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SCOTTISH STATUTORY INSTRUMENTS


2006 No. 1

PUBLIC PROCUREMENT

The Public Contracts (Scotland) Regulations 2006

  Made 4th January 2006 
  Laid before the Scottish Parliament 5th January 2006 
  Coming into force 31st January 2006 


ARRANGEMENT OF REGULATIONS


PART 1

GENERAL
1. Citation commencement and extent
2. Interpretation
3. Contracting authorities
4. Economic operators
5. Application
6. General exclusions
7. Reserved contracts
8. Thresholds

PART 2

TECHNICAL SPECIFICATIONS
9. Technical specifications in the contract documents
10. Variants

PART 3

PROCEDURES LEADING TO THE AWARD OF A PUBLIC CONTRACT
11. Prior information notices
12. Selection of contract award procedures
13. Use of the negotiated procedure with prior publication of a contract notice
14. Use of the negotiated procedure without prior publication of a contract notice
15. The open procedure
16. The restricted procedure
17. The negotiated procedure
18. The competitive dialogue procedure
19. Framework agreements
20. Dynamic purchasing systems
21. Electronic auctions
22. Central purchasing bodies

PART 4

SELECTION OF ECONOMIC OPERATORS
23. Criteria for the rejection of economic operators
24. Information as to economic and financial standing
25. Information as to technical or professional ability
26. Supplementary information
27. Official lists of approved economic operators
28. Consortia
29. Corporations

PART 5

THE AWARD OF A PUBLIC CONTRACT
30. Criteria for the award of a public contract
31. Contract award notice
32. Information about contract award procedures

PART 6

SPECIALISED CONTRACTS
33. Design contests
34. Subsidised public works contracts and public services contracts
35. Subsidised housing scheme works contracts
36. Public works concession contracts
37. Sub contracting the work or works to be carried out under a public works concession contract

PART 7

MATTERS RELATING TO A PUBLIC CONTRACT
38. Obligations relating to taxes, environmental protection, employment protection and working conditions
39. Conditions for performance of contracts

PART 8

MISCELLANEOUS
40. Statistical and other reports
41. Provision of reports
42. Publication of notices
43. Confidentiality of information
44. Means of communication
45. Sub-contracting
46. Public service bodies

PART 9

APPLICATIONS TO THE COURT
47. Enforcement of obligations

PART 10

REPEALS, REVOCATIONS, SAVINGS, TRANSITIONAL PROVISIONS
48. Repeals and revocations
49. Savings and transitional provisions

  SCHEDULE 1 — GPA ANNEX 1 CONTRACTING AUTHORITIES

  SCHEDULE 2 — ACTIVITIES CONSTITUTING WORKS

  SCHEDULE 3 — CATEGORIES OF SERVICES

  SCHEDULE 4 — EXTENSION TO NON-MEMBER STATES

  SCHEDULE 5 — GOODS FOR THE PURPOSES OF THE THRESHOLDS

  SCHEDULE 6 — PROFESSIONAL OR TRADE REGISTERS

  SCHEDULE 7 — REPEALS AND REVOCATIONS

The Scottish Ministers in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 [
1], hereby make the following Regulations:



PART 1

GENERAL

Citation commencement and extent
     1. —(1) These Regulations may be cited as the Public Contracts (Scotland) Regulations 2006 and come into force on 31st January 2006.

    (2) These Regulations extend to Scotland only.

Interpretation
    
2. —(1) In these Regulations–

but a contract for both goods and services shall be considered to be a public services contract if the value attributable to those services exceeds that of the goods covered by the contract and a contract for services which includes activities specified in Schedule 2 that are only incidental to the principal object of the contract shall be considered to be a public services contract.

and for any siting or installation of those goods, but where under such a contract services are also to be provided, the contract shall only be a public supply contract where the value of the consideration attributable to the goods and any siting or installation of the goods is equal to or greater than the value attributable to the services;

    (2) Subject to paragraph (3), in these Regulations–

    (3) Where services specified in both Parts A and B of Schedule 3 are to be provided under a single contract, then the contract shall be treated as–

    (4) Where a thing is required to be done under these Regulations–

Contracting authorities
     3. —(1) For the purposes of these Regulations each of the following is a contracting authority–

    (2) Where an entity specified in paragraph (1) does not have the capacity to enter into a contract, the contracting authority in relation to that entity is a person whose function it is to enter into contracts for that entity.

Economic operators
     4. —(1) In these Regulations, an "economic operator" means a contractor, a supplier or a services provider.

    (2) When these Regulations apply, a contracting authority shall not treat a person who is not a national of a relevant State and established in a relevant State more favourably than one who is.

    (3) A contracting authority shall–

    (4) In these Regulations a relevant State is a member State or a State listed in column 1 of Schedule 4; the agreements with the European Union by which the provisions in relation to public procurement are extended to those States are specified in column 2 of that Schedule and the statutory provision designating them as European Treaties under section 1(3) of the European Communities Act 1972[24] are specified in column 3 to that Schedule.

Application
     5. —(1) Subject to paragraph (3) and regulation 8(21), these Regulations apply whenever a contracting authority seeks offers in relation to a proposed public supply contract, public works contract, Part A services contract, framework agreement or dynamic purchasing system other than a contract, framework agreement or dynamic purchasing system excluded from the application of these Regulations by regulation 6 or 8.

    (2) Whenever a contracting authority seeks offers in relation to a proposed Part B services contract other than one excluded by virtue of regulation 6 or 8–

    (3) In these Regulations, a reference to a public works contract does not include a public works concession contract except in–

General exclusions
    
6. —(1) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system where the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts (Scotland) Regulations 2006[25] and–

    (2) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system–

Reserved contracts
     7. —(1) In this regulation–

    (2) A contracting authority may reserve the right to participate in a public contract award procedure, framework agreement or dynamic purchasing system to economic operators which operate supported businesses, supported employment programme or supported factories.

    (3) Where a contracting authority has reserved the right to participate in a public contract, framework agreement or dynamic purchasing system, in accordance with paragraph (2), it shall follow the contract award procedures set out in these Regulations.

    (4) When seeking offers in relation to a public contract, a framework agreement or dynamic purchasing system, a contracting authority shall specify in the contract notice if it is using the approach referred to in paragraph (2).

Thresholds
    
8. —(1) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system, where the estimated value of the contract (net of value added tax) at the relevant time is less than the relevant threshold.

    (2) For the purposes of paragraph (1), the relevant threshold is 5,278,000 euro in the case of a public works contract and a public works contract subsidised as referred to in regulation 34.

    (3) Subject to paragraph (4), the relevant threshold for the purposes of paragraph (1) in the case of a Part A public services contract is–

    (4) For the purposes of paragraph (1), the relevant threshold is 211,000 euro in the case of a public services contract which is–

    (5) For the purposes of paragraph (1), the relevant threshold in the case of a public supply contract is–

    (6) The value in pounds sterling of any amount expressed in these Regulations in euro shall be calculated by reference to the rate for the time being applying for the purposes of the Public Sector Directive as published from time to time in the Official Journal.

    (7) For the purposes of paragraph (1), the estimated value of a public contract shall be the value of the total consideration payable, net of value added tax (calculated in accordance with this regulation), which the contracting authority expects to be payable under the contract.

    (8) In determining the value of the total consideration which the contracting authority expects to be payable under a public contract it shall, where appropriate, take account of–

    (9) For the purposes of paragraph (1), the estimated value of a public supply contract for the hire of goods is–

    (10) For the purposes of paragraph (1), the estimated value of a public services contract which does not indicate a total price is–

    (11) Subject to paragraphs (12) and (15), where a contracting authority has a single requirement for goods or services or for the carrying out of a work or works and a number of contracts have been entered into or are to be entered into to fulfil that requirement, the estimated value for the purposes of paragraph (1) of each of those contracts is the aggregate of the value of the consideration which the contracting authority expects to be payable under each of those contracts.

    (12) Paragraph (11) does not apply to any contract (unless the contracting authority chooses to apply that paragraph to a contract) if the contract has an estimated value of less than–

and the aggregate value of that contract and any other such contract is less than 20% of the aggregate value of the consideration which the contracting authority has given or expects to be payable under all the contracts entered into or to be entered into to fulfil the single requirement for goods, services or for the carrying out of work or works.

    (13) Subject to paragraph (15), where a contracting authority has a requirement over a period for goods or services and for that purpose enters into–

the estimated value for the purposes of paragraph (1) of the contract shall be the amount calculated under paragraph (14).

    (14) The contracting authority shall calculate the amount referred to in paragraph (13) either–

    (15) Notwithstanding paragraphs (11) and (13), in relation to a public supply contract or a public services contract, when the goods or services are required for the sole purpose of a discrete operational unit within the organisation of a contracting authority and–

the valuation methods described in paragraphs (11) and (14) shall be adapted by aggregating only the value of the consideration which was payable or the contracting authority expects to be payable, as the case may be, under a public supply contract or a public services contract which was or is required for the sole purpose of that unit.

    (16) Where a contracting authority intends to provide any goods to the economic operator awarded a public works contract for the purpose of carrying out that contract, the value of the consideration of the public works contract for the purposes of paragraphs (7) and (11) shall be taken to include the estimated value at the relevant time of those goods.

    (17) The relevant threshold for the purposes of paragraph (1) for a framework agreement or dynamic purchasing system is the threshold for–

    (18) The estimated value of a framework agreement or dynamic purchasing system is the aggregate of the values estimated in accordance with this regulation of all the contracts which could be entered into under the framework agreement or dynamic purchasing system.

    (19) A contracting authority shall not enter into separate contracts nor exercise a choice under a valuation method with the intention of avoiding the application of these Regulations to those contracts.

    (20) The relevant time for the purposes of paragraphs (1), (14) and (16) means the date on which a contract notice would be sent to the Official Journal if the requirement to send such a notice applied to that contract in accordance with these Regulations.

    (21) When a contracting authority proposes to award a public contract which has an estimated value for the purpose of paragraph (1) which is below the relevant threshold, or where a proposed public contract is otherwise exempt from the requirement for prior publication of a contract notice, the contracting authority shall, if required by its general Community obligations, for the benefit of any potential economic operator, ensure a degree of advertising which is sufficient to enable open competition and meet the requirements of the principles of equal treatment, non discrimination and transparency.



