In this regulation a “consortium” means two or more persons, at least one of whom is an economic operator, acting jointly for the purpose of being awarded a contract.

(2) Subject to paragraph (3), a contracting authority shall not treat the tender of a consortium as ineligible nor decide not to include a consortium amongst those economic operators from which it will make the selection of economic operators to be invited to tender for or to negotiate a contract on the grounds that the consortium has not formed a legal entity for the purposes of tendering for or negotiating the contract.

(3) Where a contracting authority awards a contract to a consortium it may, if it is justified for the satisfactory performance of the contract, require the consortium to form a legal entity before entering into, or as a term of, the contract.

(4) In these Regulations references to an economic operator where the economic operator is a consortium includes a reference to each person who is a member of that consortium.

CorporationsU.K.

29.—F27(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In the case of—

(a)a services contract,

(b)a works contract, or

(c)a supply contract which includes services or siting and installation operations,

a contracting authority may require an economic operator which is not an individual to indicate in the tender or in the request to be selected to tender for or to negotiate the contract, the names and relevant professional qualifications of the staff who will be responsible for the performance of the contract.

Textual Amendments

NotificationU.K.

30.—(1) Where a contracting authority decides, prior to the stage at which it makes a decision to which regulation 33(1) (award decision) applies, to exclude an applicant, the contracting authority shall notify the applicant of that exclusion.

(2) In this regulation, “applicant” means an economic operator which submitted an offer, applied to be included amongst the economic operators to be selected to tender for or to negotiate the contract, or applied to be a party to the framework agreement.

(3) For the purposes of this regulation, an applicant is excluded if, and only if—

(a)the applicant, or the applicant's tender, is excluded as mentioned in regulation 17(7), 18(9) or 19(10); or

(b)the applicant is not among those selected to be—

(i)invited to tender as mentioned in regulation 17(8);

(ii)invited to negotiate, as mentioned in regulation 18(10) or (25), or for the purposes of regulation 18(24); or

(iii)invited to participate, as mentioned in regulation 19(11) or (25), or for the purposes of regulation 19(24).