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S.I. No. 50/2007 - European Communities (Award of Contracts by Utility Undertakings) Regulations 2007

S.I. No. 50/2007 - European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.

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  3. s)or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile Statutory InstrumentsIonstraimí Reachtúla 2007 S.I. No. 50/2007 - European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 S.I. No. 50/2007 - European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 AmendmentsLeasuithe S.I. No. 50 of 2007 REGULATIONS entitled European Communities (Award of Contracts by Utility Undertakings) Regulations 2007 Made by the Minister for Finance TABLE OF CONTENTS PART 1 PRELIMINARY PROVISIONS Regulation 1. Citation and commencement 2. Object of these Regulations 3. Interpretation 4. Application of these Regulations PART 2 ACTIVITIES TO WHICH THESE REGULATIONS APPLY CHAPTER 1 Procurement procedures relating to certain specified activities 5. Procurement procedures for suppliers of gas, heat and electricity services 6. Procurement procedures for suppliers of water supply services 7. Procurement procedures for suppliers of transport services 8. Procurement procedures for suppliers of postal services 9. Procurement procedures for entities engaged in exploration for, or extraction of, oil, gas, coal or other solid fuels 10. Procurement procedures of port and airport operators CHAPTER 2 Multiple activities 11. Contracts covering several activities CHAPTER 3 Contract thresholds 12. Threshold amounts for contracts 13. Methods for calculating the estimated value of contracts, framework agreements and dynamic purchasing systems PART 3 CONTRACTS TO WHICH THESE REGULATIONS DO NOT APPLY CHAPTER 1 Exclusions 14. Regulations not to apply to certain works and service concessions 15. Contracts awarded for purposes of resale or lease to third parties 16. Contracts awarded for purpose other than carrying out a prescribed activity or for carrying out a prescribed activity in a third country 17. Contracts that are secret or require special security measures 18. Contracts awarded under international rules 19. Contracts awarded to an affiliated undertaking, to a joint venture or to a contracting entity forming part of a joint venture CHAPTER 2 Exclusions applicable to service supply contracts only 20. Contracts relating to certain services excluded from the scope of these Regulations 21. Service supply contracts awarded on the basis of an exclusive right CHAPTER 3 Exclusions applicable to certain contracting entities 22. Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy 23. Procurement procedures not to be subject to these Regulations when activity is exposed to competition PART 4 GENERAL RULES APPLICABLE TO REGULATED CONTRACTS 24. Principles for awarding contracts 25. Economic operators 26. Conditions relating to agreements concluded within the World Trade Organisation 27. Contracting entities not to disclose confidential information 28. Framework agreements 29. Dynamic purchasing systems PART 5 RESERVED CONTRACTS AND CENTRAL PURCHASING 30. Contracting entity may reserve award of contracts to persons employed in sheltered workshops 31. Contracts and framework agreements awarded by central purchasing bodies PART 6 RULES APPLICABLE TO SERVICE SUPPLY CONTRACTS 32. Service supply contracts listed in Part A of Schedule 6 33. Service supply contracts listed in Part B of Schedule 6 34. Mixed service supply contracts for services listed in both Parts A and B of Schedule 6 PART 7 MATTERS TO BE SPECIFIED IN CONTRACT OR ASSOCIATED DOCUMENTS 35. Technical specifications 36. Formulation of technical specifications 37. Communication of technical specifications 38. Tenderers may submit variants 39. Contracting entity can ask tenderers to specify their intentions with respect to subcontracting 40. Conditions for performance of contracts 41. Obligations relating to taxes, environmental protection, employment protection provisions and working conditions CHAPTER 9 Procedures for awarding contracts 42. Use of open, restricted and negotiated procedures PART 8 RULES ON PUBLICATION AND TRANSPARENCY CHAPTER 1 Publication of notices 43. Periodic indicative notices and notices on the existence of a system of qualification 44. How calls for competition can be made 45. Contract award notices 46. Form and manner in which notices are to be published CHAPTER 2 Time limits 47. Deadline for the receipt of requests to participate and for the receipt of tenders 48. Open procedure: contract specifications and supporting documents to be provided on request 49. Invitations to submit a tender or to negotiate CHAPTER 3 Communication and information 50. Rules applicable to communication 51. Information to be given to applicants for qualification, candidates and tenderers 52. Information to be stored concerning awards PART 9 CONDUCT OF AWARD PROCEDURE WHEN CONTRACTING ENTITY USES RESTRICTED PROCEDURE OR NEGOTIATED PROCEDURE CHAPTER 1 General 53. General provisions for conducting restricted procedure or negotiated procedure CHAPTER 2 Qualification and qualitative selection 54. Mutual recognition of administrative, technical or financial conditions, and certificates, tests and evidence 55. Establishment and operation of qualification systems by contracting entities 56. Selection to be in accord with objective rules and criteria CHAPTER 3 Awarding a regulated contract 57. Criteria for awarding regulated contract 58. Conduct of electronic auctions 59. Procedure for closing an electronic auction 60. Action to be taken by contracting entity when tenders are abnormally low CHAPTER 4 Tenders comprising products originating in third countries 61. Tenders comprising products originating in third countries 62. Responsibility of Minister to inform European Commission of difficulties with third countries as regards regulated contracts PART 10 RULES GOVERNING DESIGN CONTESTS FOR SERVICE SUPPLY CONTRACTS 63. Design contests to which this Part applies 64. Design contests excluded from this Part 65. Responsibilities of contracting entity in organising a design contest 66. Rules on advertising and transparency of the European Commission 67. Means of communication applicable to design contests 68. Rules concerning organisation of design contests, selection of participants and the jury 69. Decisions of the jury PART 11 MISCELLANEOUS PROVISIONS 70. Minister's responsibilities under these Regulations 71. Revision of the thresholds 72. Amendments 73. Compliance mechanisms 74. Revocation of existing Regulations 75. Transitional arrangement SCHEDULES SCHEDULE 1 - LIST OF ACTIVITIES FOR WORKS CONTRACTS SCHEDULE 2 - INFORMATION TO BE INCLUDED IN CONTRACT NOTICE SCHEDULE 3 - NOTICES ON THE EXISTENCE OF A QUALIFICATION SYSTEM SCHEDULE 4 - PERIODIC INDICATIVE NOTICES SCHEDULE 5 - INFORMATION TO BE INCLUDED IN THE CONTRACT AWARD NOTICE SCHEDULE 6 - SERVICES SCHEDULE 7 - INFORMATION TO BE INCLUDED IN DESIGN CONTEST NOTICE SCHEDULE 8 - INFORMATION TO BE INCLUDED IN THE RESULTS OF DESIGN CONTEST NOTICES SCHEDULE 9 - FEATURES CONCERNING PUBLICATION SCHEDULE 10 -DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS SCHEDULE 11 - SUMMARY TABLE OF THE TIME-LIMITS PRESCRIBED BY REGULATION 47 SCHEDULE 12 - INTERNATIONAL LABOUR LAW PROVISIONS REFERRED TO IN THE REGULATIONS SCHEDULE 13 - REQUIREMENTS RELATING TO DEVICES FOR THE ELECTRONIC RECEIPT OF TENDERS, REQUESTS TO PARTICIPATE, APPLICATIONS FOR QUALIFICATION AS WELL AS PLANS AND PROJECTS IN CONTESTS SCHEDULE 14 -REQUESTS CONCERNING EXEMPTIONS UNDER REGULATION 23 I, Brian Cowen, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) as amended by the European Communities (Amendment) Act 1973 (No. 25 of 1993), and for the purpose of giving effect to Directive 2004/17/EC of the European Parliament and the Council, dated 31 March 2004 (as amended by Directive 2005/51/EC, dated 7 September 2005) hereby make the following regulations: PART 1 PRELIMINARY PROVISIONS Citation and commencement 1.

(1)These Regulations may be cited as the European Communities (Award of Contracts by Utility Undertakings) Regulations 2007.
(2)These Regulations come into operation on the day after the date on which their publication is notified in the Iris Oifigiúil. Object of these Regulations 2. The object of these Regulations is to give effect to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 on the co-ordination of procurement procedures of entities operating in the water, energy, transport and postal services sectors (as amended by Directive 2005/51/EC of 7 September 2005). Interpretation 3.
