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The Public Contracts Regulations 2015

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Point in time view as at 11/06/2021.

Changes to legislation:

The Public Contracts Regulations 2015, CHAPTER 1 is up to date with all changes known to be in force on or before 04 December 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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CHAPTER 1U.K.SCOPE AND GENERAL PRINCIPLES

SECTION 1U.K.Scope

SUB-SECTION 1U.K.Subject-matter and mixed procurement
Subject-matter and scope of Part 2U.K.

3.—(1) This Part establishes rules on the procedures for procurement by contracting authorities with respect to public contracts and design contests which—

(a)have a value estimated to be not less than the relevant threshold mentioned in regulation 5, and

(b)are not excluded from the scope of this Part by any other provision in this Section.

[F1(2) This Part—

(a)does not oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b)does not preclude the United Kingdom from taking such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production or trade in arms, munitions and war material, provided that such measures do not adversely affect the conditions of competition regarding products which are not intended for specifically military purposes.

(3) The arms, munitions and war material to which paragraph (2)(b) applies are, subject to paragraph (5), those included in the 1958 List.

(4) Subject to the effect of any regulations made under paragraph (5), any measures which, if they had been taken immediately before IP completion day, would have been covered by Article 346 of TFEU shall be regarded as measures covered by paragraph (2).

(5) The Secretary of State may make regulations providing that the 1958 List is to be treated for the purposes of this Part as if it were changed in respects specified in the regulations.

(6) In this regulation, “the 1958 List” means the list of arms, munitions and war material adopted by the Council of the European Economic Community in its decision 255/58 of 15th April 1958.]

Textual Amendments

Mixed procurementU.K.

4.—(1) In the case of mixed contracts which have as their subject-matter different types of procurement all of which are covered by this Part—

(a)contracts which have as their subject-matter two or more types of procurement (works, services or supplies) shall be awarded in accordance with the provisions applicable to the type of procurement that characterises the main subject-matter of the contract in question; and

(b)in the case of—

(i)mixed contracts consisting partly of services to which Section 7 applies and partly of other services, or

(ii)mixed contracts consisting partly of services and partly of supplies,

the main subject-matter shall be determined in accordance with which of the estimated values of the respective services, or of the respective services and supplies, is the highest.

(2) In the case of contracts which have as their subject-matter procurement covered by this Part and procurement not covered by this Part—

(a)where the different parts of a given contract are objectively separable—

(i)contracting authorities may choose to award separate contracts for the separate parts or to award a single contract;

(ii)where contracting authorities choose to award separate contracts for separate parts, the decision as to which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned;F2...

(iii)where contracting authorities choose to award a single contract, this Part applies to the ensuing mixed contract, irrespective of—

(aa)the value of the parts that would otherwise fall under a different legal regime, and

(bb)which legal regime those parts would otherwise have been subject to;[F3; and

(iv)where, in the case of mixed contracts containing elements of public contracts covered by this Part and of concession contracts, contracting authorities choose to award a single contract, that contract shall be awarded in accordance with this Part, provided that the estimated value of the part of the contract which constitutes a public contract covered by this Part, calculated in accordance with regulation 6, is equal to or greater than the relevant threshold set out in regulation 5;]

(b)where the different parts of a given contract are objectively not separable, the applicable legal regime shall be determined on the basis of the main subject-matter of that contract.

[F4(2A) In the case of contracts which have as their subject-matter both procurement covered by this Part and procurement for the pursuit of an activity which is subject to the Utilities Contracts Regulations 2016, the applicable rules shall, despite paragraph (2), be determined by regulations 6 and 7 of those Regulations.]

(3) But where part of a given contract is covered by [F5regulation 3(2)] or the Defence and Security Regulations, regulation 16 applies instead of [F6paragraphs (1) to (2A)].

Textual Amendments

SUB-SECTION 2U.K.Thresholds
Threshold amountsU.K.

5.—(1) This Part applies to procurements with a value net of VAT estimated to be equal to or greater than the following thresholds:—

(a)for public works contracts, [F7£4,733,252];

(b)for public supply contracts and public service contracts awarded by central government authorities, and design contests organised by such authorities, [F8£122,976], subject to paragraph (2);

(c)for public supply contracts and public service contracts awarded by sub-central contracting authorities, and design contests organised by such authorities, [F9£189,330];

(d)for public service contracts for social and other specific services listed in Schedule 3, [F10£663,540].