PART 2

TECHNICAL SPECIFICATIONS

Technical specifications in the contract documents
    
9. —(1) In this regulation–

    (2) Where a contracting authority wishes to lay down technical specifications which must be met by–

it shall specify those technical specifications in the contract documents.

    (3) When laying down technical specifications in accordance with paragraph (2), a contracting authority shall, wherever possible, take into account accessibility criteria for disabled persons or the suitability of the design for all users.

    (4) A contracting authority shall ensure that technical specifications afford equal access to economic operators and do not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

    (5) Subject to technical requirements which are mandatory in the United Kingdom and to the extent that those requirements are compatible with Community obligations, a contracting authority shall define the technical specifications required for a contract in accordance with paragraph (6), (7), (8) or (9).

    (6) A contracting authority may define the technical specifications referred to in paragraph (5)–

    (7) A contracting authority may define the technical specifications referred to in paragraph (5) in terms of performance or functional requirements (which may include environmental characteristics) provided that the requirements are sufficiently precise to allow an economic operator to determine the subject of the contract and a contracting authority to award the contract.

    (8) A contracting authority may define the technical specifications referred to in paragraph (5) by defining performance and functional requirements as referred to in paragraph (7) with reference to the technical specifications referred to in paragraph (6) as a means of presuming conformity with such performance or functional requirements.

    (9) A contracting authority may define the technical specifications referred to in paragraph (5) by reference to technical specifications referred to in paragraph (6) for certain characteristics and by reference to performance or functional requirements referred to in paragraph (7) for other characteristics.

    (10) Where a contracting authority defines technical specifications as referred to in paragraph (6), it shall not reject an offer on the basis that the materials, goods or services offered do not comply with those technical specifications if an economic operator proves to the satisfaction of the contracting authority by any appropriate means that the one or more solutions that economic operator proposes in its tender satisfy the requirements of those technical specifications in an equivalent manner.

    (11) Where a contracting authority defines technical specifications in terms of performance or functional requirements as referred to in paragraph (7), it shall not reject an offer for materials, goods, services, work or works which complies with–

if those technical specifications address the performance or functional requirements referred to by the contracting authority and the economic operator proves in its tender to the satisfaction of the contracting authority by any appropriate means that the work, works, materials, goods or services meet the performance or functional requirements of the contracting authority.

    (12) Where a contracting authority lays down environmental characteristics in terms of performance or functional requirements as referred to in paragraph (7), it may use the detailed technical specifications, or if necessary, parts thereof, as defined by European, national or multi national eco-labels or by any other eco-label, provided that–

    (13) A contracting authority may indicate in the contract documents that the materials, goods or services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents and shall accept any other appropriate means of proof that the materials, goods or services comply with those technical specifications.

    (14) The term "appropriate means" referred to in paragraphs (10), (11) and (13) includes a technical dossier of a manufacturer or a test report from a recognised body.

    (15) A contracting authority shall accept certificates from recognised bodies established in other member States when considering whether a tender for a contract conforms with the technical specifications laid down by the contracting authority in accordance with paragraph (2).

    (16) Subject to paragraph (17), a contracting authority shall not lay down technical specifications in the contract documents which refer to–

which have the effect of favouring or eliminating particular economic operators.

    (17) Notwithstanding paragraph (16), exceptionally, a contracting authority may incorporate the references referred to in paragraph (16) into the technical specifications in the contract documents provided that the references are accompanied by the words "or equivalent", where–

Variants
    
10. —(1) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous in accordance with regulation 30(1)(a), it shall indicate in the contract notice whether or not it authorises economic operators to submit offers which contain variants on the requirements specified in the contract documents and a contracting authority shall not accept an offer which contains a variant without that indication.

    (2) Where a contracting authority authorises a variant in accordance with paragraph (1) it shall state in the contract documents the minimum requirements to be met by the variant and any specific requirements for the presentation of an offer which contains variants.

    (3) A contracting authority shall only consider variants which meet its minimum requirements as stated in the contract documents in accordance with paragraph (2).

    (4) A contracting authority shall not reject an offer which contains variants on the requirements specified in the contract documents on the ground that–



PART 3

PROCEDURES LEADING TO THE AWARD OF A PUBLIC CONTRACT

Prior information notices
    
11. —(1) Subject to paragraphs (4), (5) and (6), a contracting authority shall send a notice in the form of the prior information notice in Annex I to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified to the Commission or publish it on that contracting authority's buyer profile as soon as possible after–

    (2) The notice referred to in paragraph (1) shall contain information in respect of–

and that notice shall be sub divided to give that information separately for each product area of goods by reference to the CPV nomenclature of each category of works or services as specified in Schedules 2 and 3.

    (3) Where a contracting authority publishes a notice on its buyer profile in accordance with paragraph (1), it shall also send a notice in the form of a notice on a buyer profile in Annex VIII to Commission Regulation (EC) No. 1564/2005 informing the Commission by electronic means in accordance with the format and procedure for sending notices specified in paragraph (3) of Annex VIII to the Public Sector Directive of that publication.

    (4) The obligation to publish a prior information notice in accordance with paragraph (1) applies only to proposed public contracts or framework agreements which are not excluded from the application of these Regulations by regulation 6 or 8 and where, at the date of despatch of the notice–

    (5) The obligation to publish a prior information notice applies only where the contracting authority takes the option of shortening the time limits for the receipt of tenders in accordance with regulation 15(7) or 16(18).

    (6) This regulation does not apply to a proposed public contract where the procedure for the award of the contract is the negotiated procedure without the prior publication of a contract notice in accordance with regulation 14.

Selection of contract award procedures
    
12. —(1) Subject to paragraph (2), for the purpose of seeking offers in relation to a proposed public contract, a contracting authority shall use–

in all circumstances, except where it may use–

    (2) Paragraph (1) shall not apply in the case of a subsidised housing scheme works contract which is subject to regulation 35.

Use of the negotiated procedure with prior publication of a contract notice
    
13. A contracting authority may use the negotiated procedure with the prior publication of a contract notice in accordance with regulation 17(3) in the following circumstances–

Use of the negotiated procedure without prior publication of a contract notice
    
14. —(1) A contracting authority may use the negotiated procedure without the prior publication of a contract notice in accordance with regulation 17(3) in the following circumstances–

    (2) A contracting authority using the negotiated procedure in accordance with paragraph (1)(a)(ii) shall, if the Commission requests it, submit a report recording the fact that it has used that procedure to the Scottish Ministers for onward transmission to the Commission.

    (3) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(b)(ii) if the term of the proposed contract, or the term of that contract and of any other contract entered into for the same purpose, is more than three years, unless there are reasons why it is unavoidable that this period should be exceeded.

    (4) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(d)(i), where the aggregate value of the consideration to be given under contracts for the additional work, works or services exceeds 50 per cent of the value of the consideration payable under the original contract.

    (5) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(d)(ii) unless–

The open procedure
    
15. —(1) A contracting authority using the open procedure shall comply with this regulation.

    (2) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No. 1564/2005, inviting tenders and containing the information therein specified.

    (3) Subject to paragraphs (5), (6) and (7), the date which the contracting authority fixes as the last date for the receipt by it of tenders made in response to the contract notice shall be specified in the contract notice and shall be not less than 52 days from the date of despatch of the notice.

    (4) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt by it of tenders.

    (5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive[
26], the time limits referred to in paragraphs (3) and (7) may be reduced by 7 days.

    (6) The contracting authority may reduce the time limits for the receipt by it of tenders by 5 days provided that–

    (7) Where–

the contracting authority may substitute for the period of not less than 52 days specified in paragraph (3), a shorter period of generally not less than 36 days and in any event not less than 22 days.

    (8) Where the contracting authority does not offer unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (6), the contracting authority shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator, provided that the documents are requested in good time before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (9) The contracting authority shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator, provided that the request is received in sufficient time to enable the contracting authority to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (10) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

    (11) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude a tender from the evaluation of offers made in accordance with regulation 30 only if the economic operator–

    (12) The contracting authority may require an economic operator to satisfy minimum levels of–

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (13) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (6).

The restricted procedure
     16. —(1) A contracting authority using the restricted procedure shall comply with this regulation.

    (2) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No. 1564/2005, inviting requests to be selected to tender and containing the information therein specified.

    (3) Subject to paragraph (5), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to tender shall be specified in the contract notice and shall be not less than 37 days from the date of the despatch of the notice.

    (4) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt of requests to be selected to tender and for receipt by it of tenders.

    (5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (3) may be reduced by 7 days.

    (6) Where compliance with the minimum time limit of 37 days referred to in paragraph (3) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit–

    (7) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to tender only if the economic operator–

    (8) The contracting authority shall make the selection of the economic operators to be invited to tender in accordance with regulations 23, 24, 25 and 26 and shall award the contract in accordance with regulation 30.

    (9) Where there is a sufficient number of economic operators suitable to be selected to be invited to tender, the contracting authority may limit the number of economic operators which it intends to invite to tender provided that the contract notice specifies–

    (10) The contracting authority shall ensure that the number of economic operators invited to tender is–

    (11) Subject to paragraph (10)(a), where–

the contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

    (12) The contracting authority may require an economic operator to satisfy minimum levels of–

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (13) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to tender for the contract and the invitation shall–

    (14) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

    (15) The contracting authority shall include the following information in the invitation–

    (16) Subject to paragraphs (18) and (19), the date which the contracting authority fixes as the last date for the receipt by it of tenders and which shall be specified in the invitation to tender in accordance with paragraph (15)(a), shall be not less than 40 days from the date of the despatch of the invitation.

    (17) Where compliance with the minimum time limit of 40 days referred to in paragraph (16) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit, a time limit of not less than 10 days from the date of despatch of the invitation.

    (18) Where–

the contracting authority may substitute for the period of not less than 40 days in paragraph (16), a period of generally not less than 36 days and in any event not less than 22 days.

    (19) The contracting authority may reduce the time limits for the receipt by it of tenders referred to in paragraphs (16) and (18) by 5 days provided that–

    (20) The contracting authority or entity referred to in paragraph (13)(c) shall supply such further information relating to the contract documents as may be reasonably requested by an economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.

    (21) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

    (22) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (19).

The negotiated procedure
    
17. —(1) Subject to paragraph (2), a contracting authority using the negotiated procedure shall comply with this regulation.

    (2) A contracting authority using the negotiated procedure in accordance with regulation 14 need only comply with paragraphs (9) and (10) of this regulation.

