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The Public Contracts (Scotland) Regulations 2015

Type Scottish-Statutory-Instrument

Publication 2015-12-16

Last updated 2026-01-07

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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Made: 16th December 2015

Laid before the Scottish Parliament: 18th December 2015

Coming into force in accordance with Regulation 1

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 and all other powers enabling them to do so.

These Regulations make provision for a purpose mentioned in that section and it appears to the Scottish Ministers that it is expedient for certain references in respect of the following EU Instruments to be construed as references to those EU Instruments or provisions of those EU Instruments (as appropriate) as amended from time to time—Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signatures ;Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary ;Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services ;Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC ;Commission Decision 2009/767/EC setting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2009) 7806 ;Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services (Audio-visual Media Services Directive) ;Commission Decision 2011/130/EU establishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081) ;Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC ;Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council ;Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts ;Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC ; and[Directive 2014/25/EU of the European Parliament and of the Council on procurement entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC ,

Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signatures ;

Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary ;

Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services ;

Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC ;

Commission Decision 2009/767/EC setting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2009) 7806 ;

Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services (Audio-visual Media Services Directive) ;

Commission Decision 2011/130/EU establishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081) ;

Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC ;

Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council ;

Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts ;

Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC ; and

[Directive 2014/25/EU of the European Parliament and of the Council on procurement entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC ,

and they are to be construed accordingly.

PART 1 — GENERAL

Citation, commencement and extent

1

(1) These Regulations may be cited as the Public Contracts (Scotland) Regulations 2015.

(2) Subject to paragraphs (3) to (6), these Regulations come into force on 18th April 2016.

(3) Regulation 23(1) to (7) (rules applicable to communication) comes into force—

(a) for the purposes of regulations 35 (dynamic purchasing systems), 36 (electronic auctions), 37 (electronic catalogues), 52(1) (form and manner of sending notices for publication at EU level) and 54 (electronic availability of procurement documents) on 18th April 2016;

(b) for the purpose of regulation 38(6) (centralised purchasing activities and central purchasing bodies) on 18th April 2017; and

(4) Regulation 60(7) (European Single Procurement Document: electronic format) comes into force on 18thApril 2018.

(5) Regulation 60(11)(b) (European Single Procurement Document: providing supporting documents) comes into force on 18th October 2018.

(6) Regulation 62 (recourse to e-Certis) comes into force on 18th October 2018.

(7) These Regulations extend to Scotland only.

Interpretation

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(1) In these Regulations—

“accelerated procedure” means any of the following—an open procedure in which the contracting authority has exercised the power conferred by regulation 28(5) (open procedure) to fix a time limit for the receipt of tenders that is shorter than the minimum specified in regulation 28(3) (open procedure);a restricted procedure in which the contracting authority has exercised the power conferred by regulation 29(11) (restricted procedure) to fix a time limit—for the receipt of requests to participate that is shorter than the minimum specified in regulation 29(3) (restricted procedure), orfor the receipt of tenders that is shorter than the minimum specified in regulation 29(6) (restricted procedure);a competitive procedure with negotiation in which the contracting authority has exercised the power conferred by regulation 30(11) (competitive procedure with negotiation) to fix a time limit—for the receipt of requests to participate that is shorter than the minimum specified in regulation 30(5) (competitive procedure with negotiation); orfor the receipt of initial tenders that is shorter than the minimum specified in regulation 30(6) (competitive procedure with negotiation);

“ancillary purchasing activity” means activity consisting of the provision of support to a purchasing activity, in particular in any of the following forms—technical infrastructure enabling a contracting authority to award a public contract or to conclude a framework agreement for works, supplies or services;advice on the conduct or design of a public procurement procedure;preparation and management of a procurement procedure for or on behalf of the contracting authority concerned;

“body governed by public law” means a body that has legal personality, is established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character and which—is financed for the most part by the State, regional or local authorities, or by any other body governed by public law;is subject to management supervision by any such authority or body; orhas an administrative, managerial or supervisory board more than half the members of which were appointed by any body referred to in sub-paragraph (a);

“buyer profile” means a page on the internet set up by a contracting authority containing one or more of the following: prior information notices, information on ongoing invitations to tender, prospective and concluded contracts, cancelled procedures and any useful general information such as a contact point, a telephone number, a facsimile number, a postal address or an e-mail address;

“candidate” means an economic operator that has sought an invitation to or has been invited to take part in any of the following—a restricted procedure;a competitive procedure with negotiation;a negotiated procedure without prior publication;a competitive dialogue procedure;an innovation partnership;

“central government authority” means the contracting authorities listed in Schedule 1 and, where any such authority is succeeded by another authority which is itself a contracting authority, their successors;

“central purchasing body” means a contracting authority providing centralised purchasing activity whether or not including ancillary purchasing activities;

“centralised purchasing activity” means activity conducted on a permanent basis in one of the following forms—the acquisition of supplies or services for contracting authorities;the award of public contracts, or the conclusion of framework agreements for works, supplies or services intended for contracting authorities;