(2) Where public supply contracts are—

(a)awarded by central government authorities operating in the field of defence, and

(b)concern products not covered by Schedule 4,

the applicable threshold for the purposes of paragraph (1) is the sum specified in [F11paragraph (1)(c)].

F12(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F13(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F14Review and amendment of certain thresholdsU.K.

5A.—(1) Every two years the Minister for the Cabinet Office must review the thresholds mentioned in regulation 5(1)(a), (b) and (c) (“the reviewable thresholds”) to verify whether they correspond with the thresholds established for those purposes in the GPA.

(2) The Minister must do so by calculating the sterling value of each of the reviewable thresholds on the basis of the average daily value of sterling in terms of the special drawing rights mentioned in the GPA over a period of 24 months ending with 31st August.

(3) The Minister must make that calculation using the applicable conversion rates in the monthly International Financial Statistics published from time to time by the International Monetary Fund.

(4) If the sterling value of a reviewable threshold so calculated differs from the sum for the time being mentioned in regulation 5(1) in respect of that threshold, the Minister must make regulations amending regulation 5(1) so as to substitute for that sum the sum equal to that value.

(5) Such regulations—

(a)must be made and laid before Parliament before 1st November following the end of the 24-month period covered by the review; and

(b)must provide for the substitution to come into force on the following 1st January.

(6) The first review under this regulation must relate to the 24-month period ending with 31st August 2021.]

Textual Amendments

Methods for calculating the estimated value of procurementU.K.
General rules

6.—(1) The calculation of the estimated value of a procurement shall be based on the total amount payable, net of VAT, as estimated by the contracting authority, including any form of option and any renewals of the contracts as explicitly set out in the procurement documents.

(2) Where the contracting authority provides for prizes or payments to candidates or tenderers it shall take them into account when calculating the estimated value of the procurement.

(3) Where a contracting authority is comprised of separate operational units, account shall be taken of the total estimated value for all those units.

(4) But where a separate operational unit is independently responsible for its procurement, or certain categories of its procurement, the values may be estimated at the level of the unit in question.

(5) The choice of the method used to calculate the estimated value of a procurement shall not be made with the intention of excluding it from the scope of this Part.

(6) A procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Part, unless justified by objective reasons.

(7) The estimated value shall be calculated as at the moment at which the call for competition is [F15submitted] or, in cases where a call for competition is not foreseen, at the moment at which the contracting authority commences the procurement procedure (for example, where appropriate, by contacting economic operators in relation to the procurement).

(8) In the case of framework agreements and dynamic purchasing systems, the value to be taken into consideration shall be the maximum estimated value, net of VAT, of all the contracts envisaged for the total term of the framework agreement or the dynamic purchasing system.

(9) In the case of innovation partnerships, the value to be taken into consideration shall be the maximum estimated value, net of VAT, of the research and development activities to take place during all stages of the envisaged partnership as well as of the supplies, services or works to be developed and procured at the end of the envisaged partnership.

(10) In the case of public works contracts, the calculation of the estimated value shall take account of both the cost of the works and the total estimated value of the supplies and services that are made available to the contractor by the contracting authority provided that they are necessary for executing the works.

Treatment of lots

(11) Where a proposed work or a proposed provision of services may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots.

(12) Where a proposal for the acquisition of similar supplies may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots when applying regulation 5(1)(b) and (c) (read with regulation 5(2)).

(13) For the purposes of paragraphs (11) and (12), where the aggregate value of the lots is equal to or greater than the relevant threshold mentioned in regulation 5, this Part applies to the awarding of each lot.

(14) Despite paragraphs (11) to (13), contracting authorities may, subject to paragraph (15), award contracts for individual lots without applying the procedures provided for by this Part, but only if the estimated value, net of VAT, of the lot concerned is less than—

(a)[F16£70,778] for supplies or services, or

(b)[F17£884,720] for works.

(15) The aggregate value of the lots awarded in reliance on paragraph (14) shall not exceed 20% of the aggregate value of all the lots into which the proposed work, the proposed acquisition of similar supplies, or the proposed provision of services, has been divided.

Other specific rules

(16) In the case of public supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on either of the following:—

(a)the total actual value of the successive contracts of the same type awarded during the preceding 12 months or financial year adjusted, where possible, to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract;

(b)the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year where that is longer than 12 months.