    (3) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No. 1564/2005, inviting requests to be selected to negotiate and containing the information therein specified.

    (4) The contracting authority shall indicate whether the negotiated procedure will take place in successive stages in accordance with paragraph (22)–

    (5) Subject to paragraphs (7) and (8), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to negotiate shall be specified in the contract notice and shall be not less than 37 days from the date of despatch of the notice.

    (6) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract when fixing time limits for the receipt of requests to be selected to negotiate the contract.

    (7) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (5) may be reduced by 7 days.

    (8) Where compliance with the minimum time limit of 37 days referred to in paragraph (5) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit–

    (9) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to negotiate the contract only if the economic operator–

    (10) The contracting authority shall make the selection of the economic operators to be invited to negotiate in accordance with regulations 23, 24, 25 and 26 and shall award the contract in accordance with regulation 30.

    (11) Where there is a sufficient number of economic operators suitable to be selected to negotiate, the contracting authority may limit the number of economic operators which it intends to invite to negotiate the contract provided that the contract notice specifies–

    (12) The contracting authority shall ensure that the number of economic operators invited to negotiate is–

    (13) Subject to paragraph (12)(a), where–

the contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

    (14) The contracting authority may require an economic operator to satisfy minimum levels of–

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (15) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to negotiate and the invitation shall–

    (16) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

    (17) The contracting authority shall include in the invitation–

    (18) The contracting authority or entity referred to in paragraph (15)(c) shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it–

    (19) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

    (20) Where the contracting authority needs to identify the best tender in order to award the public contract in accordance with regulation 30(1), that contracting authority shall negotiate with economic operators which have submitted tenders with the aim of adapting the tenders to the requirements specified in the contract documents.

    (21) During any negotiations which take place in accordance with this regulation, a contracting authority shall ensure equal treatment among all economic operators and in particular, shall not provide information in a discriminatory manner which may give some economic operators an advantage over other economic operators.

    (22) The contracting authority may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria in the contract documents.

    (23) Where the contracting authority provides for the negotiated procedure to take place in successive stages in accordance with paragraph (22), it shall ensure that the number of economic operators to be invited to negotiate the contract at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of economic operators to do so.

The competitive dialogue procedure
    
18. —(1) In this regulation–

    (2) Where a contracting authority wishes to award a particularly complex contract and considers that the use of the open or restricted procedure will not allow the award of that contract, the contracting authority may use the competitive dialogue procedure.

    (3) A contracting authority using the competitive dialogue procedure shall comply with the following paragraphs of this regulation.

    (4) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal, as soon as possible after forming the intention a notice, in the form of a contract notice in Annex II to Commission Regulation (EC) No. 1564/2005, inviting requests to participate and containing the information therein specified.

    (5) The contracting authority shall specify its needs and requirements in the contract notice and shall define those needs and requirements–

    (6) The contracting authority shall indicate that it may provide for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (22)–

    (7) Subject to paragraph (9), the date which the contracting authority shall fix as the last date for the receipt by it of requests to be selected to participate shall be specified in the contract notice and shall be not less than 37 days from the date of the despatch of the notice.

    (8) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract when fixing time limits for the receipt by it of requests to be selected to participate in the dialogue.

    (9) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (7) may be reduced by 7 days.

    (10) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to participate in the dialogue only if the economic operator–

    (11) The contracting authority shall make the selection of the economic operators to be invited to participate in the dialogue in accordance with regulations 23, 24, 25 and 26.

    (12) Where there is a sufficient number of economic operators suitable to be selected to participate in the dialogue, the contracting authority may limit the number of economic operators which it intends to invite to participate in the dialogue provided that the contract notice specifies–

    (13) The contracting authority shall ensure that the number of economic operators invited to participate in the dialogue is–

    (14) Subject to paragraph (13)(a), where–

that contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

    (15) The contracting authority may require an economic operator to satisfy minimum levels of–

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (16) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to participate in the dialogue and the invitation shall–

    (17) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

    (18) The contracting authority shall include the following information in the invitation–

    (19) The contracting authority or entity referred to in paragraph (16)(c) shall supply such further information to the economic operator relating to the contract documents or the descriptive document as may reasonably be requested by that economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 6 days before the date specified in the invitation to tender as the final date of the receipt by it of tenders.

    (20) The contracting authority shall open with the participants selected in accordance with regulations 23, 24, 25 and 26 a dialogue the aim of which shall be to identify and define the means best suited to satisfying its needs.

    (21) During the competitive dialogue procedure, a contracting authority–

    (22) The contracting authority may provide for the competitive dialogue procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria in the contract notice or in the descriptive document.

    (23) Where the contracting authority provides for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (22), it shall ensure that the number of economic operators to be invited to participate at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of economic operators to do so.

    (24) The contracting authority may continue the competitive dialogue procedure until it can identify one or more solutions, if necessary after comparing them, capable of meeting its needs.

    (25) Where the contracting authority declares that the dialogue is concluded, it shall–

    (26) The contracting authority may request a participant to clarify, specify or fine-tune a tender referred to in paragraph (25)(b), but such clarification, specification, fine-tuning or additional information shall not involve changes to the basic features of the tender or the call for tender when those variations are likely to distort competition or have a discriminatory effect.

    (27) The contracting authority shall assess the tenders received on the basis of the award criteria specified in the contract notice or descriptive document and shall award the contract to the participant which submits the most economically advantageous tender in accordance with regulation 30(1)(a).

    (28) The contracting authority may request the participant identified as having submitted the most economically advantageous tender to clarify aspects of that tender or confirm commitments contained in the tender provided that this does not have the effect of modifying substantial aspects of the tender or of the call for tender and does not risk distorting competition or causing discrimination.

    (29) The contracting authority may specify that payments may be made to a participant in respect of the participant's expenses incurred in participating in the competitive dialogue procedure.

Framework agreements
    
19. —(1) A contracting authority which intends to conclude a framework agreement shall comply with this regulation.

    (2) Where the contracting authority intends to conclude a framework agreement, it shall–

    (3) Where the contracting authority awards a specific contract based on a framework agreement, it shall–

    (4) When awarding a specific contract on the basis of a framework agreement neither the contracting authority nor the economic operator shall include in that contract terms that are substantially amended from the terms laid down in that framework agreement.

    (5) Where the contracting authority concludes a framework agreement with one economic operator–

    (6) Where the contracting authority concludes a framework agreement with more than one economic operator, the minimum number of economic operators shall be 3, insofar as there is a sufficient number of–

    (7) Where the contracting authority concludes a framework agreement with more than one economic operator, a specific contract may be awarded–

    (8) Where the contracting authority is following the procedure set out in paragraph (7)(b), it shall re-open the competition on the basis of the same or, if necessary, more precisely formulated terms, and where appropriate other terms referred to in the contract documents based on the framework agreement.

    (9) Where the contracting authority is following the procedure set out in paragraph (7)(b), for each specific contract to be awarded it shall–

    (10) The contracting authority shall not conclude a framework agreement for a period which exceeds 4 years except in exceptional circumstances, in particular, circumstances relating to the subject of the framework agreement.

    (11) In this regulation, a "specific contract" means a contract based on the terms of a framework agreement.

    (12) The contracting authority shall not use a framework agreement improperly or in such a way as to prevent, restrict or distort competition.

Dynamic purchasing systems
    
20. —(1) A contracting authority using a dynamic purchasing system shall comply with this regulation.

    (2) The contracting authority which seeks to establish a dynamic purchasing system shall comply with the requirements of regulation 44(2) to (7) and shall use only electronic means to–

    (3) The contracting authority shall use the open procedure in accordance with regulation 15 to establish a dynamic purchasing system up to the beginning of the procedure for the award of contracts under the system set out in this regulation.

    (4) When establishing a dynamic purchasing system, the contracting authority shall–

    (5) When establishing a dynamic purchasing system a contracting authority may also produce additional documents relating to the operation of the system.

    (6) Where the contracting authority establishes a dynamic purchasing system it shall–

    (7) Throughout the duration of the dynamic purchasing system, the contracting authority shall–

    (8) The contracting authority shall admit to the dynamic purchasing system each economic operator which satisfies the selection criteria and has submitted an indicative tender which complies with the specification and any additional documents produced by the contracting authority in accordance with paragraph (5) when establishing the system.

    (9) The contracting authority shall as soon as possible notify an economic operator of its admission to a dynamic purchasing system or of the rejection of its indicative tender.

    (10) An economic operator which is admitted to a dynamic purchasing system may improve its indicative tender at any time provided that the improved tender complies with the specification described in paragraph (4)(b).

    (11) Where the contracting authority proposes to award a contract under a dynamic purchasing system, it shall send to the Official Journal as soon as possible after forming the intention a notice, in the form of a simplified contract notice on a dynamic purchasing system in Annex IX to Commission Regulation (EC) No. 1564/2005, inviting economic operators to submit an indicative tender in accordance with paragraph (7)(a)(i) not less than 15 days from the date of the despatch of the simplified contract notice.

    (12) The indicative tenders received within the period specified in paragraph (11) shall be evaluated by a contracting authority for admittance to the dynamic purchasing system before it proceeds with the issue of invitations to submit tenders in relation to any contract to be awarded under the dynamic purchasing system to an economic operator admitted to the system.

    (13) The contracting authority shall invite all economic operators admitted to the dynamic purchasing system to submit a tender for each contract within a time limit specified by the contracting authority.

    (14) For each contract to be awarded under the dynamic purchasing system, the contracting authority–

    (15) The contracting authority may not charge any economic operator seeking admission to a dynamic purchasing system or which has been admitted to such a system in relation to any aspect of that system.

    (16) A dynamic purchasing system established by a contracting authority may not be operated for more than 4 years, unless there are exceptional circumstances.

    (17) The contracting authority shall not use a dynamic purchasing system improperly or in such a way as to prevent, restrict or distort competition.

Electronic auctions
    
21. —(1) A contracting authority which holds an electronic auction shall comply with this regulation.

    (2) Subject to paragraph (3), the contracting authority may hold an electronic auction when using–

    (3) The contracting authority shall not hold an electronic auction to precede the award of a public services contract or a public works contract having as its subject matter intellectual performance, such as the design of works.

    (4) The contracting authority may only hold an electronic auction to precede the award of a contract when the contract specification can be established with precision.

