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STATUTORY INSTRUMENTS


2006 No. 5

PUBLIC PROCUREMENT, ENGLAND AND WALES, PUBLIC PROCUREMENT NORTHERN IRELAND

The Public Contracts Regulations 2006

  Made 9th January 2006 
  Laid before Parliament 9th 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

CONSEQUENTIAL AMENDMENTS, REPEALS, REVOCATIONS, SAVINGS AND TRANSITIONAL PROVISIONS
48. Consequential amendments, repeals and revocations
49. Savings and transitional provisions

  SCHEDULE 1— GPA 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— CONSEQUENTIAL AMENDMENTS, REPEALS AND REVOCATIONS

The Treasury, being designated[
1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to public procurement, in exercise of the powers conferred upon them by the said section 2(2), make the following Regulations—



PART 1

GENERAL

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

    (2) These Regulations do not extend to Scotland.

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 of the consideration 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) In the application of these Regulations to a local authority in England, "local authority" in paragraph (1) means—

    (3) In the application of these Regulations to a local authority in Wales, "local authority" in paragraph (1) means a county council, a county borough council or a community council.

    (4) In the application of these Regulations to a local authority in Scotland, "local authority" in paragraph (1) has the same meaning as in section 235(1) of the Local Government (Scotland) Act 1973[21] and also includes a joint board or joint committee within the meaning of section 235(1) of that Act.

    (5) In the application of these Regulations to a local authority in Northern Ireland, "local authority" in paragraph (1) means a district council within the meaning of the Local Government Act (Northern Ireland) 1972[22].

    (6) 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 (in accordance with Article 2 of the Public Sector Directive)—

    (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[23] is specified in column 3 of that Schedule.

Application
     5. —(1) Subject to paragraph (3), 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 Regulations 2006[24] 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 factories, supported businesses or supported employment programmes.

    (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, framework agreement or dynamic purchasing system (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 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 purposes 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 a 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.



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)—


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