(17) In the case of public supply contracts relating to the leasing, hire, rental or hire purchase of products, the value to be taken as a basis for calculating the estimated contract value shall be as follows:—

(a)in the case of fixed-term public contracts, where that term is less than or equal to 12 months, the total estimated value for the term of the contract or, where the term of the contract is greater than 12 months, the total value including the estimated residual value;

(b)in the case of public contracts without a fixed term, or public contracts the term of which cannot be defined, the monthly value multiplied by 48.

(18) In the case of public service contracts, the basis for calculating the estimated contract value shall, where relevant be the following:—

(a)in the case of insurance services, the premium payable and other forms of remuneration;

(b)in the case of banking and other financial services, the fees, commissions payable, interest and other forms of remuneration;

(c)in the case of design contracts, the fees, commissions payable and other forms of remuneration.

(19) In the case of public service contracts which do not indicate a total price, the basis for calculating the estimated contract value shall be the following:—

(a)in the case of fixed-term contracts where that term is less than or equal to 48 months, the total value for their full term;

(b)in the case of contracts without a fixed term or with a term greater than 48 months, the monthly value multiplied by 48.

Textual Amendments

SUB-SECTION 3U.K.Exclusions
[F18Contracts in the water, energy, transport and postal services sectorsU.K.

7.—(1) This Part does not apply to public contracts or design contests which—

(a)under the UCR 2016 are awarded or organised by contracting authorities—

(i)exercising one or more of the activities referred to in regulations 9 to 15 of those Regulations, and

(ii)for the pursuit of those activities;

(b)are excluded from the scope of the UCR 2016 by regulations 18, 23 or 34 of those Regulations; or

(c)are awarded or organised—

(i)by a contracting authority which provides postal services within the meaning of regulation 14 of the UCR 2016, and

(ii)for the pursuit of any of the following activities—

(aa)added value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services and transmission of registered electronic mail);

(bb)financial services which are covered by CPV codes 66100000-1 to 66720000-3 and by regulation 21(1)(d) of the UCR 2016, including in particular postal money orders and postal giro transfers;

(cc)philatelic services;

(dd)logistics services (services combining physical delivery and warehousing, or either of them, with other non-postal functions).

(2) In this regulation, “the UCR 2016” means the Utilities Contracts Regulations 2016.]

Textual Amendments

Specific exclusions in the field of electronic communicationsU.K.

8.—(1) This Part does not apply to public contracts, or design contests, for the principal purpose of permitting contracting authorities to provide or exploit public communications networks or to provide to the public one or more electronic communications services.

(2) In this regulation, “public communications network” and “electronic communications service” have the same meanings as in Directive 2002/21/EC of the European Parliament and of the Council M1 as amended from time to time.

Marginal Citations

M1OJ No L 108, 24.4.2002, p33, last amended by Directive 2009/140/EC of the European Parliament and of the Council (OJ No L 337, 18.12.2009, p37).

Public contracts awarded, and design contests organised, pursuant to international rulesU.K.

9.—(1) This Part does not apply to public contracts, or design contests, which the contracting authority is obliged to award or organise in accordance with procurement procedures which are different from those laid down by this Part and are established by any of the following:—

(a)a legal instrument creating international law obligations, such as an international agreement, concluded in conformity with the [F19Retained] Treaties, between [F20the United Kingdom and one or more other] countries (or subdivisions of such countries) and covering works, supplies or services intended for the joint implementation or exploitation of a project by its signatories;

(b)an international organisation.

(2) This Part does not apply to public contracts, or design contests, which the contracting authority awards or organises in accordance with procurement rules provided by an international organisation or international financing institution where the public contracts or design contests concerned are fully financed by that organisation or institution.

(3) In the case of public contracts, or design contests, co-financed for the most part by an international organisation or international financing institution, the parties shall agree on applicable procurement procedures.

(4) In the case of contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules, regulation 17 applies instead of paragraphs (1) to (3) of this regulation.

Textual Amendments

Specific exclusions for service contractsU.K.