    (5) The contracting authority shall base an electronic auction on–

    (6) When the contracting authority intends to hold an electronic auction it shall state this in the contract notice.

    (7) A contract specification prepared by the contracting authority in relation to a contract the award of which is to be preceded by an electronic auction shall include–

    (8) Before proceeding with an electronic auction, the contracting authority shall–

    (9) Where the contracting authority is to award a contract on the basis of the offer which is the most economically advantageous to it in accordance with regulation 30(1)(a), each invitation referred to in paragraph (8)(b) shall include the outcome of the evaluation of the tender submitted by the economic operator to which the invitation is sent, carried out in accordance with the weighting described in regulation 30(3).

    (10) The contracting authority shall include in the invitation referred to in paragraph (8)(b)–

    (11) In relation to the formula referred to in paragraph (10)(d), any ranges used in the weighting of criteria shall be set at a specified value before the invitation is sent to economic operators.

    (12) At least two working days must elapse between the date on which the invitation referred to in paragraph (8)(b) is sent and the date of the electronic auction.

    (13) During each phase of an electronic auction, the contracting authority–

    (14) During any phase of an electronic auction, the contracting authority shall not disclose the identity of any economic operator participating in the auction.

    (15) The contracting authority shall close an electronic auction–

    (16) Where a contracting authority intends to close an electronic auction–

    (17) After closing an electronic auction the contracting authority shall award the contract in accordance with regulation 30 on the basis of the results of the electronic auction.

    (18) The contracting authority shall not use an electronic auction improperly or in such a way as to prevent, restrict or distort competition or to change the subject matter of the contract as referred to in the contract notice and defined in the specification.

    (19) The references to values in paragraph (5)(b), (8)(b), (10)(d), (13)(b) and (15)(b) shall be interpreted as including price.

Central purchasing bodies
    
22. —(1) A contracting authority may purchase work, works, goods or services from or through a central purchasing body.

    (2) Where a contracting authority makes purchases in accordance with paragraph (1), it shall be deemed to have complied with these Regulations to the extent that the central purchasing body has complied with them.



PART 4

SELECTION OF ECONOMIC OPERATORS

Criteria for the rejection of economic operators
    
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–

    (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–

    (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 grounds specified in paragraphs (1) and (4)(a), (b), (c), (d), (f) or (g) if that economic operator provides to the contracting authority–

    (6) In this regulation, "relevant" in relation to a judicial, administrative or competent authority, notary public or commissioner for oaths means an authority designated by, or a notary public or commissioner for oaths in the relevant State in which the economic operator is established.

    (7) An economic operator established in the United Kingdom or Ireland shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator–

    (8) In relation to procedures for the award of a public services contract, an economic operator established in Greece shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j)–

    (9) An economic operator established in a relevant State, other than the United Kingdom or Ireland, which either has an equivalent professional or trade register which is not listed in Schedule 6 or which does not have an equivalent professional or trade register shall be treated as registered on a professional or trade register for the purposes of paragraph (4)(j) on production of either a certificate that the economic operator is registered on the equivalent professional or trade register or where no such register exists, a declaration on oath, or in a relevant State which does not provide for a declaration on oath a solemn declaration, made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths, that the economic operator exercises the particular profession or trade.

Information as to economic and financial standing
     24. —(1) Subject to regulation 27 and 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 contracting authority may take into account any of the following information–

    (2) Where the information specified in paragraph (1) 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 paragraphs (1) and (2) shall specify in the contract notice or in the invitation to tender the information which the economic operator must provide.

    (4) Where appropriate–

    (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.

Information as to technical or professional ability
    
25. —(1) Subject to regulation 27, in assessing whether an economic operator meets any minimum standards of technical or professional ability required of economic operators by the contracting authority–

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–

    (3) Where appropriate–

    (4) The evidence referred to in paragraph (2)(h) is–

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

Supplementary information
     26. Subject to regulation 27, the contracting authority may require an economic operator to provide information supplementing the information provided in accordance with regulation 23, 24 or 25 or to clarify that information, provided that the information so required relates to the matters specified in regulation 23, 24 or 25.

Official lists of approved economic operators
    
27. —(1) This regulation applies where an economic operator is registered in accordance with paragraph (2) or certified in accordance with paragraph (3).

    (2) An economic operator is registered in accordance with this regulation where it is registered on the official list of approved contractors, services providers or suppliers in a relevant State which maintains such lists and in which the economic operator is established.

    (3) An economic operator is certified in accordance with this regulation where it is certified by a certification body complying with European certification standards in a relevant State which maintains such certification and in which the economic operator is established.

    (4) Where an economic operator which is registered or certified submits to the contracting authority–

which specifies the information submitted to that authority or body which enabled the economic operator to be registered or certified and which states the classification given, the contracting authority shall accept the certificate as evidence of the matters referred to in paragraph (5).

    (5) Subject to paragraph (6), where the certificate referred to in paragraph (4) deals with the grounds referred to in regulations 23(1), (4)(a) to(e), (h) and (j), 24(1)(b)(ii) and (iii) and–

the contracting authority shall–

    (6) A contracting authority is not to be required to comply with paragraph (5) where it considers that it has justification for not doing so.

Consortia
    
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 public 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 public contract or to be admitted to a dynamic purchasing system on the grounds that the consortium has not formed a legal entity for the purposes of tendering for or negotiating the contract or being admitted to a dynamic purchasing system.

    (3) Where a contracting authority awards a public 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.

Corporations
    
29. —(1) A contracting authority shall not treat the tender of a services provider as ineligible nor decide not to include a services provider amongst those services providers from which it will make the selection of services providers to be invited to tender for or to negotiate a contract or to be admitted to a dynamic purchasing system on the ground that under the law of any part of the United Kingdom the services provider is required to be an individual, a corporation or other type of body, if under the law of the relevant State in which the services provider is established, that services provider is authorised to provide such services.

    (2) In the case of–

a contracting authority may require an economic operator which is not an individual to indicate in the tender, the indicative 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.



PART 5

THE AWARD OF A PUBLIC CONTRACT

Criteria for the award of a public contract
    
30. —(1) Subject to regulation 18(27) and to paragraphs (6) and (9) of this regulation, a contracting authority shall award a public contract on the basis of the offer which–

    (2) A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period or period of completion.

    (3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

    (4) When stating the weightings referred to in paragraph (3), a contracting authority may give the weightings a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract.

    (5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority shall indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

    (6) If an offer for a public contract is abnormally low the contracting authority may reject that offer but only if it has–

    (7) Where a contracting authority requests an explanation in accordance with paragraph (6), the information requested may, in particular, include—

    (8) Where a contracting authority establishes that a tender is abnormally low because the economic operator has obtained State aid, the offer may be rejected on that ground alone only after–

    (9) Where a contracting authority rejects an abnormally low offer in accordance with paragraph (8), it shall send a report justifying the rejection to the Scottish Ministers for onward transmission to the Commission.

    (10) In this regulation "offer" includes a bid by one part of a contracting authority to provide services, to carry out a work or works or to make goods available to another part of the contracting authority when the former part is invited by the latter part to compete with the offers sought from other persons.

Contract award notice
    
31. —(1) Subject to paragraphs (2) and (3), a contracting authority which has awarded a public contract or concluded a framework agreement shall, not later than 48 days after the award or conclusion, send to the Official Journal a notice, in the form of the contract award notice in Annex III to Commission Regulation (EC) No. 1564/2005 including the information therein specified.

    (2) Any of the information specified in the form of the contract award notice in Annex III to Commission Regulation (EC) No. 1564/2005 to be included in the contract award notice may be omitted in a particular case where to publish such information–

    (3) A contracting authority shall not be required to send a contract award notice in accordance with paragraph (1) where it awards a contract under a framework agreement which has been concluded in accordance with regulation 19.

    (4) A contracting authority which has awarded a contract under a dynamic purchasing system in accordance with regulation 20 may–

    (5) Where a contracting authority retains contract award notices in accordance with paragraph (4)(b), it shall send those contract award notices to the Official Journal not later than 48 days after the end of each period of 3 months.

    (6) A contracting authority which has awarded a Part B services contract shall state in the contract award notice whether or not it agrees to its publication.

Information about contract award procedures
    
32. —(1) Subject to paragraph (13), a contracting authority shall as soon as possible after the decision has been made, inform any 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 party to a framework agreement, of its decision in relation to–

and shall do so by notice in writing by the most rapid means of communication practicable.

    (2) The notice referred to in paragraph (1) shall include–

    (3) A contracting authority shall allow a period of at least 10 days to elapse between the date of despatch of the notice referred to in paragraph (1) and the date on which that contracting authority proposes to enter into the contract or to conclude the framework agreement.

    (4) Subject to paragraph (13), if by midnight at the end of the second working day of the period referred to in paragraph (3), a contracting authority receives a request in writing from an economic operator which was sent a notice under paragraph (1), for the reasons why that economic operator was unsuccessful, the contracting authority shall inform that economic operator of the characteristics and relative advantages of the successful tender.

    (5) A contracting authority shall give the information set out in paragraph (4) at least 3 working days before the end of the period referred to in paragraph (3), or where that is not possible, the period referred to in paragraph (3) shall be extended to allow at least 3 working days between the provision of the information set out in paragraph (4) and the date the contracting authority proposes to enter into the contract.

    (6) Where a contracting authority is using the negotiated procedure in accordance with regulation 14(1)(a)(iv) and there is only one tender for the contract, that contracting authority need not comply with paragraphs (1) to (5).

    (7) Where a contracting authority awards a contract under a framework agreement, that contracting authority need not comply with paragraphs (1) to (5).

    (8) Where a contracting authority is seeking to establish a dynamic purchasing system in accordance with regulation 20, that contracting authority need not comply with paragraphs (1) to (5) but, subject to paragraph (13), shall as soon as possible after a decision has been made, inform any economic operator which applied to be admitted to a dynamic purchasing system of its decision in relation to admittance to that system and shall do so in writing if requested by the economic operator.