(1)In these Regulations— “the Advisory Committee” means the Advisory Committee for Public Contracts set up by Article 1 of Decision 71/306/EEC; “the Government Procurement Agreement” means the Agreement on Government Procurement entered into in the framework of the Uruguay Round multilateral negotiations; “assess” includes examine; “associated document”, in relation to a regulated contract, includes a contract notice, contract document or additional document that is associated with the contract; “bus” includes motor bus and trolley bus; “buyer profile”, in relation to a contracting entity, means the entity's buyer profile as described in Schedule 9; “call for competition notice” means a notice, published in accordance with Schedule 9, that is used as a means of calling for competition; “candidate” means an economic operator that has sought an invitation to participate in a restricted or negotiated procedure for the award of a contract; “central purchasing body” means a contracting authority that— (
  1. a)acquires products or services, or products and services, for one or more contracting entities, or (
  2. b)awards contracts, or enters into framework agreements, to carry out works, or to supply products or a service, for one or more such entities; “Common Procurement Vocabulary” means the reference nomenclature applicable to contracts as adopted by Regulation (EC) No. 2195/2002, while ensuring equivalence with the other existing nomenclatures; “concessionaire”, in relation to a works concession contract, means the person to whom the contract is awarded; “contracting authority” means the State, a local authority or a public authority, or an association comprising one or more local authorities or public authorities, or local authorities and public authorities; “contracting entity” means— (
  3. a)a contracting authority, or (
  4. b)a public undertaking, or (
  5. c)a private sector entity engaged in a prescribed activity under a special or exclusive right granted by the relevant competent authority of a Member State; “contractor” means a person, or a group of persons, that carries out or offers to carry out works or a particular kind of work on a commercial basis; “corruption” has the meaning given by Article 3 of the Council Act of 26 May 1997 and Article 3
(1)of Council Joint Action 98/742/JHA respectively; “design contest” means such procedure as enables the contracting entity to acquire (mainly in the fields of town and country planning, architecture and engineering or data processing a plan or design selected by a jury after being put out to competition with or without the award of a prize; “dynamic purchasing system”, in relation to a contracting entity, means a completely electronic process for buying commonly used items that are generally available on the market, being a process the characteristics of which meet the requirements of the contracting entity and that— (a) is limited in duration, and (b) is open throughout its validity to any economic operator that satisfies the selection criteria and has submitted an indicative tender that complies with the relevant specifications; “dominant influence” has the meaning given by paragraph
(2); “economic operator” means a person, or a group of persons, that is a contractor, product supplier or service supplier; “electronic auction” means a repetitive process that involves the use of an electronic device by means of which tenderers present new prices (revised downwards), or new values concerning certain elements of tenders, or both, occurs after an initial full evaluation of the tenders and so enabling them to be ranked by the use of automatic evaluation methods; “electronic means” means using electronic equipment for the processing (including digital compression) and storage of data that is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; “excluded contract” means a contract excluded from the operation of these Regulations by a provision of Part 3; “framework agreement” means an agreement between one or more contracting entities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a specified period, including the terms relating to price and, where relevant, the quantity of items to be supplied; “fraud” has the meaning given by Article 1 of the Convention relating to the protection of the financial interests of the European Communities;1 “Group Consolidated Accounts Directive” means Directive 83/349/EEC on the preparation of consolidated accounts for undertakings that are part of a group; “land” includes all buildings and structures constructed on land; “law” includes Act or statutory instrument; “local authority” means a local authority for the purposes of the Local Government Act 2001; “Minister” means the Minister for Finance; “money laundering” has the same meaning as in Article 1 of Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering; “negotiated procedure” means a procedure under which the relevant contracting party consults the economic operators of its choice and negotiate the terms of contract with one or more of those operators; “open procedure” means a procedure under which any interested economic operator may submit a tender; “periodic indicative notice” means a notice to which Regulation 43 applies; “postal item” means an item addressed in the final form in which it is to be carried irrespective of weight, and includes (but is not limited to) an item of correspondence, a book, catalogue, newspaper, or periodical and a postal package containing merchandise with or without commercial value, irrespective of weight; “post-related service” means any of the following: (a) a mail service management service (which includes a service preceding or subsequent to despatch, such as a mailroom management services); (b) an added-value service linked to, and provided entirely by, electronic means (including the secure transmission of coded documents by electronic means address management services, and transmission of registered electronic mail); (c) a service involving the transmission of postal items not included in point (a), such as direct mail bearing no address; (d) a financial service (as referred to in category 6 of Part A of Schedule 6 and in Regulation 20
(1)(
  1. c)and (d), including the sale of postal money orders and making postal giro transfers; (
  2. e)a philatelic service; (
  3. f)a logistical service that combines physical delivery or warehousing (or both) with other non-postal functions; “prescribed activity” means an activity to which these Regulations apply by virtue of a provision of Part 2; “prescribed civil engineering activities” means civil engineering activities of a kind listed in Schedule 1; “prescribed criminal organisation” has the same meaning as in Article 2
(1)of Council Joint Action 98/733/JHA; “prescribed postal service” means a service comprising the clearance, sorting, routing and delivery of postal items, and includes— (
  1. a)any reserved postal service that is or can be reserved on the basis of Article 7 of Directive 97/67/EC, and (
  2. b)any postal service that cannot not be reserved on the basis of that Article; “prescribed service” means a service of a kind to which Schedule 6 applies; “product” means movable personal property of any kind and, in particular, includes goods and any kind of material, and a document, a vessel and an aircraft; “product supplier” means a person who supplies or offers to supply one or more kinds of products on a commercial basis; “product supply contract” means a regulated contract (other than a works contract) the object of which is the purchase, lease, hire or hire purchase of one or more kinds of product, and includes such a contract that, incidentally, involves siting or installing works; “public transport network” means one or more transport services provided to the public by a contracting entity; “public undertaking” means an undertaking over which a contracting entity may exercise directly or indirectly, a dominant influence because of— (
  3. a)its ownership of the undertaking, or (
  4. b)its financial participation in the undertaking, or (
  5. c)the rules that govern the undertaking; “Public Authorities Contracts Directive” means Directive 2004/18/EC, dated 31 March 2004 of the European Parliament and of the Council; “public authority” means any body that— (
  6. a)is established by or under a law of the State for a public purpose, and (
  7. b)does not have an industrial or commercial character, and (
  8. c)is— (
  9. i)financed wholly or partly by the State, or by a local authority or another public authority, or (
  10. ii)managed or supervised by the State, or by a local authority or another public authority, or (iii) governed by a board, more than half of whose members are appointed by the State, or by a local authority or another public authority; “Public Utilities Contracts Directive” means Directive 2004/17/EC, dated 31 March 2004, of the European Parliament and of the Council; “quarter” means the period of 3 months ending on 31 March, 30 June, 30 September or 31 December; “regulated contract” means a contact to which these Regulations apply; “relevant competent authority”— (
  11. a)for a contracting entity engaged in carrying on any of the activities referred to in Chapter 1 of Part 2, means the Minister, or an authority that, in accordance with a law of the State, is responsible for performing supervisory or regulatory functions in relation to that entity,1 and (
  12. b)for a contracting entity engaged in carrying on any of the activities referred to in that Chapter in another Member State, means the authority of that other State that in accordance with a law of that other State, is responsible for performing supervisory or regulatory functions in relation to that entity; “restricted procedure” means a procedure under which— (
  13. a)any economic operator may ask to participate, and (
  14. b)only those economic operators invited by the relevant contracting entity may submit a tender; “Rome Treaty” means the Rome Treaty by which the European Community was established as amended by subsequent European Treaties; “sent to the European Commission for publication” means sent to the European Commission for publication in the Official Journal of the European Union; “service supplier” means a person or group of persons who supplies or offers to supply one or more services on a commercial basis; “service concession contract” means a regulated contract of the same kind as a service supply contract except that the consideration to be given for supplying the relevant service consists either solely in the right to exploit the service or in that right together with the payment of money; “service supply contract” means a regulated contract (other than a works or product supply contract) the object of which is to supply a service, and includes— (
  15. a)a contract the object of which is to supply both a product and a prescribed service so long as the value of the service exceeds that of the product, and (
  16. b)a contract that relates to an activity of the kind listed in Schedule 6, and (
  17. c)a contract that relates to an activity of the kind listed in Schedule 1 so long as the activity is incidental to the main object of the contract; “special or exclusive rights” mean rights granted by the relevant competent authority under a any legislative, regulatory or administrative provision that— (
  18. a)has the effect of restricting carrying out specified activities to one or more entities and (
  19. b)substantially affects the ability of other entities to carry out such activity; “technical specifications” has the meaning given by Schedule 10; “tenderer” means an economic operator that has submitted a tender; “third country” means a country or territory other than a Member State; “transport” includes transport by railway, tramway, bus, cable or an automated system; “works” or “work” means the outcome of building or civil engineering works that, when taken as a whole, is sufficient of itself to fulfil an economic or technical function; “works concession contract” means a regulated contract of the same kind as a works contract except that the consideration to be provided for carrying out the work under the contract consists only of— (
  20. a)the right to exploit the work, or (
  21. b)that right together with the payment of money; “works contract” means a regulated contract the object of which is the construction, or the design and construction, of— (
  22. a)works related to one or more of the activities listed in Schedule 1, or (
  23. b)a work, or the realisation, by whatever means, of a work corresponding to requirements specified by the contracting entity concerned.
(2)A contracting entity is presumed to have a dominating influence over an undertaking for the purposes of these Regulations if the entity, directly or indirectly— (
  1. a)holds more than half of the undertaking's subscribed share capital, or (
  2. b)controls more than half of the votes attaching to shares issued by the undertaking, or (
  3. c)can appoint more than half of the members of the undertaking's governing body.
(3)The NACE and CPC nomenclatures respectively take precedence if interpretations of the scope of these Regulations vary because of possible differences— (
  1. a)between the CPV and NACE nomenclatures listed in Schedule 1, or (
  2. b)between the CPV and CPC (provisional version) nomenclatures listed in Schedule 6.
(4)Unless the context otherwise requires or these Regulations otherwise provide, a word or expression that is used in these Regulations and in the Public Utility Contracts Directive has in these Regulations the same meaning as it has in that Directive.
(5)Notes appearing in the text are provided for information only and do not form part of these Regulations. Application of these Regulations
  1. These Regulations apply to contracts in writing (other than excluded contracts) entered into or to be entered into between a contracting entity and an economic operator under which the operator undertakes to carry out works for, or to supply a kind of product or service to the entity relating to an activity described in Chapter 1 of Part
  2. PART 2 ACTIVITIES TO WHICH THESE REGULATIONS APPLY CHAPTER 1 Procurement procedures relating to certain specified activities Procurement procedures for suppliers of gas, heat and electricity services 5.
(1)These Regulations apply to the procurement procedures of a contracting entity that is engaged in— (
  1. a)the provision or operation of a fixed network intended to provide a service to the public in connection with the production, transport or distribution of gas or heat, or (
  2. b)the supply of gas or heat to networks.
(2)However, the supply of gas or heat by a contracting entity is not an activity to which these Regulations apply if— (
  1. a)the entity is not a contracting authority and supplies the gas or heat to a network that provides a service to the public, and (
  2. b)the production of gas or heat by the entity is the unavoidable consequence of carrying out an activity other than a prescribed activity, and (
  3. c)the supply to the network is aimed only at the economic exploitation of the entity's production and constitutes no more than 20 per cent of the entity's turnover, having regard to the average for the preceding 3 years (including the current year).
(3)Without limiting paragraph
(1), these Regulations apply to— (
  1. a)the provision or operation of a fixed network intended to provide a service to the public in connection with the production, transport or distribution of electricity, and (
  2. b)the supply of electricity to the network.
(4)The supply of electricity by a contracting entity is not an activity to which these Regulations apply if— (
  1. a)the entity is not a contracting authority and supplies the electricity to a network that provides a service to the public, and (
  2. b)the production of electricity by the entity is needed in order to enable the entity to carry out an activity other than a prescribed activity, and (
  3. c)the supply to the public network depends only on the entity's own consumption and has not exceeded 30 per cent of the entity's total production of energy, having regard to the average for the immediately preceding 3 years (including the current year). Procurement procedures for suppliers of water supply services 6.
(1)These Regulations apply to the procurement procedures of a contracting entity that is engaged in— (
  1. a)the provision or operation of a fixed network intended to provide a service to the public in connection with the production, transport or distribution of drinking water, or (
  2. b)the supply of drinking water to such a network.
(2)These Regulations also apply to a contract or design contest awarded or organised by an entity that carries on an activity referred to in paragraph
(1)but only if the contract or contest is connected with— (
  1. a)a hydraulic engineering, irrigation or land drainage project and the volume of water to be used to supply drinking water represents more than 20 per cent of the total volume of water made available by the project, or (
  2. b)the disposal or treatment of sewage.
(3)The supply of drinking water by a contracting entity is not an activity to which these Regulations apply if— (
  1. a)the entity is not a contracting authority and supplies the water to a network that provides a service to the public, and (
  2. b)the production of drinking water by the entity arises because it is needed to enable the entity to carry out an activity other than an activity to which these Regulations apply, and (
  3. c)supply to the network depends only on the entity's own consumption and that supply has not exceeded 30 per cent of the entity's total production of drinking water, having regard to the average for the immediately preceding 3 years, including the current year. Procurement procedures for suppliers of transport services 7.
(1)These Regulations apply to activities relating to the provision or operation of a network that provides a transport service to the public.
(2)A network is taken to exist in relation to a transport service referred to in paragraph
(1)if the service is provided under operating conditions prescribed by the relevant competent authority, such as— (
  1. a)the conditions on the routes to be served, or (
  2. b)the capacity to be provided, or (
  3. c)the frequency of the service.