10.—(1) This Part does not apply to public service contracts—

(a)for the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property, or which concern interests in or rights over any of them;

(b)for—

(i)the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media service providers, or

(ii)broadcasting time or programme provision that are awarded to audiovisual or radio media service providers;

(c)for arbitration or conciliation services;

(d)for any of the following legal services:—

(i)legal representation of a client by a lawyer F21... in—

(aa)an arbitration or conciliation held in [F22the United Kingdom, another] country or before an international arbitration or conciliation instance, or

(bb)judicial proceedings before the courts, tribunals or public authorities of [F23the United Kingdom or another] country or before international courts, tribunals or institutions;

(ii)legal advice given—

(aa)in preparation of any of the proceedings referred to in paragraph (i), or

(bb)where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings,

provided that the advice is given by a lawyer F24...;

(iii)document certification and authentication services which must be provided by notaries;

(iv)legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the [F25United Kingdom] or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;

(v)other legal services which in the [F26United Kingdom] are connected, even occasionally, with the exercise of official authority;

(e)for—

(i)financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of [F27Directive 2014/65/EU] of the European Parliament and of the Council M2 as amended from time to time,

(ii)central bank services, or

(iii)operations conducted with the European Financial Stability Facility and the European Stability Mechanism;

(f)for loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;

(g)which are employment contracts;

(h)for civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services;

(i)for public passenger transport services by rail or metro; or

(j)for political campaign services covered by CPV codes 79341400-0, 92111230-3 and 92111240-6, when awarded by a political party in the context of an election campaign.

(2) In this Regulation—

(a)“audiovisual media services” and “media service providers” have, respectively, the meanings given by Articles 1(1)(a) and 1(1)(d) of Directive 2010/13/EU of the European Parliament and of the Council M3 as amended from time to time;

[F28(aa)“lawyer” means a person practising as an advocate, barrister or solicitor in any part of the United Kingdom or in Gibraltar;]

(b)“programme” has the meaning given by Article 1(1)(b) of that Directive as amended from time to time, but also includes radio programmes and radio programme materials; and

(c)“programme material” has the same meaning as “programme”.

Textual Amendments

F27Words in reg. 10(1)(e)(i) substituted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 5 para. 23 (with reg. 7)

Marginal Citations

M2OJ No L 145, 30.4.2004, p1, last amended by Directive 2010/78/EU of the European Parliament and of the Council (OJ No L 331, 15.12.2010, p120).

M3OJ No L 95, 15.3.2010, p1.

Service contracts awarded on the basis of an exclusive rightU.K.

11.  This Part does not apply to public service contracts awarded by a contracting authority to another contracting authority on the basis of an exclusive right which the latter enjoys pursuant to a law, regulation or published administrative provision which is compatible with [F29anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 because of the effect which TFEU had immediately before IP completion day in giving rise to any of the rights, powers, liabilities, obligations, restrictions, remedies and procedures mentioned in that section].

Textual Amendments

Public contracts between entities within the public sectorU.K.
Award of contracts to controlled persons

12.—(1) A public contract awarded by a contracting authority to a legal person falls outside the scope of this Part where all of the following conditions are fulfilled:—

(a)the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments;

(b)more than 80% of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; and

(c)there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the [F30Retained] Treaties, which do not exert a decisive influence on the controlled legal person.

(2) A public contract also falls outside the scope of this Part where a controlled legal person which is a contracting authority awards the contract to—

(a)its controlling contracting authority, or

(b)another legal person controlled by the same contracting authority,

provided that there is no direct private capital participation in the legal person being awarded the contract with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the [F31Retained] Treaties, which do not exert a decisive influence on the legal person being awarded the contract.

(3) A contracting authority shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of paragraph (1)(a) where—

(a)it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person, or

(b)the control is exercised by another legal person which is itself controlled in the same way by the contracting authority,

and references to “control”, “controlled” and “controlling” in paragraphs (1) to (3) shall be interpreted accordingly.

Award of contracts where there is joint control

(4) A contracting authority which does not exercise over a legal person control within the meaning of paragraph (3) may nevertheless award a public contract to that legal person without applying this Part where all of the following conditions are fulfilled:—

(a)the contracting authority exercises jointly with other contracting authorities a control over that legal person which is similar to that which they exercise over their own departments;

(b)more than 80% of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; and

(c)there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the [F32Retained] Treaties, which do not exert a decisive influence on the controlled legal person.

(5) For the purposes of paragraph (4)(a), contracting authorities exercise joint control over a legal person where all of the following conditions are fulfilled:—

(a)the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities;

(b)those contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and

(c)the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities.

(6) For the purposes of paragraph (5)(a), individual representatives may represent several or all of the participating contracting authorities.

Contracts which establish or implement co-operation between contracting authorities

(7) A contract concluded exclusively between two or more contracting authorities falls outside the scope of this Part where all of the following conditions are fulfilled:—

(a)the contract establishes or implements a co-operation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;

(b)the implementation of that co-operation is governed solely by considerations relating to the public interest; and

(c)the participating contracting authorities perform on the open market less than 20% of the activities concerned by the co-operation.