    (9) Except for a request made in accordance with paragraph (4), which shall be dealt with in accordance with paragraphs (4) and (5) and subject to paragraph (13), a contracting authority shall within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful (whether in accordance with regulation 15(11), 16(7), 16(8), 17(9), 17(10), 18(10), 18(11), 20(8) or 30)–

    (10) The reasons referred to in paragraph (9)(a) shall include any reason for the contracting authority's decision that the economic operator did not meet the technical specifications–

    (11) Subject to paragraph (13), a contracting authority shall as soon as possible after the decision has been made, inform any economic operator which submitted an offer, which applied to be included amongst the economic operators to be selected to tender for, to negotiate the contract or to be admitted to a dynamic purchasing system, of its decision to abandon or to recommence a contract award procedure in respect of which a contract notice has been published, in relation to–

    (12) A contracting authority which informs an economic operator of its decision in accordance with paragraph (11) shall–

    (13) A contracting authority may withhold any information to be provided in accordance with paragraph (1), (4), (8), (9) or (11) where the disclosure of such information–

    (14) A contracting authority shall prepare a record in relation to each public contract awarded by it, framework agreement concluded by it or dynamic purchasing system established by it, specifying–

    (15) A contracting authority shall keep appropriate information to document the progress of contract award procedures conducted by electronic means.

    (16) If the Commission requests a report containing the information specified in paragraph (14), the contracting authority shall send a written report containing that information, or the main features of it, to the Scottish Ministers for onward transmission to the Commission.



PART 6

SPECIALISED CONTRACTS

Design contests
    
33. —(1) A contracting authority which organises a design contest–

    (2) This regulation applies to a design contest if it is organised as part of a procedure leading to the award of a public services contract whose estimated value (net of value added tax and including the value of any prizes or payments) is not less than the relevant threshold described in paragraphs (4) and (5).

    (3) This regulation applies to a design contest whether or not it is organised as part of a procedure leading to the award of a public services contract if the aggregate value of the prizes or payments for the contest, including the estimated value (net of value added tax) of the contract which might subsequently be awarded in accordance with regulation 14(1)(c) (provided that the contracting authority does not exclude such an award), is not less than the relevant threshold described in paragraphs (4) and (5).

    (4) Subject to paragraph (5), the relevant threshold for the purposes of paragraphs (2) and (3) is–

    (5) For the purposes of paragraphs (2) and (3), the relevant threshold is 211,000 euro in the case of a public services contract which is–

    (6) This regulation does not apply to a design contest–

    (7) The contracting authority shall publicise its intention to hold a design contest by sending to the Official Journal a notice in the form of the design contest notice in Annex XII to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified.

    (8) The contracting authority shall make the rules of the design contest available to economic operators which wish to participate in the contest.

    (9) Regulations 28(2) and 29 apply to design contests as they apply to the seeking of offers in relation to a proposed public contract.

    (10) Regulation 42(1)(b) to (8) applies to notices relating to design contests as they apply to notices in relation to a proposed public contract.

    (11) Regulation 44(1), (2) and (4) applies to all communications relating to design contests as they apply to a proposed public contract.

    (12) The contracting authority shall ensure that the specified means of communication and the of information storage enables–

    (13) Where the contracting authority requires that proposals are to be received by electronic means, it shall ensure that–

    (14) Where the contracting authority restricts the number of economic operators in the design contest, it shall–

    (15) A contracting authority shall ensure that–

    (16) The contracting authority shall, not later than 48 days after the date the jury makes its selection, publicise the results of the design contest by sending to the Official Journal a notice in the form of the notice of the results of a design contest in Annex XIII to Commission Regulation (EC) No. 1564/2005 and including the information therein specified.

    (17) The contracting authority shall retain evidence of the date of despatch to the Official Journal of each notice.

    (18) Any of the information specified in the form of the notice referred to in paragraph (16) to be included in that notice may be omitted in a particular case where to publish such information—

Subsidised public works contracts and public services contracts
    
34. —(1) Where–

    (2) Paragraph (1) applies to a contract which, if the subsidised body were a contracting authority, would be

Subsidised housing scheme works contracts
    
35. —(1) For the purpose of seeking offers in relation to a subsidised housing scheme works contract to which the circumstances of paragraph (2) apply, a contracting authority may, except as indicated in the following paragraphs, depart from the provisions of these Regulations insofar as it is necessary to do so to select the contractor which is most suitable for integration into the team referred to in paragraph (2).

    (2) The circumstances referred to in paragraph (1) are where the size and complexity of the scheme and the estimated duration of the works involved require that the planning of the scheme be based from the outset on a close collaboration of a team comprising representatives of the contracting authority, experts and the contractor.

    (3) The contracting authority shall comply with the provisions of–

    (4) The contracting authority shall include in the contract notice a job description which is as accurate as possible so as to enable contractors to form a valid idea of the scheme and of the minimum standards relating to the business or professional status, the economic and financial standing, the technical ability and any quality assurance standards which the contractor awarded the contract will be expected to fulfil in accordance with regulations 23, 24, 25 and 26.

Public works concession contracts
    
36. —(1) A contracting authority seeking offers in relation to a public works concession contract shall comply with this regulation.

    (2) These Regulations do not apply to the seeking of offers in relation to a proposed public works concession contract where the estimated value of the contract (net of value added tax) at the relevant time is less than 5,278,000 euro.

    (3) In this regulation "relevant time" has the same meaning it has in regulation 8(20).

    (4) The estimated value of a public works concession contract for the purposes of paragraph (2) shall be the value of the consideration which the contracting authority would expect to give for the carrying out of the work or works if it did not propose to grant a concession.

    (5) The value of the consideration under a public works concession contract shall be calculated in accordance with regulation 8(6).

    (6) These Regulations shall not apply to the seeking of offers in relation to a proposed public works concession contract–

    (7) Paragraph (6)(f) does not apply where the aggregate value of the consideration to be given under contracts for the additional work or works exceeds 50% of the value of the consideration payable under the original contract.

    (8) The contracting authority shall–

    (9) Subject to paragraphs (10) and (13), the date which the contracting authority fixes as the last date for the receipt by it of tenders or of requests to be selected to tender for or to negotiate the contract, shall be specified in the contract notice and shall be not less than 52 days from the date of despatch of the notice.

    (10) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (9) may be reduced by 7 days.

    (11) The contracting authority shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator provided that the documents are requested in good time and any fee specified in the contract notice has accompanied the request.

    (12) The contracting authority shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the contracting authority to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (13) The contracting authority shall extend the time limit for the receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

Sub contracting the work or works to be carried out under a public works concession contract
    
37. —(1) A contracting authority seeking offers in relation to a public works concession contract shall either–

    (2) Where the concessionaire is a contracting authority, that contracting authority shall comply with the provisions of these Regulations in respect of any public works contract in relation to which it seeks offers for the purpose of sub contracting the work or works to be carried out under the public works concession contract.

    (3) Where the concessionaire is not a contracting authority, the concessionaire shall–

    (4) Paragraph (3) applies to a contract–

    (5) Where the concessionaire has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limits referred to in paragraph (3)(c) may be reduced by 7 days.

    (6) The concessionaire may reduce the time limits for the receipt of tenders by 5 days provided that–

    (7) The concessionaire shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator provided that the documents are requested in good time and any fee specified in the contract notice has accompanied the request.

    (8) The concessionaire shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the concessionaire to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (9) The concessionaire shall extend the time limit for the receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

    (10) The concessionaire may combine the reduction in the periods of time referred to in paragraphs (5) and (6).

    (11) In this regulation an economic operator is to be treated as related to another economic operator–

    (12) An economic operator shall be taken to exercise a dominant influence over another economic operator within the meaning of paragraph (11)–

    (13) A contracting authority shall require applicants for a public works concession contract to submit a list of all economic operators related to the applicant with the application and to update that list from time to time to take account of any changes in the economic operators related to the applicant.



PART 7

MATTERS RELATING TO A PUBLIC CONTRACT

Obligations relating to taxes, environmental protection, employment protection and working conditions
    
38. —(1) A contracting authority may include in the contract documents relating to a public works contract or to a public services contract information as to where a contractor or services provider may obtain information about the obligations relating to taxes, environmental protection, employment protection and working conditions which will apply to–

    (2) A contracting authority which provides the information referred to in paragraph (1) shall request contractors or services providers to indicate that they have taken account of the obligations relating to those employment protection provisions and those working conditions in preparing their tender or in negotiating the contract.

Conditions for performance of contracts
    
39. —(1) A contracting authority may stipulate conditions relating to the performance of a public contract, provided that those conditions are compatible with Community law and are indicated in–

    (2) The conditions referred to in paragraph (1) may, in particular, include social and environmental considerations.



PART 8

MISCELLANEOUS

Statistical and other reports
    
40. —(1) Subject to regulation 41, a contracting authority shall, not later than 31st July in each year, send to the Scottish Ministers a report specifying in relation to each public contract awarded by it or framework agreement concluded by it during the reporting period–

    (2) Subject to regulation 41, a contracting authority shall send to the Scottish Ministers a report containing such other information as the Scottish Ministers may from time to time require in respect of a particular public contract or framework agreement (including a public contract or framework agreement which is excluded from the application of these Regulations by regulation 6 or 8) for the purposes of providing the Commission with information.

    (3) In this regulation "the reporting period" means the year preceding the year in which the reports referred to in paragraph (1) are to be made.

Provision of reports
    
41. —(1) Where a contracting authority is a Scottish public authority it shall send the report to the Scottish Ministers otherwise it shall send the report to the Minister responsible for that contracting authority and that Minister shall be responsible for sending the report to the Office of Government Commerce.

    (2) The Minister responsible for a contracting authority shall be the Minister of the Crown whose areas of responsibility are most closely connected with the functions of the contracting authority.

    (3) Any question as to which Minister of the Crown's areas of responsibility are most closely connected with the functions of a contracting authority in accordance with paragraph (2) shall be determined by the Office of Government Commerce whose determination shall be final.

    (4) The requirement on a contracting authority to send any report in accordance with paragraph (1) to the Minister of the Crown responsible for that contracting authority shall be enforceable, on the application of the Minister responsible to the Court of Session by specific implement or the High Court in England and Wales or Northern Ireland, by mandatory order.

Publication of notices
    
42. —(1) Any notice required by these Regulations to be sent to the Official Journal shall be–

    (2) Where the contracting authority is applying the restricted procedure or the negotiated procedure and, for reasons of urgency, is applying the provisions of regulation 16(6), 16(17) or 17(8) the notice shall be sent by facsimile or by electronic means in the format and in accordance with the procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive.

    (3) Where a notice is not sent by electronic means in accordance with paragraph (1)(b) or (2), it shall not contain more than 650 words.