(3)These Regulations do not apply to a contracting entity that provides a bus service to the public if other contracting entities are free to provide such a service to the public within a general or particular geographic area under the same conditions as the entity. Procurement procedures for suppliers of postal services 8. These Regulations apply to the procurement procedures of a contracting entity that is engaged in an activity relating to the provision of— (
  1. a)a prescribed postal service, or (
  2. b)a post-related service, but only if the entity that the provides the service also provides a prescribed postal service and the conditions specified in Regulation 23 are not satisfied in respect of that postal service. Procurement procedures for entities engaged in exploration for, or extraction of, oil gas, coal or other solid fuels 9. These Regulations apply to the procurement procedures of a contracting entity that is engaged in an activity relating to the exploitation of a geographical area for the purposes of exploring for or extracting oil, gas or coal or any other kind of solid fuel. Procurement procedures of port and airport operators 10. These Regulations apply to the procurement procedures of a contracting entity that is engaged in an activity relating to the exploitation of a geographical area for the purposes of the provision of an airport, a maritime or inland port or any other kind of terminal facility to carriers by air, sea or inland waterway. CHAPTER 2 Multiple activities Contracts covering several activities 11.
(1)A regulated contract that involves several activities is subject to the rules applicable to the activity for which it is principally intended. However, a decision whether to award a single contract or a number of separate contracts may not be made with the objective of excluding the contract from the scope of these Regulations or, if applicable, the European Communities (Award of Public Authorities Contracts) Regulations 2006 (S.I. No. 329 of 2006).
(2)If— (
  1. a)one of the activities for which a regulated contract is intended is subject to these Regulations and another is within the scope of the European Communities (Award of Public Authorities Contracts) Regulations 2006 and (
  2. b)it is not objectively possible to determine for which activity the contract is principally intended, the contract must be awarded in accordance with the European Communities (Award of Public Authorities Contracts) Regulations 2006.
(3)If— (
  1. a)one of the activities for which a regulated contract is intended within the scope of these Regulations and another is not within the scope of either these Regulations or the European Communities (Award of Public Authorities Contracts) Regulations 2006, and (
  2. b)it is not objectively possible to determine for which activity the contract is principally intended, the contract must be awarded in accordance with these Regulations. CHAPTER 3 Contract thresholds Threshold amounts for contracts 12.
(1)These Regulations apply to contracts that are not excluded in accordance with the exceptions provided for in Part 3 and that have a value (exclusive of value-added tax estimated to be equal to or greater than the following thresholds: (
  1. a)€5,278,000 for a works contract; (
  2. b)€422,000 for a product supply contract or service supply contract. Methods for calculating the estimated value of contracts, framework agreements and dynamic purchasing systems 13.
(1)The calculation of the estimated value of a regulated contract is to be based on the total amount payable (net of value added tax) as estimated by the contracting entity and must take account of the estimated total amount, including any form of option and any renewal of the contract.
(2)The estimate must be valid— (
  1. a)when the contract notice is sent, as provided for in Regulations 43 and 44, or (
  2. b)if such a notice is not required, when the contracting entity begins the contract award procedure.
(3)A contracting entity shall take into account any prizes or payments that it gives to candidates or tenderers when calculating the estimated value of a contract.
(4)A contracting entity shall not subdivide a works project, or a proposed purchase of a specified quantity of a product or a specified service, in order to prevent the project or purchase from coming within the scope of these Regulations.
(5)In calculating the estimated value of the works contract, a contracting entity shall take account of both the cost of the works and the total estimated value of the products necessary to carry out the works.
(6)The value of products or services that are not necessary for carrying out a particular works contract may not be added to the value of the works contract if to do so would result in removing the procurement of those products and services from the scope of these Regulations.
(7)If a proposed work or purchase of services may result in contracts being awarded at the same time in the form of separate lots, the contracting entity shall take account of the total estimated value of all the lots.
(8)Subject to paragraph
(9), these Regulations apply to the awarding of each lot if the aggregate value of all of the lots is equal to or exceeds the threshold specified in Regulation 12.
(9)The contracting entity concerned may decide that these Regulations should not apply in respect of lots if the estimated value of which (net of value added tax) is less than €80,000 for supplying a service, or €1,000,000 for carrying out works, so long as the aggregate value of those lots does not exceed 20 per cent of the aggregate value of all of the lots.
(10)If a contracting entity proposes to acquire products of a similar kind and the acquisition could result in contracts being awarded at the same time in the form of separate lots, the entity shall take account of the total estimated value of all the lots when applying Regulation 12. Subject to paragraph
(11), these Regulations apply to the awarding of each lot if the aggregate value of all of the lots is equal to or exceeds the threshold specified in Regulation 12.
(11)The contracting entity concerned may decide that these Regulations should not apply in respect of lots if the estimated value of which (net of value added tax) is less than €80,000 for supplying products, so long as the aggregate value of those lots does not exceed 20 per cent of the aggregate value of all of the lots.
(12)If a product supply contract relates to the leasing, hire, rental or hire purchase of a product for a fixed term, the value to be taken as a basis for calculating the estimated contract value is— (
  1. a)if the term of the contract is 12 months or less, the total estimated value for that term, or (
  2. b)if the term of the contract is longer than 12 months, the total value including the estimated residual value.
(13)If a product supply contract relates to the leasing, hire, rental or hire purchase of a product that is for a term that is not fixed or that cannot be ascertained, the value to be taken as a basis for calculating the estimated contract value is the monthly value multiplied by 48.
(14)If a product supply contract, or a service supply contract, that is regular in nature or the supplies or services concerned are procured on a continuing basis, the contracting entity shall base the estimated contract value on the following: (
  1. a)either the total actual value of the successive contracts of the same kind awarded during the preceding 12 months, or the preceding financial year adjusted (as far as possible) to take account of changes that can be anticipated in the quantity or value of products or services to be supplied as compared with those delivered under the initial contract during the preceding 12 months, or preceding financial year, or (
  2. b)the total estimated value of the successive contracts awarded during the 12 months following the first supply of a product or service under the contract or if the financial year of the entity is longer than 12 months, during that financial year.
(15)A contracting entity may not choose the method to be used to calculate the estimated value of a regulated contract with the intention of excluding the contract from the scope of these Regulations.
(16)In calculating the estimated contract value of a service supply contract, a contracting entity shall, so far as relevant, take the following into account: (
  1. a)if the contract is for supply of insurance, the premium and other forms of remuneration payable for the insurance; (
  2. b)if the contract is for a financial service (such as banking), all fees commissions, interest and other kinds of remuneration payable for the service; (
  3. c)if the contract involves undertaking design tasks, all fees, commissions and other forms of remuneration payable for those tasks.
(17)A contracting entity shall use the following as a basis for calculating the estimated value of a service supply contract that is for a fixed term but does not specify or provide for a total price: (
  1. a)if the contract is for a fixed term of 48 months or less, the total value for the full term; (
  2. b)if the contract is for a fixed term of longer than 48 months or no term is fixed, the monthly value multiplied by 48.
(18)A contracting entity shall, in relation to a framework agreement or dynamic purchasing system, take into account the maximum estimated value, net of value added tax of all the contracts envisaged for the total period that the agreement or system will remain in operation. PART 3 CONTRACTS TO WHICH THESE REGULATIONS DO NOT APPLY CHAPTER 1 Exclusions Regulations not to apply to certain works and service concessions 14. These Regulations do not apply to a works concession contract or a service concession contract if the contract is awarded by a contracting entity that carries out a prescribed activity and the concession is awarded for carrying out the activity. Contracts awarded for purposes of resale or lease to third parties 15.
(1)These Regulations do not apply to a contract awarded by a contracting entity for purposes of reselling or leasing the subject of the contract to a third party if— (
  1. a)the entity enjoys no special or exclusive right to sell or lease that subject and (
  2. b)economic operators are free to sell or lease that subject-matter under the same conditions as the entity.
(2)If requested to do so by the European Commission, a contracting entity shall notify the Commission of all the categories of products or activities that the entity regards as being excluded under paragraph
(1). Contracts awarded for purpose other than carrying out a prescribed activity or for carrying out a prescribed activity in a third country 16.
(1)These Regulations do not apply to a contract that a contracting entity awards for a purpose other than carrying out a prescribed activity or in carrying out such an activity in a third country in conditions not involving the physical use of a network or geographical area within the European Community.
(2)If requested to do so by the European Commission, a contracting entity shall notify the Commission of any activity that the entity regards as being excluded under paragraph
(1). Contracts that are secret or require special security measures 17. These Regulations do not apply to a contract if the performance of the contract is required to be accompanied by special security measures in accordance with a law or an administrative provision of the State. Contracts awarded under international rules 18.
(1)These Regulations do not apply to a contract awarded— (
  1. a)under a relevant international agreement, or (
  2. b)under an agreement relating to the stationing of armed forces, or (
  3. c)in accordance with the particular procedure of an international organisation, if the contract is governed by procedural rules different from those prescribed by these Regulations.
(2)The Minister shall ensure that all relevant international agreements are notified to the European Commission.
(3)For the purposes of this paragraph, an agreement is a relevant international agreement if it— (
  1. a)is entered into between the State and the governments of one or more third countries, and (
  2. b)covers— (
  3. i)carrying out works, or supplying a product or service, or conduct of design contests intended for the joint implementation or exploitation of a work by the State and those governments, or (
  4. ii)supplying a service intended for the joint implementation or exploitation of a project by the State and those governments, and (
  5. c)accords with the Rome Treaty. Contracts awarded to an affiliated undertaking, to a joint venture or to a contracting entity forming part of a joint venture 19.
(1)For the purposes of this Regulation, “affiliated undertaking”, in relation to a contracting entity, means— (
  1. a)any undertaking the annual accounts of which are consolidated with those of the entity in accordance with the requirements of the Group Consolidated Accounts Directive, or (
  2. b)if the entity is not subject to that Directive— (
  3. i)any undertaking over which the entity may exercise, directly or indirectly, a dominant influence, or (
  4. ii)any undertaking that may exercise a dominant influence over the entity, or (iii) any undertaking that, in common with the entity, is subject to the dominant influence of another undertaking by virtue of ownership financial participation, or the rules that govern it.
(2)These Regulations do not apply to a works contract if the contract is awarded or to be awarded— (
  1. a)by a contracting entity to an affiliated undertaking, or (
  2. b)by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out prescribed activities, to an undertaking that is affiliated with one of these contracting entities, and at least 80 per cent of the average turnover of the affiliated undertaking with respect to works for the preceding 3 years is derived from carrying out works for undertakings with which it is affiliated.
(3)These Regulations do not apply to a product supply contract to supply a product if the contract is awarded or to be awarded— (
  1. a)by a contracting entity to an affiliated undertaking, or (
  2. b)by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out prescribed activities, to an undertaking that is affiliated with one of those contracting entities, and at least 80 per cent of the average turnover of the affiliated undertaking with respect to the supply of the product for the preceding 3 years is derived from supply to undertakings with which it is affiliated.
(4)These Regulations do not apply to a service supply contract if the contract is awarded or to be awarded— (
  1. a)by a contracting entity to an affiliated undertaking, or (
  2. b)by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out prescribed activities, to an undertaking that is affiliated with one of those contracting entities, and at least 80 per cent of the average turnover of the affiliated undertaking with respect to that kind of service for the preceding 3 years is derived from supply to undertakings with which it is affiliated.