Determination of percentages

(8) For the determination of the percentage of activities referred to in paragraphs (1)(b), (4)(b) and (7)(c), the average total turnover, or an appropriate alternative activity-based measure such as costs incurred by the relevant legal person or contracting authority with respect to services, supplies and works for the 3 years preceding the contract award shall be taken into consideration.

(9) Where, because of—

(a)the date on which the relevant legal person or contracting authority was created or commenced activities, or

(b)a reorganisation of its activities,

the turnover, or alternative activity-based measure such as costs, are either not available for the preceding 3 years or no longer relevant, it shall be sufficient to show that the measurement of activity is credible, particularly by means of business projections.

Textual Amendments

SUB-SECTION 4U.K.Specific situations
Contracts subsidised by contracting authoritiesU.K.

13.—(1) This Part applies to the awarding of the following contracts:—

(a)works contracts which are subsidised directly by contracting authorities by more than 50% and the estimated value of which, net of VAT, is equal to or greater than the sum specified in [F33regulation 5(1)(a)], where those contracts involve any of the following activities:—

(i)civil engineering activities as listed in Schedule 2;

(ii)building work for hospitals, facilities intended for sports, recreation and leisure, school and university buildings and buildings used for administrative purposes;

(b)service contracts which are subsidised directly by contracting authorities by more than 50% and the estimated value of which, net of VAT, is equal to or greater than the sum specified in [F34regulation 5(1)(c)] and which are connected to a works contract as referred to in paragraph (a).

F35(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The contracting authorities providing the subsidies referred to in paragraph (1) shall ensure compliance with this Part where they do not themselves award the subsidised contract or where they award that contract for and on behalf of other entities.

Textual Amendments

Research and development servicesU.K.

14.  This Part applies to public service contracts for research and development services which are covered by CPV codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5 only if—

(a)the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, and

(b)the service provided is wholly remunerated by the contracting authority.

Defence and securityU.K.

15.—(1) This Part applies to the awarding of public contracts and to design contests organised in the fields of defence and security, with the exception of the following contracts:—

(a)contracts falling within the scope of the Defence and Security Regulations;

(b)contracts to which those Regulations do not apply by virtue of regulations 7 or 9 of those Regulations.

(2) This Part does not apply to public contracts and design contests not otherwise exempted by paragraph (1)—

(a)to the extent that the protection of the essential security interests of the United Kingdom F36... cannot be guaranteed by less intrusive measures, for example by imposing requirements aimed at protecting the confidential nature of information which the contracting authority makes available in a contract award procedure as provided for in this Part; or

(b)to the extent that the application of this Part would oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security.

(3) Where the procurement and performance of the public contract or design contest are classified as secret or must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in any part of the United Kingdom, this Part does not apply provided that the United Kingdom has determined that the essential interests concerned cannot be guaranteed by less [F37intrusive measures], such as those referred to in paragraph (2)(a).

Textual Amendments

Mixed procurement involving defence or security aspectsU.K.

16.—(1) This regulation applies in the case of mixed contracts which have as their subject-matter procurement covered by this Part and procurement covered by [F38regulation 3(2)] or the Defence and Security Regulations.

(2) Where the different parts of a given public contract are objectively separable, contracting authorities may choose to award separate contracts for the separate parts or to award a single contract.

(3) The decision to award a single contract shall not, however, be taken for the purpose of excluding contracts from the application of either this Part or the Defence and Security Regulations.

(4) Where contracting authorities choose to award separate contracts for separate parts, the decision of which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned.

(5) Where contracting authorities choose to award a single contract, the following criteria shall apply to determine the applicable legal regime:—

(a)where part of a given contract is covered by [F39regulation 3(2)], the contract may be awarded without applying this Part, provided that the award of a single contract is justified by objective reasons;

(b)where part of a given contract is covered by the Defence and Security Regulations, the contract may be awarded in accordance with those Regulations, provided that the award of a single contract is justified by objective reasons.

(6) Paragraph (5)(b) is without prejudice to the thresholds and exclusions for which the Defence and Security Regulations provide.

(7) Paragraph (5)(a) applies to mixed contracts to which both paragraph (5)(a) and (b) could otherwise apply.

(8) Where the different parts of a given contract are objectively not separable, the contract may be awarded without applying this Part where it includes elements [F40covered by regulation 3(2)]; otherwise it may be awarded in accordance with the Defence and Security Regulations.