    (4) The contracting authority shall not place a notice in any publication–

    (5) The contracting authority shall refer in the notice to the date of despatch of that notice to the Official Journal or the date of its publication on its buyer profile where it publishes a notice in the circumstances referred to in paragraph (4).

    (6) The contracting authority shall not publish a prior information notice on its buyer profile before the date on which notice of its publication in that form is despatched to the Commission in accordance with regulation 11(3) and the contracting authority shall refer to the date of that despatch on its buyer profile.

    (7) The contracting authority shall retain evidence of the date of despatch to the Official Journal of each notice.

    (8) Where the contracting authority is not required to send a contract notice to the Official Journal in respect of a particular public contract or framework agreement it may nevertheless publish such a notice in accordance with the provisions of this regulation.

Confidentiality of information
    
43. —(1) Subject to the provisions of these Regulations, a contracting authority shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.

    (2) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders.

Means of communication
    
44. —(1) A contracting authority may specify that any communication referred to in these Regulations may be made–

    (2) The means of communication specified by a contracting authority shall be generally available and shall not restrict economic operators' access to the contract award procedures specified in these Regulations.

    (3) A contracting authority shall ensure that the specified means of communication and the storage of information enables–

    (4) The equipment used for communications made by electronic means shall be–

    (5) Where a contracting authority requires that tenders and requests to be selected to tender for or to negotiate the contract are to be transmitted by electronic means, it shall ensure that–

    (6) The requirements referred to in paragraph (5)(b) are–

    (7) A contracting authority may require any documents, certificates and declarations referred to in regulations 23, 24, 25, 26 and 27 which do not exist in electronic format to be submitted before the time limit has expired for the receipt by it of tenders or requests to be selected to tender for or to negotiate the contract.

    (8) Requests to be selected to tender for or to negotiate the contract may be made–

    (9) Where a request to be selected to tender for or to negotiate the contract is made by telephone, an economic operator shall confirm the request in writing before the deadline for receipt of such requests has expired.

    (10) Where a request to be selected to tender for or to negotiate the contract is made by facsimile, a contracting authority–

Sub-contracting
     45. A contracting authority may require an economic operator to indicate in its tender–

Public service bodies
    
46. —(1) Where a contracting authority, other than one which is a contracting authority only by reason of being a Schedule 1 entity, grants to a person other than a contracting authority, special or exclusive rights to carry on a service for the benefit of the public, it shall impose an express duty on that person in the terms referred to in paragraph (2).

    (2) The duty referred to in paragraph (1) is a duty not to discriminate in seeking offers in relation to, or in awarding, a contract for the purchase or hire of goods on the grounds–



PART 9

APPLICATIONS TO THE COURT

Enforcement of obligations
    
47. —(1) The obligation on–

is a duty owed to an economic operator.

    (2) The duty owed to an economic operator in accordance with paragraph (1), except in relation to–

is a duty owed also to a GPA economic operator.

    (3) The duty owed to a GPA economic operator referred to in paragraph (2) shall only be owed by the Secretary of State for Defence in relation to public supply contracts for the purchase or hire of goods specified in Schedule 5.

    (4) References to an "economic operator" in paragraphs (6), (7) and (8) shall be construed as including a reference to a GPA economic operator.

    (5) In this regulation and notwithstanding regulation 4, references to an "economic operator" include, where the duty owed in accordance with paragraph (1) is the obligation on a concessionaire to comply with regulation 37(3), any person–

    (6) A breach of the duty owed in accordance with paragraph (1) or (2) shall be actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the sheriff court, the Court of Session, or in England and Wales and Northern Ireland, the High Court.

    (7) Proceedings under this regulation may not be brought unless–

    (8) Subject to paragraph (9), but otherwise without prejudice to any other powers of the Court, in proceedings brought under this regulation the Court may–

    (9) In proceedings under this regulation the Court shall not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) or (2) if the contract in relation to which the breach occurred has been entered into.

    (10) Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947[
41], in proceedings brought under this regulation against the Crown the Court shall have power to grant an interim order.

    (11) In this regulation



PART 10

REPEALS, REVOCATIONS, SAVINGS, TRANSITIONAL PROVISIONS

Repeals and revocations
     48. Subject to regulation 49–

Savings and transitional provisions
    
49. —(1) Where a contracting authority has commenced a contract award procedure or design contest before 31st January 2006, the Regulations specified in paragraph (4) shall continue to have effect on and after 31st January 2006 in relation to that contract award procedure, as if those Regulations had not been revoked in accordance with regulation 48.

    (2) A contracting authority has commenced a contract award procedure as referred to in paragraph (1) where before 31st January 2006, in relation to that procedure–

    (3) Where a framework agreement has been concluded before 31st January 2006, these Regulations do not apply to the award of any specific contract under that framework agreement.

    (4) In this regulation–


TOM McCABE
A member of the Scottish Executive

St Andrew's House, Edinburgh
4th January 2006



SCHEDULE 1
Regulation 2(1)


GPA ANNEX 1 CONTRACTING AUTHORITIES


Where an entity listed in this Schedule is succeeded by another entity, which is itself a contracting authority, the successor entity shall be deemed to be included in this Schedule.

Cabinet Office

Central Office of Information

Charity Commission

Department for Constitutional Affairs

Department for Culture, Media and Sport

Crown Prosecution Service

Crown Estate Commissioners (Vote Expenditure Only)

Department for Education and Skills

Department for Environment, Food and Rural Affairs

Department of Health

Department for International Development

Department for Transport

Department of the Procurator General and Treasury Solicitor

Department of Trade and Industry

Department for Work and Pensions

Export Credits Guarantee Department

Foreign and Commonwealth Office

Government Actuary's Department

Government Communications Headquarters

Home Office

House of Commons

House of Lords

Ministry of Defence

National Archives

National Assembly for Wales

National Audit Office

National Savings and Investments

Northern Ireland Assembly Commission

Northern Ireland Court Service

Northern Ireland, Department for Employment and Learning

Northern Ireland, Department for Regional Development

Northern Ireland, Department for Social Development

Northern Ireland, Department of Agricultural and Rural Development

Northern Ireland, Department of Culture, Arts and Leisure

Northern Ireland, Department of Education

Northern Ireland, Department of Enterprise, Trade and Investment

Northern Ireland, Department of the Environment

Northern Ireland, Department of Finance and Personnel

Northern Ireland, Department of Health, Social Services and Public Safety

Northern Ireland, Office of the First Minister and Deputy First Minister

Northern Ireland Office

Office of the Deputy Prime Minister

Office of Fair Trading

Office of the Parliamentary Commissioner for Administration and Health Service Commissioners

Paymaster General's Office

Postal Business of the Post Office

Privy Council Office

Public Record Office

Royal Hospital, Chelsea

Royal Mint

Rural Payments Agency

Scotland, Auditor-General

Scotland, Crown Office and Procurator Fiscal Service

Scotland, General Register Office

Scotland, Queen's and Lord Treasurer's Remembrancer

Scotland, Registers of Scotland

The Scotland Office

The Scottish Ministers

The Scottish Parliamentary Corporate Body

Scottish Record Office

HM Revenue and Customs

The Revenue and Customs Prosecutions Office

HM Treasury

The Wales Office (Office of the Secretary of State for Wales)



SCHEDULE 2
Regulation 2(1)


ACTIVITIES CONSTITUTING WORKS


Section F Construction
Division Group Class Subject Notes CPV Code
45                       Construction Construction of new buildings and works, restoring and common repairs 45000000
           45.1            Site preparation            45100000
                      45.11 Demolition and wrecking of buildings; earth moving Demolition of buildings and other structures

Clearing of building sites

Earth moving; excavation, landfill, levelling and grading of construction sites, trench digging, rock removal, blasting, etc.

Site preparation for mining:

    overburden removal and other development and preparation of mineral properties and sites

Building site drainage

Drainage of agricultural or forestry land

45110000
                      45.12 Test drilling and boring Test drilling, test boring and core sampling for construction, geophysical, geological or similar purposes 45120000
           45.2            Building of complete constructions or parts thereof; civil engineering            45200000
                      45.21 General construction of buildings and civil engineering works Construction of all types of buildings

Construction of civil engineering constructions

Bridges, including those for elevated highways, viaducts, tunnels and subways

Long-distance pipelines, communication and power lines

Urban pipelines, urban communication and powerlines

Ancillary urban works

Assembly and erection of prefabricated constructions on the site

45210000
                      45.22 Erection of roof coverings and frames Erection of roofs

Roof covering

Waterproofing

45220000
                      45.23 Construction of highways, roads, airfields and sport facilities Construction of highways, streets, roads, other vehicular and pedestrian ways

Construction of railways

Construction of airfield runways

Construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations

Paintings of markings on road surfaces and car parks

45230000
                      45.24 Construction of water projects Construction of

Waterways, harbour and river works, pleasure ports (marinas), locks, etc.

Dams and dykes dredging

Subsurface work

45240000
                      45.25 Other construction work involving special trades Construction activities specialising in one aspect common to different kinds of structures, requiring specialised skill or equipment

Construction of foundations, including pile driving

Water well drilling and construction, shaft sinking

Erection of non self manufactured steel elements

Steel bending

Bricklaying and stone setting

Scaffolds and work platform erecting and dismantling, including renting of scaffolds and work platforms;

Erection of chimneys and industrial ovens

45250000
           45.3            Building installation            45300000
                      45.31 Installation of electrical wiring and fittings Installation in buildings or other construction projects of:

    Electrical wiring and fittings

Telecommunications systems

Electrical heating systems

Residential antennas and aerials

Fire alarms

Burglar alarm systems

Lifts and escalators

Lightening conductors, etc.

45310000
                      45.32 Insulation work activities Installation in buildings or other construction projects of thermal, sound or vibration insulation 45320000
                      45.33 Plumbing Installation in buildings or other construction projects of:

    Plumbing and sanitary equipment

Gas fittings

Heating, ventilation, refrigeration or airconditioning equipment and ducts

Sprinkler systems

45330000
                      45.34 Other building installation Installation of illumination and signalling systems for roads, railways, airports and harbours

Installation in buildings or other construction projects of fittings and fixtures n.e.c

45340000
           45.4            Building completion            45400000
                      45.41 Plastering Application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials 45410000
                      45.42 Joinery installation Installation of non self manufactured doors, windows, door and window frames, fitted kitchens, staircases, shop fittings and the like, of wood or other materials

Interior completion such as ceilings, wooden wall coverings, movable partitions, etc.