(5)When, because of the date on which an affiliated undertaking was created or commenced activities, the turnover is not available for the preceding 3 years, it is sufficient for the undertaking to show that the turnover referred to in paragraph
(3),
(4)or
(5)is credible, for example, by means of business projections. If 2 or more undertakings affiliated with the contracting entity carry out the same or similar kinds of works, or supplies the same or similar kind of product or service, the percentage is to be calculated after taking into account the total turnover respectively derived by the undertaking from carrying out that kind of works, or supplying that kind of product or service.
(6)These Regulations do not apply to a contract that is awarded— (
  1. a)by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out prescribed activities, to one of those contracting entities, or (
  2. b)by a contracting entity to such a joint venture of which it forms part, but only if— (
  3. i)the joint venture has been established to carry out the activity concerned over a period of at least 3 years, and (
  4. ii)the document establishing the joint venture requires the contracting entities comprising the joint venture to participate in it for at least the same period.
(7)On being requested to do so by the European Commission, a contracting entity shall provide the Commission with the following information regarding the application of paragraphs
(2),
(3)and
(4): (
  1. a)the names of the undertakings or joint ventures concerned; (
  2. b)the nature and value of the contracts involved; (
  3. c)such proof as that Commission requires that the relationship between the undertaking or joint venture to which the contracts are awarded and the contracting entity complies with the requirements of this Regulation. CHAPTER 2 Exclusions applicable to service supply contracts only Contracts relating to certain services excluded from the scope of these Regulations 20.
(1)These Regulations do not apply to any of the following: (
  1. a)a contract for the acquisition of land, or a right or interest in or over land; (
  2. b)a contract for the provision of arbitration and conciliation services; (
  3. c)a contract to supply a financial service in connection with the issue, sale purchase or transfer of securities or other financial instruments; (
  4. d)a contract involving raising capital or other money by a contracting entity; (
  5. e)the supply of a service by the Central Bank and Financial Services Authority of Ireland; (
  6. f)a contract of employment; (
  7. g)a contract to supply a service involving research and development, other than such a service in relation to which the benefits accrue exclusively to a contracting entity for its use in the conduct of its own affairs, on condition that the service supplied is wholly paid for by the entity.
(2)However, a service supply contract involving the supply of a financial service that is collateral to a contract of a kind referred to in paragraph
(1)(
  1. a)is subject to these Regulations. Service supply contracts awarded on the basis of an exclusive right 21. These Regulations do not apply to a service supply contract if— (
  2. a)the contract is awarded to a contracting entity that is itself a contracting entity, and (
  3. b)the award made on the basis of an exclusive right that the entity enjoys to provide that service under a law or administrative provision that is compatible with the Rome Treaty. CHAPTER 3 Exclusions applicable to certain contracting entities Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy 22.
(1)These Regulations do not apply to a contract to supply water if the contract is awarded by a contracting entity engaged in one or both of the activities referred to in Regulation 6
(1).
(2)These Regulations do not apply to a contract to supply energy, or fuel for the production of energy, if the contract is awarded by a contracting entity that is engaged in an activity referred to in Regulation 5
(1)or
(3)or Regulation 9. Procurement procedures not to be subject to these Regulations when activity is exposed to competition 23.
(1)The procurement procedures of a contracting entity that is engaged in a prescribed activity in the State are not subject to these Regulations if the activity is directly exposed to competition on markets to which access is unrestricted.
(2)For the purpose of applying paragraph
(1), the following provisions apply: (
  1. a)the question of whether an activity is directly exposed to competition is to be decided on the basis of criteria that are in conformity with the provisions of the Rome Treaty on competition, such as— (
  2. i)the characteristics of the goods or services concerned, and (
  3. ii)the existence of alternative goods or services, and (iii) the prices, and (
  4. iv)the actual or potential presence of more than one supplier of those goods or services; (
  5. b)access to a market is taken not to be restricted if the European Community legislation specified in Annex XI to the Public Utility Contracts Directive has been implemented and applied in or in relation to the State.
(3)If free access to a particular market cannot be presumed on the basis of paragraph
(2)(b), it must be shown that access to that market in question is free both in fact and in law.
(4)On being satisfied that paragraph
(1)applies to a prescribed activity, a contracting entity engaged in that activity may apply in writing to the European Commission to be exempted from these Regulations with respect to that activity. The application must include— (a) all the relevant information as specified in Schedule 14, and (b) the position (if any) adopted by the relevant competent authority of the State.
(5)The procurement procedures of a contracting entity that is engaged in a prescribed activity cease to be subject to these Regulations if the European Commission— (
  1. a)has, in accordance with sub-article 6 of Article 30 of the Public Utility Contracts Directive, decided that sub-article 1 of that Article applies to the activity, or (
  2. b)has not so decided within the period allowed under sub-article 6 of that Article.
(6)The procurement procedures of a contracting entity that is engaged in a prescribed activity cease to be subject to these Regulations also if— (a) free access to a given market is to be presumed on the basis of paragraph
(2)(b), and (b) the relevant competent authority has determined that paragraph
(1)applies to the activity, and (
  1. c)the European Commission has not, within the period allowed under sub-article 6 of Article 30 of the Public Utility Contracts Directive, made a decision in accordance with that sub-article to the effect that sub-article 1 of that Article applies to the activity. PART 4 GENERAL RULES APPLICABLE TO REGULATED CONTRACTS Principles for awarding contracts 24. In awarding a regulated contract, a contracting entity shall— (
  2. a)treat all economic operators equally and without discrimination, and (
  3. b)act in a transparent way. Economic operators 25.
(1)If a tenderer or candidate for a service supply contract is, under the law of the Member State in which the tenderer or candidate is established, entitled to supply a particular service, the contracting entity may not reject the tenderer or candidate only on the ground that, under the law of the Member State in which the contract is awarded, the tenderer or candidate would be required to be either a natural person or a body corporate.
(2)If a body corporate tenders, or requests to participate in the procedure, for— (
  1. a)a works contract or a product supply contract, or (
  2. b)a product supply contract that also provides for the supply of a service or for undertaking siting and installation operations (or both), the contracting entity may require the body corporate to indicate in its tender, or in its request to participate, the names and relevant professional qualifications of the staff who would be responsible for performing the contract if it were awarded to the body corporate.
(3)A group of economic operators may submit a tender or present itself as a candidate.
(4)If a group of economic operators submits a tender or a request to participate, the contracting entity may not require the group to assume a specific legal form. However, if the entity selects the group, it may, as a condition of awarding the contract to the group, require it to assume such a form, but only if it is of the opinion that the imposition of the requirement is necessary to ensure that the contract is carried out to its satisfaction. Conditions relating to agreements concluded within the World Trade Organisation 26. In awarding a contract, a contracting entity shall, in accordance with the Government Procurement Agreement, treat economic operators established in third countries no less favourably than economic operators established in Member States. Contracting entities not to disclose confidential information 27.
(1)When providing technical specifications to interested economic operators providing for qualification and selection of economic operators and award of a contract, a contracting entity may impose requirements with a view to protecting the confidential nature of information that it will make available.
(2)When providing information to a contracting entity, an economic operator may designate as confidential information that relates to matters affecting the operator or the operator's business, such as technical or trade secrets or the confidential aspects of tenders.
(3)Except as expressly provided by these Regulations or some other law of the State a contracting entity shall not disclose information given to it by an economic operator if the operator has designated the information as being confidential. Framework agreements 28.
(1)A contracting entity may treat a framework agreement as a regulated contract. If it does so, the provisions of these Regulations relating to regulated contracts apply to it accordingly.
(2)A contracting entity that has entered into a framework agreement in accordance with these Regulations may rely on Regulation 42
(3)when awarding a regulated contract based on the agreement. A contracting entity may not rely on Regulation 42
(3)if a framework agreement has not been awarded in accordance with these Regulations.
(3)A contracting entity may not misuse a framework agreement in order to hinder limit or distort competition. Dynamic purchasing systems 29.
(1)A contracting entity may award a regulated contract by means of a dynamic purchasing system, but only as provided by this Regulation.
(2)In operating a dynamic purchasing system for awarding a regulated contract, a contracting entity shall comply with the rules prescribed for the use of an open procedure on all phases of the system up to the time when the contract is awarded. The entity shall use electronic means in accordance with Regulation 50 to operate the system and the procedure for awarding the contract.
(3)A contracting entity that operates a dynamic purchasing system shall admit to the system all tenderers who— (
  1. a)satisfy the relevant selection criteria, and (
  2. b)have submitted an indicative tender that complies with the requisite specification, together with any additional documents that the entity has required.
(4)A tenderer may improve an indicative tender at any time, but only if it continues to comply with the requisite specification.
(5)When operating a dynamic purchasing system, a contracting entity shall— (
  1. a)publish a contract notice that makes it clear that a dynamic purchasing system is involved in the contract award process and specifies the internet address at which the persons may inspect the documents referred to in subparagraph (c), and (
  2. b)indicate in the specification (among other matters) the nature of the purchases envisaged under the system, as well as all the necessary information concerning the purchasing system, the electronic equipment used and the technical connection arrangements and specifications, and (
  3. c)on publication of the notice and up to the expiry of the system, offer by electronic means unrestricted, direct and full access to the relevant specification and to any relevant additional documents.
(6)A contracting entity that operates a dynamic purchasing system shall, throughout the entire period of the dynamic purchasing system, give all economic operators the opportunity of submitting an indicative tender and of being admitted to the system under the conditions referred to in paragraphs
(2)and
(3).
(7)A contracting entity shall evaluate each indicative tender within such period, not exceeding 15 days from the date of submission of the indicative tender, as specified in the relevant contract notice. However, the entity may extend the evaluation period, but only if no invitation to tender is issued in the meantime.
(8)As soon as is practicable after completing the evaluation of the indicative tenders the contracting entity shall inform each of the tenderers concerned whether the tenderer has been admitted to the dynamic purchasing system or has had its indicative tender refused.
(9)A contracting entity shall invite tenders for each specific contract that is to be awarded by the entity. Before issuing an invitation to tender, the entity shall publish a simplified contract notice inviting all interested economic operators to submit indicative tenders, in accordance with paragraphs
(6)to
(8), within such period as is specified in the notice. The period may not be less than 15 days from the date of publication.
(10)A contracting entity may not proceed with the tendering process until it has completed the evaluation of the indicative tenders received by the deadline.
(11)A contracting entity shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded under the system. The invitation must specify a deadline for the submission of tenders.
(12)A contracting entity shall award the contract to the tenderer who submits the best tender on the basis of the award criteria specified in the contract notice for the establishment of the dynamic purchasing system. However, the entity may, if relevant, formulate those criteria more precisely in the invitation to submit tenders.
(13)The period during which a dynamic purchasing system may remain in operation may not exceed 4 years, except if determined by the contracting entity as exceptional. If that entity determines that there are exceptional circumstances justifying an extension of the period beyond 4 years, it must record the reasons for its determination.