Textual Amendments

Public contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rulesU.K.

17.—(1) This Part does not apply to public contracts, or design contests, involving defence or security aspects which the contracting authority is obliged to award or organise in accordance with procurement procedures which are different from those laid down by this Part and are established by any of the following:—

(a)an international agreement or arrangement, concluded in conformity with the [F41Retained] Treaties, between [F42the United Kingdom] and one or more [F43other] countries (or subdivisions of such countries) and covering works, supplies or services intended for the joint implementation or exploitation of a project by its signatories;

(b)an international agreement or arrangement relating to the stationing of troops and concerning the undertakings of [F44the United Kingdom or another] country;

(c)an international organisation.

(2) This Part does not apply to public contracts, or design contests, involving defence or security aspects which the contracting authority awards [F45or organises] in accordance with procurement rules provided by an international organisation or international financing institution where the public contracts or design contests concerned are fully financed by that organisation or institution.

(3) In the case of public contracts, or design contests, co-financed for the most part by an international organisation or international financing institution, the parties shall agree on applicable procurement procedures.

Textual Amendments

SECTION 2U.K.General Rules

Principles of procurementU.K.

18.—(1) Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

(2) The design of the procurement shall not be made with the intention of excluding it from the scope of this Part or of artificially narrowing competition.

(3) For that purpose, competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.

Economic operatorsU.K.

19.—F46(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In the case of—

(a)public service contracts,

(b)public works contracts, and

(c)public supply contracts which cover in addition services or siting and installation operations,

legal persons may be required to indicate, in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.

Groups of economic operators

(3) Groups of economic operators, including temporary associations, may participate in procurement procedures and shall not be required by contracting authorities to have a specific legal form in order to submit a tender or a request to participate.

(4) Where necessary, contracting authorities may clarify in the procurement documents how groups of economic operators are to meet the requirements as to economic and financial standing or technical and professional ability referred to in regulation 58 provided that this is justified by objective reasons and is proportionate.

(5) Any conditions for the performance of a contract by such groups of economic operators which are different from those imposed on individual participants shall also be justified by objective reasons and shall be proportionate.

(6) Contracting authorities may require groups of economic operators to assume a specific legal form once they have been awarded the contract, to the extent that such a change is necessary for the satisfactory performance of the contract.

Textual Amendments

Reserved contractsU.K.

20.—(1) Contracting authorities may—

(a)reserve the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons, or

(b)provide for such contracts to be performed in the context of sheltered employment programmes,

provided that at least 30% of the employees of those workshops, economic operators or programmes are disabled or disadvantaged workers.

(2) In such cases, the call for competition shall make reference to [F47this regulation].

Textual Amendments

ConfidentialityU.K.

21.—(1) A contracting authority shall not disclose information which has been forwarded to it by an economic operator and designated by that economic operator as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.

(2) Paragraph (1) is without prejudice to—

(a)any other provision of this Part, including the obligations relating to the advertising of awarded contracts and the provision of information to candidates and tenderers set out in regulations 50 and 55 respectively;

(b)the Freedom of Information Act 2000 M4;

(c)any other requirement, or permission, for the disclosure of information that is applicable under the law of England and Wales or, as the case may be, Northern Ireland.

(3) Contracting authorities may impose on economic operators requirements aimed at protecting the confidential nature of information which the contracting authorities make available throughout the procurement procedure.

Marginal Citations

Rules applicable to communicationU.K.
General principles about the use of electronic and non-electronic means of communication

22.—(1) Subject to paragraphs (3), (5), (8) and (10), all communication and information exchange under this Part, including electronic submission, shall be performed using electronic means of communication in accordance with the requirements of this regulation.

(2) Subject to paragraph (13), the tools and devices to be used for communicating by electronic means, and their technical characteristics, shall be non-discriminatory, generally available and interoperable with the information and communication technology products in general use and shall not restrict economic operators' access to the procurement procedure.

(3) Contracting authorities are not obliged to require electronic means of communication in the submission process in the following situations:—

(a)due to the specialised nature of the procurement, the use of electronic means of communication would require specific tools, devices or file formats that are not generally available or supported by generally available applications;

(b)the applications supporting file formats that are suitable for the description of the tenders use file formats that cannot be handled by any other open or generally available applications or are under a proprietary licensing scheme and cannot be made available for downloading or remote use by the contracting authority;

(c)the use of electronic means of communication would require specialised office equipment that is not generally available to contracting authorities; or

(d)the procurement documents require the submission of physical or scale models which cannot be transmitted using electronic means.

