The Defence and Security Public Contracts Regulations 2011

Grounds for ineffectiveness

60.—(1) There are three grounds for ineffectiveness.

The first ground

(2) Subject to paragraph (3), the first ground applies where the contract has been awarded without the prior publication of a contract notice in any case in which these Regulations required the prior publication of a contract notice.

(3) The first ground does not apply if all the following apply—

(a) the contracting authority considered the award of the contract without the prior publication of a contract notice to be permitted by these Regulations;

(b) the contracting authority has had published in the Official Journal a voluntary transparency notice expressing its intention to enter into the contract; and

(c) the contract has not been entered into before the end of a period of at least 10 days beginning with the day after the date on which the voluntary transparency notice was published in the Official Journal.

(4) In paragraph (3), “voluntary transparency notice” means a notice—

(a) which contains the following information—

(i) the name and contact details of the contracting authority;

(ii) a description of the object of the contract;

(iii) a justification of the decision of the contracting authority to award the contract without the prior publication of a contract notice;

(iv) the name and contact details of the economic operator to be awarded the contract; and

(v) where appropriate, any other information which the contracting authority considers it useful to include; and

(b) which, if Commission Regulation (EC) No 1564/2005 sets out a form to be used for the purposes of paragraph (3), is in that form.

The second ground

(5) The second ground applies where all the following apply—

(a) the contract has been entered into in breach of any requirement imposed by—

(i) regulation 34 (the standstill period);

(ii) regulation 56 (contract-making suspended by challenge to award); or

(iii) regulation 57(1)(b) (interim order restoring or modifying a suspension originally imposed by regulation 56);

(b) there has also been a breach of the duty owed to the economic operator in accordance with regulation 51 in respect of obligations other than those imposed by regulation 34 (the standstill period) and this Part;

(c) the breach mentioned in sub-paragraph (a) has deprived the economic operator of the possibility of starting proceedings in respect of the breach mentioned in sub-paragraph (b), or pursuing them to a proper conclusion, before the contract was entered into; and

(d) the breach mentioned in sub-paragraph (b) has affected the chances of the economic operator obtaining the contract.

The third ground

(6) Subject to paragraph (7), the third ground applies where all the following apply—

(a) the contract is based on a framework agreement;

(b) the contract was awarded in breach of any requirement imposed by regulation 20(7)(b), (8), and (9) (award of particular contracts under framework agreements through re-opening of competition); and

(c) the estimated value of the contract is equal to or exceeds the relevant threshold for the purposes of regulation 9.

(7) The third ground does not apply if all the following apply—

(a) the contracting authority considered the award of the contract to be in accordance with the provisions mentioned in paragraph (6)(b);

(b) the contracting authority has, despite regulation 33(6), voluntarily complied with the requirements set out in regulation 33(1) to (3); and

(c) the contract has not been entered into before the end of the standstill period.