(14)A contracting entity shall not use a dynamic purchasing system to prevent, restrict or distort competition.
(15)A contracting entity shall not charge interested economic operators or parties for access to a dynamic purchasing system operated by the entity. PART 5 RESERVED CONTRACTS AND CENTRAL PURCHASING Contracting entity may reserve award of contracts to persons employed in sheltered workshops 30.
(1)In awarding a contract, a contracting entity is entitled— (
  1. a)to reserve to sheltered workshops the right to participate in the contract award procedure, or (
  2. b)to provide for the contract to be performed in the context of a sheltered employment program, if a majority of the employees concerned are disabled persons who, because of the nature or seriousness of their disabilities, cannot carry on occupations under normal conditions.
(2)If a contracting entity decides to exercise the right conferred by paragraph
(1), it shall specify in the notice calling for competition that it is relying on this Regulation. Contracts and framework agreements awarded by central purchasing bodies 31.
(1)A contracting entity may enter into a regulated contract with or through a central purchasing body.
(2)A contracting entity that enters into a regulated contract with or through a central purchasing body is taken to have complied with these Regulations to the extent that the body has complied with these Regulations or, where relevant, the European Communities (Award of Public Authorities Contracts) Regulations
  1. PART 6 RULES APPLICABLE TO SERVICE SUPPLY CONTRACTS Service supply contracts listed in Part A of Schedule 6
  2. A contracting entity that wishes to award a service supply contract having as its object the supply of a service listed in Part A of Schedule 6 shall ensure that Parts 7 to 9 are complied with in relation to the award of the contract. Service supply contracts listed in Part B of Schedule 6
  3. The award of a service supply contract that provides for the supply of a service listed in Part B of Schedule 6 is subject only to Regulations 35 and
  4. Mixed service supply contracts for services listed in both Parts A and B of Schedule 6 34.
(1)A contracting entity shall ensure that Parts 7 to 9 are complied with in relation to the award of a service supply contract that comprises the supply of a service listed in both Parts A and B of Schedule 6 if the value of the service listed in Part A of that Schedule is greater than the value of the service listed in Part B of that Schedule.
(2)In awarding any other kind of service supply contract, a contracting entity shall ensure that Regulations 35 and 45 are complied with. PART 7 MATTERS TO BE SPECIFIED IN CONTRACT OR ASSOCIATED DOCUMENTS Technical specifications 35.
(1)When entering into a contract, a contracting entity shall ensure that the relevant technical specifications are specified in the contract or in an associated document.
(2)A contracting entity shall, as far as practicable, ensure that the technical specifications for a works contract take account of the need to prescribe accessibility criteria for all persons who are likely to use the works on completion, especially those who have disabilities.
(3)A contracting entity shall ensure that technical specifications for a regulated contract provide tenderers with equal access to the award process and do not hinder competition among potential tenderers.
(4)A contracting entity may specify that a product bearing an eco-label is presumed to comply with the technical specifications prescribed by the contract or an associated document in accordance with Regulation 36
(9). However, the entity shall accept any other appropriate means of proof, such as a technical dossier of the manufacturer or a test report from a recognised body.
(5)A contracting entity shall accept a certificate issued by a recognised body established in another Member State.
(6)Unless it considers that the subject-matter of the contract justifies otherwise, a contracting entity shall ensure that technical specifications do not refer to— (
  1. a)a specific make or source, or (
  2. b)a particular process, or (
  3. c)a specific trade mark, patent or type, or a specific origin or production, if to do so would have the effect of favouring or eliminating a particular undertaking or product. However, a contracting entity may include such a reference in an exceptional case but only if a sufficiently precise and intelligible description of the subject-matter of the contract is not possible. Each reference under this paragraph must be accompanied by the words “or equivalent”.
(7)In this Regulation, “recognised body” means a test and calibration laboratory, or a certification and inspection body, that complies with the relevant European standards. Formulation of technical specifications 36.
(1)Subject to this Regulation, the contracting entity shall ensure that the technical specifications for a regulated contract are formulated— (
  1. a)by reference to technical specifications and, in order of preference— (
  2. i)to national standards transposing European standards, or (
  3. ii)to European technical approvals, (iii) to common technical specifications, or (
  4. iv)to international standards, or (
  5. v)to other technical reference systems established by the European standardisation bodies, or (
  6. b)in terms of performance or functional requirements, which may include environmental characteristics, or (
  7. c)in terms of performance or functional requirements, with reference to specifications of the kind referred to in subparagraph (
  8. a)as a means of presuming conformity with those requirements, or (
  9. d)by reference to specifications of the kind referred to in subparagraph (
  10. a)for certain characteristics, and by referring to the performance or functional requirements of the kind referred to in subparagraph (
  11. b)for other characteristics.
(2)If there are no standards, approvals, specifications or systems of the kind referred to in subparagraph
(1)(a), the technical specifications may be formulated by reference to national standards, national technical approvals or national technical specifications relating to the design, calculation and construction of the relevant works, or the use of the relevant product.
(3)Each reference under paragraph
(1)(a) must be accompanied by the words “or equivalent”.
(4)If environmental characteristics are required, the contracting entity shall ensure that those characteristics are specified with sufficient precision to allow tenderers to determine the subject-matter of the contract and to allow the contract to be awarded. However, that entity may formulate the technical specifications for a regulated contract by reference to the specifications referred to in paragraph
(1).
(5)This Regulation does not affect the operation of mandatory national technical rules to the extent that they are compatible with European Community law.
(6)A contracting entity that chooses the option referred to in paragraph
(1)(a) may not reject a tender on the ground that the product or service for which tenders have been invited do not comply with the technical specifications to which the entity has referred to if the tenderer, by appropriate means, proves to the satisfaction of the entity that the solutions that the tenderer proposes in the tender satisfy in an equivalent manner the requirements of those technical specifications.
(7)A contracting entity that chooses the option referred to in paragraph
(1)(
  1. b)may not reject a tender that complies with— (
  2. a)a national standard transposing a European standard, or (
  3. b)a European technical approval, or (
  4. c)a common technical specification, or (
  5. d)an international standard, or a technical reference system, established by a European standardisation body, if those specifications address the performance or functional requirements that the entity has prescribed.
(8)In submitting a tender for a regulated contract for which the contracting entity has chosen the option referred to in paragraph
(1)(b), the tenderer shall, by appropriate means satisfy the contracting entity that the works, product or service complies with the requisite standard, system, approval or specification and so meets the performance or functional requirements of that entity.
(9)A contracting entity that prescribes environmental characteristics in terms of performance or functional requirements as referred to in paragraph
(1)(
  1. b)may use the detailed specifications, or (if necessary) a part of those specifications, as defined by European or multi-national eco-labels, or by any other eco-label, but only if— (
  2. a)those specifications are appropriate to define the characteristics of the product or service to which the contract relates and are accessible to all interested parties, and (
  3. b)the requirements for the label are drawn up on the basis of scientific information, and (
  4. c)the eco-labels are adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations can participate.
(10)In this Regulation, “by appropriate means” includes (but is not limited to) by means of a technical dossier of the manufacturer (if any) or a test report from a recognised body. Communication of technical specifications 37.
(1)A contracting entity that has put out a regulated contract for tender shall, on request, make available to those economic operators that are interested in tendering for the contract— (
  1. a)the technical specifications that are regularly referred to in its works, supply or service supply contracts, or (
  2. b)the technical specifications that it intends to apply to contracts covered by periodic indicative notices.
(2)If the technical specifications for a regulated contract are based on documents available to interested economic operators, the inclusion of a reference to those documents suffices. Tenderers may submit variants 38.
(1)If a regulated contract is to be awarded on the basis of the most economically advantageous tender, the contracting entity may authorise tenderers for the contract to submit variants.
(2)The contracting entity shall specify in the tender documentation whether or not variants are authorised. A tenderer may submit a variant only if the tender documentation specifically authorises variants.
(3)A contracting entity that authorises variants shall state in the contract documents the minimum requirements to be met by the variants and any specific requirements for their presentation.
(4)In awarding a contract, a contracting entity may take into consideration only variants that satisfy the minimum requirements specified in the relevant contract documents.
(5)A contracting entity that has authorised variants in relation to the award of a product supply contract or a service supply contract may not reject a variant submitted by a tenderer only because the variant would, if successful, result in the award of a service supply contract instead of a product supply contract or a product supply contract instead of a service supply contract. Contracting entity can ask tenderers to specify their intentions with respect to subcontracting
  1. In the contract documents given to tenderers for a regulated contract, the contracting entity is entitled to ask each tenderer to specify in its tender whether it intends to subcontract any share of the contract to subcontractors should the contract be awarded to it. The specification of such an intention does not affect the successful tenderer's primary liability under the contract. Conditions for performance of contracts
  2. A contracting entity may prescribe special conditions for the performance of a regulated contract that is to be awarded by the entity, so long as the conditions are compatible with European Community law and are specified in the relevant contract notice or contract specifications. Those conditions or specifications may deal with social and environmental matters as well as with other matters. Obligations relating to taxes, environmental protection, employment protection provisions and working conditions 41.
(1)A contracting entity that proposes to award a works contract or a service supply contract shall specify in the contract documents the persons from whom a candidate or tenderer can obtain information about the obligations that are to apply during the performance of the contract as regards taxation, environmental protection, employment protection and working conditions. This paragraph does not affect the operation of Regulation 60 regarding the examination of abnormally low tenders.
(2)The contracting entity— (
  1. a)shall require the candidates or tenderers concerned to state that, in preparing their tenders for the contract, they have taken account of the obligations relating to employment protection and working conditions that are in force in the place where the works are to be carried out or the service is to be supplied, and (
  2. b)shall disregard the tender of any tenderer that fails to comply with that requirement. CHAPTER 9 Procedures for awarding contracts Use of open, restricted and negotiated procedures 42.
(1)When awarding a contract, a contracting entity shall apply the procedures provided for by this Chapter.
(2)A contracting entity may choose to award a regulated contract by means of an open, restricted or negotiated procedure, provided that, subject to paragraph
(3), a call for competition has been made in accordance with Regulation 44.