(4) Where, in accordance with paragraph (3), electronic means of communication are not used, communication shall be carried out—

(a)by post or by other suitable carrier, or

(b)by a combination of post or other suitable carrier and electronic means.

(5) Contracting authorities are not obliged to require electronic means of communication in the submission process to the extent that the use of means of communication other than electronic means is necessary either—

(a)because of a breach of security of the electronic means of communication, or

(b)for the protection of information of a particularly sensitive nature requiring such a high level of protection that it cannot be properly ensured by using electronic tools and devices that are either generally available to economic operators or can be made available to them by alternative means of access within the meaning of paragraph (14).

(6) Where contracting authorities require, in accordance with paragraph (3), means of communication other than electronic means in the submission process, they shall indicate in the report referred to in regulation 84(1) the reasons for that requirement.

(7) Where applicable, contracting authorities shall indicate in that report the reasons why use of means of communication other than electronic means has been considered necessary in accordance with paragraph (5).

(8) Oral communication may be used in respect of communications other than those concerning the essential elements of a procurement procedure, provided that the content of the oral communication is documented to a sufficient degree.

(9) For that purpose, the essential elements of a procurement procedure include the procurement documents, requests to participate, confirmations of interest and tenders.

(10) In particular, oral communications with tenderers which could have a substantial impact on the content and assessment of the tenders shall be documented to a sufficient extent and by appropriate means, such as written or audio records or summaries of the main elements of the communication.

(11) In all communication, exchange and storage of information, contracting authorities shall ensure that the integrity of data and the confidentiality of tenders and requests to participate are preserved.

(12) Contracting authorities shall examine the content of tenders and requests to participate only after the time limit set for submitting them has expired.

Use of tools and devices not generally available

(13) Contracting authorities may, where necessary, require the use of tools and devices which are not generally available, provided that the contracting authorities offer suitable alternative means of access.

(14) Contracting authorities shall be deemed to offer suitable alternative means of access where they do any of the following:—

(a)offer unrestricted and full direct access free of charge by electronic means to the tools and devices concerned from the date of publication of the call for competition or from the date when the invitation to confirm interest is sent;

(b)ensure that tenderers having no access to the tools and devices concerned, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the tenderer concerned, may access the procurement procedure through the use of provisional tokens made available free of charge online; or

(c)support an alternative channel for electronic submission of tenders.

(15) For the purposes of paragraph (14)(a)—

(a)“publication of the call for competition” means whichever of the following is relevant (and where both are relevant, the earliest of them):—

(i)its publication [F48on the UK e-notification service] after being [F49submitted] in accordance with regulation 51;

(ii)its publication on a buyer profile in accordance with regulation 52; and

(b)the text of the call for competition notice or the invitation to confirm interest shall specify the internet address at which the tools and devices are accessible.

Technical etc requirements for tools and devices

(16) Tools and devices for the electronic receipt of tenders, requests to participate and, in design contests, plans and projects, must at least guarantee, through technical means and appropriate procedures, that—

(a)the exact time and date of the receipt of tenders, requests to participate and the submission of plans and projects can be determined precisely;

(b)it may be reasonably ensured that, before the time referred to in paragraph (12), no-one can have access to data transmitted under the requirements in this paragraph;

(c)only authorised persons may set or change the dates for opening data received;

(d)during the different stages of the procurement procedure, access to all data submitted, or to part of such data, must be possible only for authorised persons;

(e)only authorised persons may give access to data transmitted and only after the time referred to in paragraph (12);

(f)data received and opened in accordance with the requirements in sub-paragraphs (a) to (e) must remain accessible only to persons authorised to acquaint themselves with the data;

(g)it must be reasonably ensured that any infringement, or attempted infringement, of the access prohibitions or conditions referred to in sub-paragraphs (b) to (f) are clearly detectable.

(17) In addition to those requirements, the following rules apply to tools and devices for the electronic transmission and receipt of tenders and for the electronic receipt of requests to participate:—

(a)information on specifications for the electronic submission of tenders and requests to participate, including encryption and time-stamping, shall be available to interested parties;

(b)contracting authorities shall, acting in accordance with paragraphs (18) and (19), specify the level of security required for the electronic means of communication in the various stages of the specific procurement procedure, and that level shall be proportionate to the risks attached;

(c)where contracting authorities conclude that the level of risk, assessed in accordance with paragraphs (18) and (19), is such that advanced electronic signatures as defined by [F50Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market] as amended from time to time are required, contracting authorities shall [F51act in accordance with Article 27 of that Regulation (and for this purpose the submission of the tender or request is to be treated as the use of an online service to which that Article applies)].

