The Public Contracts Regulations 2015

SUB-SECTION 1 U.K. Subject-matter and mixed procurement

Subject-matter and scope of Part 2 U.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

F1 Reg. 3(2)-(6) substituted for reg. 3(2) (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 6(3) (with Sch. paras. 3-5)

Mixed procurement U.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 [F5 regulation 3(2)] or the Defence and Security Regulations, regulation 16 applies instead of [F6 paragraphs (1) to (2A)].

Textual Amendments

F2 Word in reg. 4(2)(a)(ii) omitted (18.4.2016) by virtue of The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 4(2)(a) (with reg. 5)

F3 Reg. 4(2)(a)(iv) and word inserted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 4(2)(b) (with reg. 5)

F4 Reg. 4(2A) inserted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 4(3) (with reg. 5)

F5 Words in reg. 4(3) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 6(4) (with Sch. paras. 3-5)

F6 Words in reg. 4(3) substituted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 4(4) (with reg. 5)