(3)A contracting entity may use a procedure for awarding a regulated contract without prior call for competition in the following circumstances: (
  1. a)if no tenders or no suitable tenders or no applications have been submitted in response to a procedure with a prior call for competition, but only if the initial conditions for the contract are not substantially altered; (
  2. b)if the contract is purely for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or of recovering research and development costs, and to the extent that the award of the contract will not prejudice the competitive award of subsequent contracts that have the purpose of securing a profit or of recovering research and development costs; (
  3. c)if, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract can be carried out only by a particular economic operator; (
  4. d)if the deadlines laid down for open procedures, restricted procedures and negotiated procedures with a prior call for competition cannot be complied with, but only if strictly necessary for reasons of extreme urgency brought about by events that the contracting entity could not have foreseen; (
  5. e)if, in the case of a product supply contract that provides for the original supplier to make additional deliveries of a product that are intended either as a partial replacement for the normal supply, or as an extension of the existing supply, of the product, a change of supplier would oblige the contracting entity to acquire a product that has different technical characteristics from the original product and those characteristics would be incompatible with, or result in disproportionate technical difficulties in, the effective operation and maintenance of the product; (
  6. f)if, in the case of a works contract or service supply contract, additional works or an additional service becomes necessary to enable the contract to be carried out because the work or service was, through unforeseen circumstances, not included in the project when the contract was initially awarded or first entered into, but only if the award is made to the economic operator that undertook to perform the original contract and— (
  7. i)the additional works or service cannot be technically or economically separated from the main contract without great inconvenience to the contracting entity, or (
  8. ii)the additional works or service, although separable from the performance of the original contract, is strictly necessary to enable its later stages to be completed; (
  9. g)if, in the case of a works contract, the contract has been awarded to a contractor and new works consisting of the repetition of similar works are assigned to the contractor, but only if the contract was awarded after a call for competition and the new works conform to a basic project for which the contract was awarded; (
  10. h)if, in the case of a product supply contract, the product is quoted and purchased on a commodity market; (
  11. i)if the contract is to be awarded on the basis of a framework agreement, but only if the condition referred to in Regulation 28
(2)is complied with; (
  1. j)if, in the case of a product supply contract, it is possible to obtain the product by taking advantage of a particularly advantageous situation available for a very short time at a price considerably lower than the normal market price for the product; (
  2. k)if, in the case of a product supply contract, the product can be purchased under particularly advantageous conditions— (
  3. i)from a supplier whose business is being wound up, or (
  4. ii)from the receiver or liquidator of a supplier that has been adjudicated bankrupt, or has entered into an arrangement with creditors or is subject to some other insolvency similar procedure established under a law of the State; (
  5. l)if, in the case of a service supply contract, the contract is a part of the follow-up to a design contest organised in accordance with these Regulations.
(4)The contracting entity shall, when first putting out for tender the project referred to in paragraph
(3)(g), give notice that it may assign new works consisting of a repetition of similar works to the successful contract without making prior call for competition. When applying Regulations 12 and 13, the entity shall take into consideration the total estimated cost of subsequent works.
(5)In awarding a service supply contract of the kind referred to in paragraph
(3)
(1), a contracting entity shall, in accordance with the relevant rules, award the contract either to the winner or to one of the winners of the contest. PART 8 RULES ON PUBLICATION AND TRANSPARENCY CHAPTER 1 Publication of notices Periodic indicative notices and notices on the existence of a system of qualification 43.
(1)A contracting entity that intends to award works contracts, or enter into framework agreements relating to carrying out works, within the next 12 months may make known, by means of a periodic indicative notice published either by the European Commission or by the entity on its buyer profile, the essential characteristics of those contracts or agreements, if the estimated value of the contracts or agreements is equal to or greater than the threshold specified in Regulation 12 (after taking into account Regulation 13).
(2)A contracting entity that intends to award product supply contracts, or enter into framework agreements relating to the supply of products, within the next 12 months may make known, by means of a periodic indicative notice published either by the European Commission or by the entity on its buyer profile, the estimated total value of the contracts or the agreements by product area if the total estimated value is equal to or greater than €750,000, taking into account Regulations 12 and 13. The product area is to be established by reference to the relevant CPV nomenclature.
(3)A contracting entity that intends to award service supply contracts, or enter into framework agreements relating to the supply of services, within the next 12 months may make known, either by means of a periodic indicative notice published either by the European Commission or by the entity on its buyer profile, the estimated total value of the contracts or the framework agreements in each of the categories of services listed in Part A of Schedule 6, if the estimated total value of the contracts or agreements is equal to or greater than €750,000, taking into account Regulations 12 and 13.
(4)In the case of a periodic indicative notice relating to works contracts or framework agreements for carrying out works, the contracting entity shall ensure that the notice is sent to the European Commission for publication or published on its buyer profile as soon as possible after the planning of the relevant contracts or agreements has been approved.
(5)In the case of a periodic information notice relating to product supply contracts or service supply contracts, the contracting entity shall ensure that the notice is sent to the European Commission for publication, or published on its buyer profile, as soon as possible after the beginning of the entity's financial year.
(6)Before publishing a periodic information notice on its buyer profile, a contracting entity shall, by electronic means, notify the European Commission of its intention to publish such a notice. The notification must comply with the format and procedures for sending notices as specified at the Internet address http://simap.eu.int.
(7)A contracting entity which publishes a periodic indicative notice in accordance with paragraphs
(1),
(2)and
(3)is entitled to reduce the time limits for receiving tenders as prescribed by Regulation 47
(4)and
(5).
(8)A contracting entity may publish, or arrange for the European Commission to publish, a periodic indicative notice relating to a major project without repeating information included in an earlier periodic indicative notice, provided that it is clearly pointed out that the notice is an additional one.
(9)A contracting entity that decides to establish a qualification system in accordance with Regulation 55 shall publish a notice giving details of the system as referred to in Schedule 3, indicating the purpose of the qualification system and how access to the rules concerning its operation can be obtained. If the system is for longer than 3 years, the entity shall publish the notice annually. If the system is for a shorter period, the initial notice suffices. How calls for competition can be made 44.
(1)A call for competition for the award of a regulated contract may be made— (
  1. a)by means of a periodic indicative notice that complies with Schedule 4, or (
  2. b)by means of a notice on the existence of a qualification system as referred to in Schedule 3, or (
  3. c)by means of a contract notice as referred to in Part A, B or C of Schedule 2.
(2)A call for admission to a dynamic purchasing system must be made by a contract notice as referred to in paragraph
(1)(c), but a call for competition for a regulated contract based on such a system must be by simplified contract notice as referred to in Part D of Schedule 2.
(3)When a call for competition for a regulated contract is made by means of a periodic indicative notice, the notice must— (
  1. a)refer specifically to the works, product or service to which the contract relates, and (
  2. b)indicate that the contract will be awarded by restricted or negotiated procedure without further publication of a notice of a call for competition and invite interested economic operators to express their interest in writing and (
  3. c)have been published in accordance with Schedule 9 not more than 12 months before the date on which the invitation referred to in Regulation 49
(6)is sent. The contracting entity shall also comply with the deadlines prescribed by Regulation 47. Contract award notices 45.
(1)A contracting entity that has awarded a regulated contract or entered into a framework agreement shall, within 2 months after awarding the contract or entering into the agreement, publish a contract award notice in accordance with Schedule 5 under conditions to be laid down by the European Commission in accordance with the procedure referred to in Article 68
(2)of the Public Utility Contracts Directive.
(2)A contracting entity that has entered into a framework agreement is not required to publish a notice of the results of the award procedure for a regulated contract based on that agreement.
(3)A contracting entity that awards a regulated contract that is based on a dynamic purchasing system shall send the relevant contract award notice within 2 months after the date on which it awards the contract. However, if the entity enters into a number of such contracts, it may group the contract award notices on a quarterly basis, in which case, it shall send the grouped notices within 2 months after the end of each quarter.
(4)A contracting entity that awards a research and development service contract by means of a procedure that does not call for competition may limit to the reference “research and development services” the information to be provided in accordance with Schedule 5 concerning the nature and quantity of the services to be provided under the contract.
(5)A contracting entity that awards a research and development service contract that cannot be awarded by means of a procedure that does not call for competition may limit, on grounds of commercial confidentiality, the information to be provided in accordance with Schedule 5 concerning the nature and quantity of the service to be supplied.
(6)When paragraph
(4)or
(5)applies, the contracting entity shall ensure that any information published under this Regulation is no less detailed than that contained in the notice of the call for competition.
(7)In the case of a service supply contract relating to a service listed in Part B of Schedule 6, the contracting entity shall indicate in the contract notice whether it agrees to its publication.
(8)Information provided in accordance with Schedule 5 and marked as being not intended for publication may be published only in a simplified form and in accordance with Schedule 9 for statistical purposes. Form and manner in which notices are to be published 46.
(1)A contracting entity shall ensure that every contract award notice1 that it sends to the European Commission for publication— (
  1. a)includes the information set out in Schedules 2 to 5 and, when appropriate any other information that the entity considers useful, and (
  2. b)accords with the format of standard forms adopted by the European Commission in accordance with the procedure referred to in Article 68
(2)of the Public Utility Contracts Directive.
(2)If these Regulations require a contracting entity to send a notice to the European Commission and the entity sends the notice by electronic means, the entity shall ensure that the notice complies with the format and procedures for transmission specified in Schedule 9.
(3)In sending a notice required by these Regulations, a contracting entity shall comply with the technical requirements for publication specified in Schedule 9.
(4)A contracting entity shall not send a notice unless the full text of the notice is in an official language of the European Community chosen by the entity1 .
(5)A contracting entity shall not publish within the State a contract notice or its contents before it has sent a copy of the notice for publication by the European Commission.
(6)When issuing or publishing a notice within the State, a contracting entity shall ensure that the notice specifies only— (a) information that is contained in the copy of the notice sent to the European Commission for publication or published on a buyer profile in accordance with Regulation 46
(1), and (b) the date on which that copy was sent to the European Commission for publication or was published on the entity's buyer profile.
(7)A contracting entity shall ensure that the content of a notice not sent by electronic means in the format and procedures for transmission specified in Schedule 9 does not exceed 650 words.
(8)A contracting entity shall ensure that it is able to provide proof of the dates on which copies of notices were sent to the European Commission for publication.2
(9)A contracting entity may send for publication in the Official Journal of the European Union a copy of a notice of a regulated contract even if its publication under these Regulations is not mandatory. CHAPTER 2 Time limits Deadline for the receipt of requests to participate and for the receipt of tenders 47.
(1)When fixing the deadline for the receipt of tenders or requests to participate in an award of a regulated contract, a contracting entity shall take particular account of the complexity of the contract and the time needed for drawing up tenders, but without affecting the deadlines prescribed by this Regulation.
(2)In awarding a regulated contract by means of an open procedure, a contracting entity shall fix a deadline for the receipt of tenders that is no less than 52 days from the date on which it sent the contract notice for publication by the European Commission.
(3)In awarding a regulated contract by means of a restricted procedure or in a negotiated procedure with a prior call for awarding such a contract through a competition, the following provisions apply: (a) the contracting entity shall fix a deadline for the receipt of requests to participate in response to a notice referred to in Regulation 44
(1)(c), or an invitation by the entity under Regulation 49
(6), that— (
  1. i)is in any case no less than 37 days from the date on which the notice or invitation was sent, and (
  2. ii)is in no case less than 22 days if the notice is sent for publication otherwise than by fax or other electronic means, and (iii) is no less than 15 days if the notice is sent for publication by fax or other electronic means; (
  3. b)the deadline for the receipt of tenders may be set by mutual agreement between the contracting entity and the selected candidates, provided that all candidates have the same time to prepare and submit their tenders; (
  4. c)if it is not possible to reach agreement on the deadline for the receipt of tenders, the contracting entity shall fix a deadline that is, as a general rule, at least 24 days, and is in no case less than 10 days, from the date of the invitation to tender.
(4)If a contracting entity has published a periodic indicative notice as referred to in Regulation 43, the minimum time limit for the receipt of tenders in an open procedure may not be less than 22 days from the date on which the relevant contract notice was sent to the European Commission for publication.