Security requirements

(18) In deciding the level of security required at each stage of a procurement procedure, and in concluding whether the level of risk is such that advanced electronic signatures are required, contracting authorities shall assess the risks having regard to both the likelihood that particular risks will materialise and the potential adverse consequences if those risks materialise.

(19) In doing so, contracting authorities shall, in particular, have regard to such of the following matters as are relevant:—

(a)the risk to the proper functioning and integrity of the specific procurement process, including risks of breach of this Part;

(b)risks to national security;

(c)the risk of inadvertent or unauthorised disclosure of, or access to, any economic operator's confidential information;

(d)the risk of inadvertent or unauthorised disclosure of, or access to, information held by the contracting authority including information relating to the specific procurement;

(e)the risk that use of electronic communications could provide opportunity for malicious attacks on the electronic systems of, or data held by, the authority, any economic operator or any other person, including introduction of malware or denial of service attacks;

(f)other material risks relating to the procurement procedure in question;

(g)the need for consistency as between similar procurements performed by the same contracting authority;

(h)the need for proportionality between, on the one hand the expected benefits of any particular security requirements (in terms of eliminating or reducing any of the risks referred to in sub-paragraphs (a) to (g)), and on the other hand the costs, burdens and obligations which those requirements may impose on economic operators.

Electronic signatures

(20) Paragraph (21) applies where—

(a)a competent authority of the United Kingdom located in England and Wales or Northern Ireland, or

(b)another issuing entity so located,

signs and issues a document for use in a procurement procedure within the scope of [F52this Part].

(21) The competent authority or issuing entity may establish the required advanced signature format [F53in a format other than those referred to in Article 1 of Commission Implementing Decision (EU) 2015/1506 laying down specifications relating to formats of advanced electronic signatures and advanced seals to be recognised by public sector bodies] and, where it does so—

(a)it shall put in place the necessary measures to be able to process that format technically by including the information required for the purpose of processing the signature in the document concerned; and

(b)the document shall contain in the electronic signature or in the electronic document carrier information on existing validation possibilities that [F54comply with the requirements of Article 2(1)(b) of that Decision (or would comply with those requirements if the person seeking to validate the signature were a public sector body within the meaning of that Article)].

Textual Amendments

[F55Powers to amend regulation 22U.K.
Exceptions to obligation to require use of electronic means of communication

22A.—(1) The Minister for the Cabinet Office may make regulations amending paragraph (3) of regulation 22 by—

(a)omitting any of the situations described in that paragraph where the Minister considers that technological developments render it inappropriate for that situation to continue to be an exception from the obligation to require electronic means of communication, or

(b)inserting a description of a new situation where, exceptionally, the Minister considers that it must become a new exception because of technological developments.

(2) Where the Minister considers that technological developments render it inappropriate for there to continue to be any exceptions from the obligation to require electronic means of communication, the Minister may make regulations omitting paragraph (3) from regulation 22.

(3) Where regulations have been made under paragraph (2) and, exceptionally, the Minister considers that a new exception must be provided for because of technological developments, the Minister may make regulations re-inserting paragraph (3) into regulation 22 in terms which give effect to that new exception (and the powers conferred by paragraphs (1) and (2) of this regulation may subsequently be exercised in relation to paragraph (3) as re-inserted).

Requirements relating to tools and devices for electronic receipt of documents

(4) The Minister for the Cabinet Office may make regulations amending the technical details and characteristics set out in regulation 22(16) if the Minister considers it appropriate to do so to take account of technical developments.]

Textual Amendments

NomenclaturesU.K.

23.  Any references to nomenclatures in the context of public procurement shall be made using the CPV.

Conflicts of interestU.K.

24.—(1) Contracting authorities shall take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.

(2) For the purposes of paragraph (1), the concept of conflicts of interest shall at least cover any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure.

(3) In paragraph (2)—

“relevant staff members” means staff members of the contracting authority, or of a procurement service provider acting on behalf of the contracting authority, who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure; and

“procurement service provider” means a public or private body which offers ancillary purchasing activities on the market.

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