45420000
                      45.43 Floor and wall covering Laying, tiling, hanging or fitting in buildings or other construction projects of:

    Ceramic, concrete or cut stone wall or floor tiles

Parquet and other wood floor coverings carpets and linoleum floor coverings carpets and linoleum floor coverings, including of rubber or plastic

Terrazzo, marble, granite or slate floor or wall coverings

Wallpaper

45430000
                      45.44 Painting and glazing Interior and exterior painting of buildings

Painting of civil engineering structures

Installation of glass, mirrors etc

45440000
                      45.45 Other building completion Installation of private swimming pools steam cleaning, sand blasting and similar activities for building exteriors

Other building completion and finishing work n.e.c

45450000
           45.5            Renting of construction or demolition equipment with operator            45500000
                      45.50 Renting of construction or demolition equipment with operator            45500000



SCHEDULE 3
Regulation 2(2)


CATEGORIES OF SERVICES




Part A

Category Services CPC Reference No CPV Code
1 Maintenance and repair of vehicles and equipment 6112, 6122, 633, 886 from 50100000 to 50982000 (except for 50310000 to 50324200 and 50116510-9, 50190000-3, 50229000-6, 50243000-0)
2 Transport by land, including armoured car services and courier services but not including transport of mail and transport by rail 712 (except 71235), 7512, 87304 from 60112000-6 to 60129300-1 (except 60121000 to 60121600, 60122200-1, 60122230-0), and from 64120000-3 to 64121200-2
3 Transport by air but not transport of mail 73 (except 7321) from 62100000-3 to 62300000-5 (except 62121000-6, 62221000-7)
4 Transport of mail by land, other than by rail, and by air 71235, 7321 60122200-1, 60122230-0

62121000-6, 62221000-7

5 Telecommunications services 752 from 64200000-8 to 64228200-2, 72318000-7, and

from 72530000-9 to 72532000-3

6 Financial services:

    (a) Insurance services

    (b) Banking and investment services other than financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments and central bank services

Ex 81, 812, 814 from 66100000-1 to 66430000-3 and

from 67110000-1 to 67262000-1

7 Computer and related services 84 from 50300000-8 to 50324200-4,

from 72100000-6 to 72591000-4 (except 72318000-7 and from 72530000-9 to 72532000-3)

8 Research and Development services where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs and the services are to be wholly paid for by the contracting authority 85 from 73000000-2 to 73300000-5

(except 73200000-4, 73210000-7, 7322000-0)

9 Accounting, auditing and book-keeping services 862 from 74121000-3 to 74121250-0
10 Market research and public opinion polling services 864 from 74130000-9 to 74133000-0, and 74423100-1, 74423110-4
11 Management consultancy services and related services, but not arbitration and conciliation services 865, 866 from 73200000-4 to 73220000-0,

from 74140000-2 to 74150000-5 (except 74142200-8), and 74420000-9, 74421000-6, 74423000-0, 74423200-2, 74423210-5, 74871000-5, 93620000-0

12 Architectural services: engineering services and integrated engineering services: urban planning and landscape architectural services: related scientific and technical consulting services: technical testing and analysis services 867 from 74200000-1 to 74200000-1 to 74276400-8, and

from 74310000-5 to 74323100-0, and 74874000-6

13 Advertising services 871 from 74400000-3 to 74422000-3 (except 74420000-9 and 74421000-6)
14 Building-cleaning services and property management services 874, 82201 to 82206 from 70300000-4 to 70340000-6, and 74710000-9 to 74760000-4
15 Publishing and printing services on a fee or contract basis 88442 from 78000000-7 to 78400000-1
16 Sewerage and refuse disposal service: sanitation and similar services 94 FROM 90100000-8 TO 903200000 6, AND 50190000 3, 50229000 6, 50243000 0



Part B

Category Services CPC Reference No CPV Code
17 Hotel and restaurant services 64 from 55000000 0 to 55524000 9, and from 93400000-2 to 93411000-2
18 Transport by rail 711 60111000-9, and

from 60121000-2 to 60121600-8

19 Transport by water 72 from 61000000-5 to 61530000-9, and from 63370000-3 to 63372000-7
20 Supporting and auxiliary transport services 74 62400000-6, 62440000-8, 62441000-5, 62450000-1,

from 63000000-9 to 63600000-5 (except 63370000-3, 63371000-0, 63372000-7), and 74322000-2, 93610000-7

21 Legal services 861 from 74110000-3 to 74114000-1
22 Personnel placement and supply services 872 from 74500000-4 to 74540000-6 (except 74511000-4), and from 95000000-2 to 95140000-5
23 Investigation and security services, other than armoured car services 873 (except 87304) from 74600000-5 to 74620000-1
24 Education and vocational health services 92 from 80100000-5 to 80430000-7
25 Health and social services 93 74511000-4, and

from 85000000-9 to 85323000-9 (except 85321000-5 and 85322000-2)

26 Recreational, cultural and sporting services 96 from 74875000-3 to 74875200-5, and from 92000000-1 to 92622000-7 (except 92230000-2)
27 Other services                      



SCHEDULE 4
Regulations 2(1) and 4(4)


EXTENSION TO NON-MEMBER STATES


Relevant States Agreement with the European Union which extends the provisions relating to public procurement to the relevant State Statutory provisions designating the agreements as European Treaties
     1. Bulgaria

Europe Agreement[48] S.I. 1994/758.
     2. Iceland

European Economic Area Agreement[49] European Economic Area Act 1993[50], section 1.
     3. Liechtenstein

European Economic Area Agreement European Economic Area Act 1993, section 1.
     4 Norway

European Economic Area Agreement European Economic Area Act 1993, section 1.
     5. Romania

Europe Agreement[51] S.I. 1994/760.



SCHEDULE 5
Regulation 8(5)


GOODS FOR THE PURPOSES OF THE THRESHOLDS


The goods for the purpose of regulation 8(5) are those specified in the following chapters for the Customs Co-operation Council Nomenclature (CCCN).

Chapter 25: Salt; sulphur; earths and stone, plastering materials, lime and cement
Chapter 26: Metallic ores, slag and ash
Chapter 27: Mineral fuels, mineral oils and products of their distillation, bituminous substances; mineral waxes

except:

ex 27.10: special engine fuels

Chapter 28: Inorganic chemicals, organic and inorganic compounds of precious metals, of rare-earth metals, of radioactive elements and of isotopes

except:

ex 28.09: explosives

ex 28.13: explosives

ex 28.14: tear gas

ex 28.28: explosives

ex 28.32: explosives

ex 28.39: explosives

ex 28.50: toxic products

ex 28.51: toxic products

ex 28.54: explosives

Chapter 29: Organic chemicals

except:

ex 29.03: explosives

ex 29.04: explosives

ex 29.07: explosives

ex 29.08: explosives

ex 29.11: explosives

ex 29.12: explosives

ex 29.13: toxic products

ex 29.14: toxic products

ex 29.15: toxic products

ex 29.21: toxic products

ex 29.22: toxic products

ex 29.23: toxic products

ex 29.26: explosives

ex 29.27: toxic products

ex 29.29: explosives

Chapter 30: Pharmaceutical products
Chapter 31: Fertilisers
Chapter 32: Tanning and dyeing extracts, tannings and their derivatives, dyes, colours, paints and varnishes, putty, fillers and stoppings, inks
Chapter 33: Essential oils and resinoids, parfumery, cosmetic or toilet preparations
Chapter 34: Soap, organic surface-active agents, washing preparations, lubricating preparations, artificial waxes, prepared waxes, polishing and scouring preparations, candles and similar articles, modelling pastes and ‘dental waxes'
Chapter 35: Albuminoidal substances, glues, enzymes
Chapter 37: Photographic and cinematographic goods
Chapter 38: Miscellaneous chemical products,

except:

ex 38.19: toxic products

Chapter 39: Artificial resins and plastic materials, celluloses esters and ethers, articles thereof,

except:

ex 39.03 explosives

Chapter 40: Rubber, synthetic rubber, factice, and articles thereof,

except:

ex 40.11: bullet-proof tyres

Chapter 41: Raw hides and skins (other than furskins) and leather
Chapter 42: Articles of leather, saddlery and harness, travel goods, handbags and similar containers, articles of animal gut (other than silkworm gut)
Chapter 43: Furskins and artificial fur, manufactures thereof
Chapter 44: Wood and articles of wood, wood charcoal
Chapter 45: Cork and articles of cork
Chapter 46: Manufactures of straw of esparto and of other plaiting materials, basketware and wickerwork
Chapter 47: Paper-making material
Chapter 48: Paper and paperboard, articles of paper pulp, of paper or of paperboard
Chapter 49: Printed books, newspapers, pictures and other products of the printing industry, manuscripts, type-scripts and plans
Chapter 65: Headgear and parts thereof
Chapter 66: Umbrellas, sunshades, walking-sticks, whips, riding-crops and parts thereof
Chapter 67: Prepared feathers and down and articles made of feathers or of down, artificial flowers, articles of human hair
Chapter 68: Articles of stone, of plaster, of cement, of asbestos, of mica and of similar materials
Chapter 69 Ceramic products
Chapter 70: Glass and glassware
Chapter 71: Pearls, precious and semi-precious stones, precious metals, rolled precious metals, and articles thereof: imitation jewellery
Chapter 73: Iron and steel and articles thereof
Chapter 74: Copper and articles thereof
Chapter 75: Nickel and articles thereof
Chapter 76: Aluminium and articles thereof
Chapter 77: Magnesium and beryllium and articles thereof
Chapter 78: Lead and articles thereof
Chapter 79: Zinc and articles thereof
Chapter 80: Tin and articles thereof
Chapter 81: Other base metals employed in metallurgy and articles thereof
Chapter 82: Tools, implements, cutlery, spoons and forks, of base metal, parts thereof,

except:

ex 82.05: tools

ex 82.07: tools, parts

Chapter 83: Miscellaneous articles of base metal
Chapter 84: Boilers, machinery and mechanical appliances, parts thereof,

except:

ex 84.06: engines

ex 84.08: other engines

ex 84.45: machinery

ex 84.53: automatic data-processing machines

ex 84.55 parts of machines under heading No 84.53

ex 84.59: nuclear reactors

Chapter 85: Electrical machinery and equipment, parts thereof,

except:

ex: 85.13: telecommunication equipment

ex: 85.15: transmission apparatus

Chapter 86: Railway and tramway locomotives, rolling-stock and parts thereof, railway and tramway tracks fixtures and fittings, traffic signalling equipment of all kinds (not electrically powered),

except:

ex 86.02: armoured locomotives, electric

ex 86.03: other armoured locomotives

ex 86.05: armoured wagons

ex 86.06 repair wagons

ex 86.07 wagons

Chapter 87: Vehicles, other than railway or tramway rolling-stock, and parts thereof,

except:

ex 87.08: tanks and other armoured vehicles

ex 87.01: tractors

ex 87.02: military vehicles

ex 87.03: breakdown lorries

ex 87.09: motorcycles

ex 87.14: trailers

Chapter 89: Ships, boats and floating structures,

except:

ex 89.01A: warships

Chapter 90: Optical, photographic, cinematographic, measuring, checking, precision, medical and surgical instruments and apparatus, parts thereof,

except:

ex 90.05: binoculars

ex 90.13: miscellaneous instruments, lasers

ex 90.14: telemeters

ex 90.28: electrical and electronic measuring instruments

ex 90.11: microscopes

ex 90.17: medical instruments

ex 90.18: mechano-therapy appliances

ex 90.19: orthopaedic appliances

ex 90.20: X-ray apparatus

Chapter 91: Manufacture of watches and clocks
Chapter 92: Musical instruments, sound recorders or reproducers, television image and sound recorders or reproducers, parts and accessories of such articles
Chapter 94: Furniture and parts thereof, bedding, mattresses, mattress supports, cushions and similar stuffed furnishings,

except:

ex 94.01A: aircraft seats

Chapter 95: Articles and manufactures of carving or moulding material
Chapter 96: Brooms, brushes, powder-puffs and sieves
Chapter 98: Miscellaneous manufactured articles



SCHEDULE 6
Regulation 23(4)(j)


PROFESSIONAL OR TRADE REGISTERS


PUBLIC SERVICES CONTRACTS

     1. In relation to procedures for the award of a public services contract, the following are the appropriate professional or trade registers for the purposes of regulation 23(1)(j)–

PUBLIC WORKS CONTRACTS

     2. In relation to procedures for the award of a public works contract the following are the appropriate professional or trade registers for the purposes of regulation 23(1)(j)–

PUBLIC SUPPLY CONTRACTS

     3. In relation to procedures for the award of a public supply contract the following are the appropriate professional or trade registers for the purposes of regulation 23(4)(j)–



SCHEDULE 7
Regulation 48


CONSEQUENTIAL AMENDMENTS, REPEALS AND REVOCATIONS


REPEALS AND REVOCATIONS

ENACTMENTS

European Economic Area Act 1993
     1. In paragraph 3 of the Schedule to the European Economic Area Act 1993[
52] (limitations on the application of section 2(1)), sub paragraphs (e) and (f) shall cease to have effect.

INSTRUMENTS

     2.

Title Number Extent of revocation
1 2 3
Public Works Contracts Regulations 1991 S.I. 1991/2680 The whole Regulations.
Public Services Contracts Regulations 1993 S.I. 1993/3228 The whole Regulations.
Public Supply Contracts Regulations 1995 S.I. 1995/201 The whole Regulations.
Local Government (Translation Amendments)(Scotland) Order 1996 S.I. 1996/974 Paragraphs 9 and 11 of Schedule 1.
Secretary of State for Culture, Media and Sport Order 1997 S.I.1997/1744 Paragraph 5 of the Schedule.
Competition Act 1998 (Competition Commission) Transitional, Consequential and Supplemental Provisions Order 1999 S.I. 1999/506 Article 35.
Scotland Act 1998 (Consequential Modifications)(No. 1) Order 1999 S.I. 1999/1042 Paragraphs 20, 21 and 22 of Schedule 1 and paragraph 13 of Schedule 2.
Scotland Act 1998 (Consequential Modifications)(No. 2) Order 1999 S.I. 1999/1820 Paragraphs 148, 153 and 156 of Schedule 2.
Public Contracts (Works, Services and Supply)(Amendment) Regulations 2000 S.I. 2000/2009 The whole Regulations.
Postal Services Act 2000 (Consequential Modifications No. 1) Order 2001 S.I. 2001/1149 Paragraphs 100 and 106 of Schedule 1.
Nursing and Midwifery Order 2001 (Consequential Amendments) Order 2002 S.I. 2002/881 Paragraph 11 of the Schedule.
Public Contracts (Works, Services and Supply) and Utilities Contracts (Amendment) Regulations 2003 S.I. 2003/46 The whole Regulations.
Scottish Public Services Ombudsman Act 2002 (Consequential Modification of Instruments) Order 2003 S.S.I. 2003/242 Articles 2 and 4.



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations implement, for Scotland, Directive 2004/18/EC of the European Parliament and Council of 31st March 2004 on the co-ordination of procedures for the award of public works contracts, public supply contracts and public services contracts (O.J. No. L 134, 30.4.2004, p.114).

These Regulations specify the procedures to be followed in relation to the award of public works contracts, public supply contracts and public services contracts by public bodies called contracting authorities.

The Regulations also provide remedies for breaches of these Regulations in order to implement Council Directive 89/665/EEC of 21st December 1989 ("the Remedies Directive") which requires Members States to provide effective remedies at national level for breaches of Regulations relating to procurement.

A full regulatory assessment of the effect that this Instrument will have on the costs of business has been prepared and placed in Spice. Copies may be obtained from the Scottish Procurement Directorate's website at
www.scotland.gov.uk/topics/government/spd.


Notes:

[1] 1972 c.68. Section 2(2) was amended by the Scotland Act 1998 (c.46), Schedule 8, paragraph 15. The function conferred upon the Minister of the Crown under section 2(2) of the European Communities Act 1972, insofar as within devolved competence, was transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998.back

[2] O.J. No. L 57, 1.10.05, p.1. The standard forms set out in the Annex to this Regulation are available at the internet address http://simap.eu.int.back

[3] O.J. No. L 340, 16.12.02, p.1. This Regulation was amended by Commission Regulation (EC) No. 2151/2003 of 16th December 2003 O.J. No. L 329, 17.12.03, p.1.back

[4] CPC (provisional version). Further information may be obtained from the United Nations website at http://unstats.un.org.back

[5] 1995 c.50. Sections 2 and 3 are amended by sections 18 and 19(1) of, and Schedule 1 to, the Disability Discrimination Act 2005 (c.13). There are other amendments which are not relevant to these Regulations.back

[6] Cmnd 2575. As at 1st January 2000, parties to the Government Procurement Agreement other than member States were Aruba, Canada, Hong Kong Special Administrative Region, Israel, Japan, Republic of Korea, Liechtenstein, Norway, Singapore, Switzerland and the United States of America.back

[7] The address of the Office of Government Commerce is Trevelyan House, 26-30 Great Peter Street, London SW1P 2BY.back

[8] O.J. No. L 134, 30.4.04, p.114.back

[9] O.J. No. L 134, 30.4 04, p 1.back

[10] 1971 c. 80. There are amendments to this Act which are not relevant to these Regulations.back

[11] 1994 c.39.back

[12] 1972 c.9 (N.I.).back

[13] 1947 c.41.back

[14] 2004 c.21.back

[15] 1973 c.65back

[16] 1996 c.16.back

[17] Section 5B of the Police Act 1996 was inserted by the Greater London Authority Act 1999 (c.29).back

[18] 1967 c.77.back

[19] 1967 c.77. Section 21B was inserted by the Local Government etc. (Scotland) Act 1994 (c.39) section 34.back

[20] 1985 c.51.back

[21] 1994 c.39back

[22] 1995 c.25.back

[23] 2000 asp 10.back

[24] 1972 c.68.back

[25] S.S.I. 2006/2.back

[26] The format and procedures referred to are available at the Internet address http://simap.eu.int.back

[27] O.J. L 351, 29.12.98, p.1.back

[28] 1889 c.69.back

[29] 1906 c.34. Section 1 was amended by section 47(2) and (3) of the Criminal Justice Act 1988 (c.33), section 108(2) of the Anti terrorism, Crime and Security Act 2001(c.24) and section 68(2) of the Criminal Justice (Scotland) Act 2003 (asp 7).back

[30] 2003 asp 7back

[31] 1985 c.6. There are amendments to this Act which are not relevant to these Regulations.back

[32] 1979 c.2. There are amendments to this Act which are not relevant to these Regulations.back

[33] 1994 c.23. Section 72 was amended by section 17 of the Finance Act 2003 (c.40). There are other amendments to this Act which are not relevant to these Regulations.back

[34] 1993 c.36. There are amendments to this Act which are not relevant to these Regulations.back

[35] S.I. 2003/3075.back

[36] 1986 c.45. There are amendments to this Act which are not relevant to these Regulations.back

[37] S.I. 1989/2405 (N.I. 19). There are amendments to this Order which are not relevant to these Regulations.back

[38] 2002 c. 40. There are amendments to this Act which are not relevant to these Regulations.back

[39] The Community Eco Management and Audit Scheme (EMAS) is a management tool for companies and other organisations to evaluate, report and improve their environmental performance; for more information see www.europa.eu.int/comm/environment/emas/index-en.htm.back

[40] O.J. 13, 19.1.00, p12.back

[41] 1947 c.44. There are amendments to this Act which are not relevant to these Regulations.back

[42] Information on the detailed application of the GPA under bilateral agreements between the EU and other signatories is maintained in the Annexes and general notes in Appendix 1 to the GPA. Access to this information is available through the World Trade Organisation website at www.wto.org.back

[43] S.I. 1991/2680.back

[44] S.I. 1993/3228.back

[45] S.I. 1995/201.back

[46] S.I. 2000/2009.back

[47] S.I. 2003/46.back

[48] OJ No L358, 31.12.94, p.2.back

[49] Cmnd 2073 as adjusted by the Protocol signed in Brussels on 17th March 1993 (Cmnd 2183).back

[50] 1993 c.51.back

[51] OJ No L357, 31.12.94,p.2.back

[52] 1993 c.51.back



ISBN 0 11 069896 7


 © Crown copyright 2006

Prepared 13 January 2006


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