(5)The reduced deadlines are permitted only if— (
  1. a)the relevant periodic indicative notice has included, in addition to the information required by Part 1 of Schedule 4, all the information required by Part 2 of that Schedule, insofar as that information is available at the time when the notice is published, and (
  2. b)the notice was sent for publication at least 52 days (but not more than 12 months) before the date on which the relevant contract notice was sent for publication.
(6)If a notice is transmitted by electronic means in accordance with the format and procedures for transmission specified at the Internet address http://simap.eu.int, the deadlines for the receipt of requests to participate in restricted and negotiated procedures, and for receipt of tenders in open procedures, can be reduced by not more than 7 days.
(7)Except in the case of a deadline set by mutual agreement in accordance with paragraph
(3)(b), deadlines for the receipt of tenders when an open, restricted or negotiated procedure is used can be further reduced by up to 5 days if the contracting entity offers unrestricted and full direct access, by electronic means, to the contract documents and any supplementary documents from the date on which the relevant call of competition notice is published. The notice must specify an internet website at which that documentation is accessible.
(8)When an open procedure is used, the cumulative effect of the reductions provided for in paragraphs
(4)to
(7)must not result in a deadline for the receipt of tenders that is less than 15 days from the date on which the contracting entity sent the contract notice for publication by the European Commission. However, if the contract notice is not transmitted by fax or other electronic means, the cumulative effect of the reductions provided for in paragraphs
(4)to
(7)must not result a deadline for receipt of tenders in an open procedure that is less than 22 days from the date on which the contract notice was sent for publication.
(9)The cumulative effect of the reductions provided for in paragraphs
(4)to
(7)must not result in a deadline for receipt of requests to participate, in response to the publication of— (a) a notice referred to in Regulation 44
(1)(c), or (b) an invitation by the contracting entity under Regulation 49
(6), that is less than 15 days from the date on which the contract notice or invitation is sent.
(10)When a restricted or negotiated procedure is used, the cumulative effect of the reductions provided for in paragraphs
(4)to
(7)must not, except for a deadline set by mutual agreement in accordance with paragraph
(3)(b), result in a deadline for the receipt of tenders that is less than 10 days from the date of the invitation to tender.
(11)If, for any reason— (
  1. a)the contract documents and the supporting documents or additional information, although requested in good time, have not been supplied before the deadlines specified in Regulations 48 and 49, or (
  2. b)where tenders can be made only after a visit to the site, or after on-the-spot inspection of the documents supporting the contract documents, the contracting entity shall, except in the case of a time-limit set by mutual agreement in accordance with paragraph
(3)(b), extend the deadline for the receipt of tenders so that all of the economic operators involved can be aware of all the information needed in order to prepare a tender.
(12)Schedule 11 contains a table summarising the time limits referred to in this Regulation. Open procedure: contract specifications and supporting documents to be provided on request 48.
(1)If, in awarding a regulated contract by means of an open procedure, a contracting entity— (
  1. a)receives a request to participate from an economic operator within a reasonable time before the deadline for the submission of tenders, and (
  2. b)does not offer unrestricted and full direct access by electronic means to the contract specifications and any supporting documents in accordance with Regulation 47
(7), it shall send those specifications and supplementary documents to the operator within 6 days after receiving the request
(2)If an economic operator requests additional information about the contract specifications and any supporting documents a reasonable time before the deadline for the submission of tenders, the contracting entity shall provide the requested information to the operator without delay but, in any case, no later than 6 days before that deadline. Invitations to submit a tender or to negotiate 49.
(1)In awarding a regulated contract by means of a restricted procedure or a negotiated procedure with publication of a contract notice, a contracting entity shall simultaneously and in writing invite the selected candidates— (a) to submit their tenders, or (b) to negotiate, as provided by this Regulation.
(2)The invitation must— (
  1. a)include a copy of the relevant contract specifications or descriptive document and of each of the supporting documents (if any), or (
  2. b)if the contract specifications and other documents are made directly available by electronic means in accordance with Regulation 47
(7), specify how access to those specifications and the other documents can be obtained.
(3)If a person other than the contracting entity responsible for the award procedure is in possession of the document containing the contract specifications, or the descriptive document or any supporting document, the invitation must specify— (
  1. a)the address from which the document may be obtained, and (
  2. b)if relevant— (
  3. i)the deadline for requesting the document, and (
  4. ii)the fee (if any) payable for obtaining the document from the person and any payment procedure. Immediately after receiving a request for such a document from an economic operator, the person having possession of the document shall send it to the economic operator.
(4)On receiving, within a reasonable time before the deadline for the receipt of tenders, a request from an economic operator to provide additional information about the document containing the contract specifications, or the descriptive document or any supporting document, the person in possession of the document shall provide the additional information to that operator not less than 6 days before the deadline.
(5)The invitation to candidates must also include the following information, but may also include other information: (
  1. a)a reference to the publication of the contract notice; (
  2. b)the deadline for the receipt of the tenders, the address to which the tenders must be sent and the language or languages in which the tenders must be prepared; (
  3. c)a reference to any possible accompanying documents to be submitted, either in support of verifiable declarations by the tenderer in accordance with Regulation 56 or to supplement the information referred to in that Regulation, and under the conditions prescribed by that Regulation; (
  4. d)the criteria for the award of the contract, where they are not indicated in the notice on the existence of a qualification system used as a means of calling for competition; (
  5. e)if not specified in the contract notice, the contract specifications or the descriptive document, the relative weighting of criteria for the award of the contract or, if appropriate, the descending order of importance for those criteria.
(6)A contracting entity that has made a call for competition by means of a periodic indicative notice shall invite all candidates to confirm their interest on the basis of detailed information about the relevant contract before it begins to select tenderers or participants in negotiations. The invitation must include the following information but may include other information: (
  1. a)information about the nature and quantity of works, supplies or services (including all options concerning complementary contracts and, if possible the estimated time available for exercising those options for renewable contracts), the nature and quantity and, if possible, the estimated publication dates of future notices of competition for the works, product or service to be put out to tender; (
  2. b)whether the procedure for awarding regulated contracts is to be restricted or negotiated; (
  3. c)if relevant, the date on which the works are to be started or completed, or the supply of a product or service is to be started or completed; (
  4. d)the address and closing date for the submission of requests for tender documents and the language or languages in which they are to be prepared; (
  5. e)the address of the entity and the information necessary for obtaining the relevant contract specifications and other documents; (
  6. f)economic and technical conditions, financial guarantees and information required from economic operators; (
  7. g)the amount of, and the payment procedures for, any sum payable for obtaining tender documents; (
  8. h)whether the contract to which the invitation to tender relates is for purchase lease, hire or hire-purchase, or any combination of them; (
  9. i)the criteria for awarding the contract and their weighting or, if appropriate the order of importance of those criteria, if details of those criteria are not given in the relevant periodic indicative notice, the contract specifications or the invitation to tender or negotiate. CHAPTER 3 Communication and information Rules applicable to communication 50.
(1)A contracting entity may give or send any information, notice or other communication for a purpose connected with awarding a contract, or require candidates or tenderers to submit information or tenders, by such of the following means as it chooses: (a) by post or personal delivery; (b) subject to paragraphs
(5)and
(6), by electronic means; (c) subject to paragraph
(7), by telephone or fax; (d) by a combination of any 2 or more of those means.
(2)A contracting entity shall choose a means of communication that is generally available to economic operators so as to enable them to gain access to the entity's tendering procedure.
(3)A contracting entity shall communicate and store information in connection with awarding regulated contracts in a way that maintains the integrity of data and the confidentiality of tenders and preserves requests to participate.
(4)A contracting entity shall ensure that the content of tenders remain unopened and confidential until the deadline set for submitting tenders or requests to participate has expired.
(5)The equipment used for communicating by electronic means must be— (
  1. a)non-discriminatory, and (
  2. b)generally available, and (
  3. c)interoperable with information and communication equipment that is currently in general use.
(6)The following provisions apply to equipment used for sending and receiving tenders, and for receiving requests to participate, by electronic means: (
  1. a)information regarding the specifications necessary for the electronic submission of tenders and requests to participate (including encryption must be made available to candidates and tenderers; (
  2. b)equipment used for electronically receiving tenders and requests to participate must comply with Schedule 13; (
  3. c)tenderers or candidates must undertake to submit, before the deadline for submission of tenders or requests to participate, the documents, certificates and declarations referred to in Chapter 2 of Part 9 if they do not exist in electronic form.
(7)The following provisions apply to the sending of requests to participate in a procedure for the award of a regulated contract by a contracting entity: (
  1. a)requests to participate may be made in writing or by telephone; (
  2. b)a person who makes such a request by telephone shall confirm the request in writing before the deadline set for receiving requests; (
  3. c)a person who sends such a request by fax shall confirm the request by post or by electronic means before the deadline set for receiving requests, but only if required to do so by the entity for the purpose of authenticating the request. The entity shall specify those provisions in the contract notice, together with the deadline for sending confirmation by post or electronic means. Information to be given to applicants for qualification, candidates and tenderers 51.
(1)As soon as possible after reaching a decision about— (
  1. a)entering into a framework agreement or awarding a regulated contract, or (
  2. b)admission to a dynamic purchase system, a contracting entity shall notify candidates and tenderers of the decision by the most rapid available means of communication, such as electronic mail or fax.
(2)A contracting entity that notifies its decision by electronic mail or fax shall confirm the decision by letter if a candidate or tenderer asks it to do so.
(3)If the decision of a contracting entity— (
  1. a)is not to enter into a framework agreement, or award a regulated contract, for which there has been a call for competition, or (
  2. b)is to restart the procedure, or (
  3. c)is not to implement a dynamic purchasing system, the entity shall include in the decision the reasons on which it was based.
(4)A contracting entity that has rejected a candidate's application shall, as soon as practicable and in any case within 15 days after receiving a request to do so, inform the candidate of the reasons for the rejection.
(5)A contracting entity that has rejected a tenderer's tender shall — (a) when notifying the tenderer in accordance with paragraph
(1), indicate the principal reason, or reasons, why the tender is not the selected tender; (
  1. b)as soon as practicable, and in any case within 15 days after receiving a request from a tenderer that has made an admissible tender, inform that tenderer of— (
  2. i)the characteristics and relative advantages of the selected tender, and (
  3. ii)the name of the successful tenderer or parties to the framework agreement.
(6)In a case referred to in Regulation 35
(4), reasons for rejection referred to in paragraph
(5)(
  1. a)include— (
  2. a)the reasons for the entity's decision of non-equivalence, or (
  3. b)that the works, product or service does not meet the relevant performance or functional requirements).
(7)However, a contracting entity may decide not to disclose information referred to in paragraph
(1)relating to entry into a regulated contract or a framework agreement, or to admission to a dynamic purchasing system, on the ground that release of the information— (
  1. a)would impede law enforcement, or otherwise be contrary to the interest, or (
  2. b)would prejudice the legitimate commercial interests of economic operators (whether public or private), or (
  3. c)might prejudice fair competition among those operators.
(8)A contracting entity may not enter into a regulated contract with a successful tenderer unless at least 14 days have elapsed since the date on which tenderers were informed, in accordance with paragraph
(1), of the decision to award the contract to that tenderer.
(9)A contracting entity may reduce the period referred to in paragraph
(8)to not less that 7 days but only if the entity considers that it must, for reasons of urgency that it can demonstrate, enter into a regulated contract before the end of the 14-day period. However, if within the 7-day period, an unsuccessful tenderer notifies the entity in writing that the tenderer intends to seek a review of the entity's decision to award the contract, the entity may not enter into a regulated contract until at least 10 days have elapsed since tenderers were notified of the entity's decision to award the contract.
(10)A contracting entity that operates a qualification system for tenderers shall determine an application received from an economic operator for recognition as soon as practicable after receiving the application. If the entity is not able to determine the application within 4 months after the date of receipt, it shall, without delay, inform the operator of the reasons for the delay and the date by which the entity expects to determine the application.
(11)As soon as practicable after determining an application for recognition of a qualification (and in any case not later than 15 days after making the determination), the entity shall, by notice in writing, notify the applicant of the determination. If the application is refused, the entity shall include in the determination a statement setting out the reasons for the refusal. Those reasons must be based on the criteria for qualification referred in Regulation 55
(4).
(12)A contracting entity that operates a qualification system may terminate the recognition of an economic operator's qualification only for reasons based on the criteria for qualification referred to in Regulation 55
(4).
(13)A contracting entity shall not cancel recognition of an economic operator's qualification unless, at least 15 days previously, it— (
  1. a)has informed the operator of its intention to do so and of its reasons for the proposed cancellation, and (
  2. b)has given the operator an opportunity to make representations to it showing why the qualification should not be cancelled. Information to be stored concerning awards 52.
(1)A contracting entity shall keep appropriate information on each contract that is sufficient to permit it at a later date to justify decisions taken in connection with— (
  1. a)the qualification and selection of economic operators and the award of contracts, and (
  2. b)the use of procedures without a prior call for competition, and (
  3. c)the non-application of Parts 6, 7 and 8 because of the derogations provided for in Parts 3.
(2)A contracting entity shall take appropriate steps to record the progress of award procedures conducted by electronic means.
(3)The contracting entity shall keep the information for at least 4 years from the date of award of the contract so that the entity will be able, during that period, to provide the necessary information to the European Commission if it so requests. PART 9 CONDUCT OF AWARD PROCEDURE WHEN CONTRACTING ENTITY USES RESTRICTED PROCEDURE OR NEGOTIATED PROCEDURE CHAPTER 1 General General provisions for conducting restricted procedure or negotiated procedure 53.
(1)The following provisions apply when a contracting entity is selecting participants in an award procedure: (
  1. a)if the entity has prescribed rules and criteria for the exclusion of tenderers or candidates in accordance with Regulation 56, it shall exclude economic operators in accordance with those rules and those criteria; (
  2. b)the entity shall select tenderers and candidates in accordance with the objective rules and criteria prescribed under that Regulation; (
  3. c)if the entity uses a restricted procedure or a negotiated procedure with a call for competition, it shall, whenever appropriate, reduce in accordance with that Regulation the number of candidates selected in accordance with subparagraphs (
  4. a)and (b).
(2)When making a call for competition that involves notification and use of a qualification system, a contracting entity shall select tenderers in a restricted procedure, or participants in a negotiated procedure, from candidates that qualify in accordance with the rules of the system as established under Regulation 55.
(3)A contracting entity shall verify that the tenders submitted by selected tenderers comply with the rules and requirements applicable to tenders and award the contract on the basis of the criteria prescribed by Regulations 57 and 60. CHAPTER 2 Qualification and qualitative selection Mutual recognition of administrative, technical or financial conditions, and certificates tests and evidence 54.
(1)If, in the course of selecting economic operators to participate in a restricted or negotiated procedure, a contracting entity assesses the qualifications of economic operators or reviews the criteria and rules on which those qualifications are based, the entity may not— (
  1. a)impose on those operators administrative, technical or financial conditions that would not be imposed on others, or (
  2. b)require those operators to undergo tests, or produce evidence, that would duplicate objective evidence that is already available.
(2)In requesting an economic operator to produce a certificate prepared by an independent body attesting the compliance of the operator with specified quality assurance standards, a contracting entity shall refer to quality assurance systems based on the relevant European standards series certified by bodies conforming to the European standards series concerning certification.
(3)For the purposes of this Regulation, a contracting entity shall— (
  1. a)recognise certificates given by a competent body established in another Member State if satisfied that those certificates are equivalent to certificates given by recognised competent bodies established in the State, and (
  2. b)accept other evidence from economic operators of equivalent quality assurance measures.
(4)For a works contract or service supply contract (but only when appropriate), a contracting entity may, in order to verify an economic operator's technical abilities, require an indication of the environmental management measures that the operator will be able to take when carrying out the contract. If, in such a case, a contracting entity requires the production of a certificate prepared by an independent body certifying that the operator has complied with specified environmental management standards, the entity shall refer to the EMAS or to environmental management standards based on the relevant European or international standards certified by bodies conforming to European Community law or the relevant European or international standards concerning certification.
(4)A contracting entity shall— (
  1. a)recognise equivalent certificates from bodies established in other Member States, and (
  2. b)accept other evidence of equivalent environmental management measures from an economic operator. Establishment and operation of qualification systems by contracting entities 55.
(1)A contracting entity may, if it so chooses, establish and operate a qualification system for economic operators.
(2)A contracting entity that operates such qualification system shall ensure that economic operators are at all times able to apply to be included in the system and to have their applications properly considered.
(3)A system established under this Regulation may involve different qualification stages.
(4)A contracting entity shall operate such a system on the basis of objective criteria and rules for qualification established by the entity. If those criteria and rules include technical specifications, Regulation 35 applies. The entity may review and update the criteria and rules as required.
(5)The criteria and rules for a qualification system may include the exclusion criteria listed in Regulation 53 of the European Communities (Award of Public Authorities Contracts) Regulations 2006 on the terms and conditions specified in those Regulations. If the contracting entity is a contracting authority, those criteria and rules must include the exclusion criteria listed in paragraphs
(1)to
(3)of that Regulation.
(6)If the criteria and rules for qualification referred to in paragraph
(4)include requirements relating to the economic and financial capacity of an economic operator, the operator may, when necessary and for a particular contract, rely on the capacity of other persons, whatever the legal nature of the link between the operator and those other persons. In such a case, the operator must prove to the contracting entity that the necessary resources will be available to it throughout the period of the validity of the qualification system.1 Under the same conditions, a group of economic operators may rely on the capacity of participants in the group or of other persons.
(7)If the criteria and rules for qualification referred to in paragraph
(4)include requirements relating to the technical or professional abilities of an economic operator, the operator may, when necessary and for a particular contract, rely on the capacity of other persons, whatever the legal nature of the link between the operator and those other persons. In such a case, the operator must prove to the contracting entity that the necessary resources will be available to it throughout the period of the validity of the qualification system.2 Under the same conditions, a group of economic operators may rely on the abilities of participants in the group or of other persons.
(8)A contracting entity that operates a qualification system shall, on request, make available to an economic operator the criteria and rules for qualification referred to in paragraph
(4)and, if those criteria or rules are updated, the entity shall provide interested economic operators with details of the updated criteria or rules.
(9)A contracting entity shall, on being satisfied that the qualification system of another body meets its requirements, notify interested economic operators of the name of the other body.
(10)A contracting entity shall keep a written record of qualified economic operators. The record can be divided into categories according to the type of contract for which the qualification is valid.
(11)When establishing or operating a qualification system, a contracting entity shall comply with— (a) Regulation 43
(9)relating to notices on the existence of a system of qualification, and (b) Regulation 51
(10),
(11)and
(12)relating to the information to be delivered to economic operators that have applied for qualification, and (c) Regulation 53
(2)relating to the selection of participants when a call for competition is made by means of a notice on the existence of a qualification system, and (d) Regulation 54 relating to mutual recognition of administrative, technical or financial conditions, certificates, tests and evidence.
(12)When making a call for competition by means of a notice on the existence of a qualification system, a contracting entity shall select tenderers in a restricted procedure or participants in a negotiated procedure from the qualified candidates in accordance with the system. Selection to be in accord with objective rules and criteria 56.
(1)A contracting entity that has established selection criteria for an open procedure shall do so in accordance with objective rules and criteria that are available to all interested economic operators.
(2)A contracting entity that selects candidates for a restricted procedure or a negotiated procedure shall do so in accordance with the objective rules and criteria that it has made available to interested economic operators.
(3)A contracting entity shall base its selection criteria for a restricted procedure or a negotiated procedure on the objective need of the entity to reduce the number of candidates to a level that is justified by the need to balance the particular characteristics of the procurement procedure with the resources required to conduct it. However, in deciding the number of candidates to be selected, the entity shall take account of the need to ensure adequate competition.
(4)The criteria specified in paragraphs
(1)and
(2)may include the exclusion criteria listed in Regulation 53 of the European Communities (Award of Public Authorities Contracts) Regulations 2006 on the terms and conditions specified in that Regulation. If the contracting entity is a contracting authority, those criteria and rules must include the exclusion criteria listed in paragraph
(1)of that Regulation.
(5)If the criteria referred to in paragraphs
(1)and
(2)include requirements relating to the economic and financial capacity of an economic operator, the operator may, when necessary and for a particular contract, rely on the capacity of other persons, whatever the legal nature of the link between the operator and those other persons. If it does so, the economic operator must prove to the contracting entity that the necessary resources will be available to it throughout the period necessary to carry out the contract.1 Under the same conditions, a group of economic operators may rely on the capacities of participants in the group or of other persons.
(6)The criteria referred to in paragraphs
(1)and
(2)include requirements relating to the technical or professional abilities of an economic operator.
(7)If the criteria referred to in paragraphs
(1)and
(2)include requirements relating to the technical or professional abilities of an economic operator, the operator may, when necessary and for a particular regulated contract, rely on the abilities of other persons whatever the legal nature of the link (if any) between the operator and those persons. If it does so, the operator must prove to the contracting entity that the necessary resources will be available to it throughout the period necessary to perform the contract.2 Under the same conditions, a group of economic operators may rely on the abilities of participants in the group or of other persons. CHAPTER 3 Awarding a regulated contract Criteria for awarding a regulated contract 57.
(1)A contracting entity shall, in awarding a regulated contract on the basis of the tender that is most economically advantageous to it, adopt criteria linked to the subject-matter of the contract.
(2)Except as provided by paragraph
(1), a contracting entity shall award a regulated contract on the basis of the lowest price tendered.
(3)For the purpose of paragraph
(1), the criteria may include (but are not limited to quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost-effectiveness, after-sales service and technical assistance and delivery date and delivery period or period of completion.
(4)The contracting entity shall specify in the relevant contract notice or contract documents the relative weighting that it gives to each of the criteria chosen to determine the most economically advantageous tender. That weighting can be expressed

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