“commenced”, in relation to procurement, means—where a contract notice has been sent to the Official Journal in order to invite offers or requests to be selected to tender for or to negotiate, or be selected to participate in a dialogue in relation to a contract, in respect of a proposed public contract, framework agreement or dynamic purchasing system;in any case where there is no requirement to send a contract notice to the Official Journal, where the contracting authority has dispatched any form of advertisement seeking offers or expressions of interest in the proposed contract, framework agreement or dynamic purchasing system;in any case where there is no such advertising, where the contracting authority has contacted any economic operator in order to—seek expressions of interest or offers in respect of a proposed contract, framework agreement or dynamic purchasing system; orin response to an unsolicited expression of interest or offer in respect of a proposed contract, framework agreement or dynamic purchasing system; orwhere the contracting authority has sent a notice to the Official Journal in order to hold a design contest;

“common technical specification” means a technical specification in the field of information and communication technology laid down in accordance with Articles 13 and 14 of Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European standardisation as it has effect in EU law, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council as amended from time to time;

“contract award notice” means the notice referred to in regulation 51 (contract award notices) or, where relevant, regulation 75(3) (publication of notices);

“contract notice”, subject to regulation 98(6), means the notice referred to in regulation 50 (contract notices) or, where relevant, regulation 75(1)(a) (publication of notices);

“contracting authority” means the state, a regional or local authority, body governed by public law or association formed by one or more such authorities or bodies , but does not include the Advanced Research and Invention Agency;

“contracting entity” means a utility within the meaning of regulation 4(1) of the Utilities Contracts (Scotland) Regulations 2016;

“covered by regulation 3(2)”, in relation to an element, a part of a contract, or procurement, means that regulation 3(2)—applies to that element, part or procurement, orwould do so if Part 2 applied,

“CPV” means the Common Procurement Vocabulary as adopted by Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary as amended from time to time and “CPV Code” shall be construed accordingly;

“defence and security contract” has the meaning given in section 7 of the Procurement Act 2023;

“design contest”, subject to regulations 98(6) and 99(5), means those procedures which enable the contracting authority to acquire, mainly in the fields of town and country planning, architecture, engineering or data processing, a plan or design selected by a jury after being out to competition with or without the award of prizes;

“Directive” means Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC;

“disabled”, in relation to a person, means a disabled person within the meaning of the Equality Act 2010 and, in relation to a worker, means a disabled person who is a worker;

“dynamic purchasing system”, subject to regulations 98(6) and 99(5), means the system referred to in regulation 35 (dynamic purchasing systems);

“economic operator”, subject to regulation 99(5), means any person or public entity or group of such persons and/or entities including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;

“electronic means” means electronic equipment for processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, radio, optical or other electromagnetic means;

“European standard” means a standard adopted by a European standardisation organisation and made available to the general public;

“European Technical Assessment” means the documented assessment of the performance of a construction product, in relation to its essential characteristics, in accordance with the relevant European Assessment Document as defined in point 12 of Article 2 of Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC as amended from time to time;

“framework agreement”, subject to regulations 98(6) and 99(5), means an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular terms with regard to price and, where appropriate, the quantity envisaged;

“GPA” means the Agreement on Government Procurement signed at Marrakesh on 15th April 1994, as amended on or before 30 October 2023;

“GPA party” means any country, state or separate customs territory that is—listed in Schedule 1A; ora member State of the EU;

“innovation” means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method or a new organisational method in business practice, workplace organisation or external relations including with the purpose of helping to solve societal challenges or to support ... sustainable and inclusive growth;

“international standard” means a standard adopted by an international standardisation organisation and made available to the general public;

“joint entity” includes European groupings of territorial cooperation under Regulation (EC) No 1082/2006 of the European Parliament and of the Council on a European grouping of territorial cooperation and other entities established under EU law;

“label” means any document, certificate or attestation confirming that the works, products, services, processes or procedures in question meet certain requirements;

“label requirements” means the requirements to be met by the works, products, services, processes or procedures in question in order to obtain the label concerned;

“life cycle” means all consecutive or interlinked stages, including research and development to be carried out, production, trading and its conditions, transport, use and maintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilisation;

“main contractor” means an economic operator to which a contracting authority has awarded a public contract or framework agreement;

“Official Journal” means the Official Journal of the European Union;

“national standard” means a standard adopted by a national standardisation organisation and made available to the general public;

“procurement” means the process leading to the award of a public contract or framework agreement or establishment of a dynamic purchasing system for the acquisition of works, supplies or services from an economic operator;

“procurement document” means any document produced or referred to by the contracting authority to describe or determine elements of the procurement, including the contract notice, the prior information notice ..., the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;

“public contract”, subject to regulation 98(6), means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as its object the execution of works, the supply of products or the provision of services;

“public service contract” means a public contract having as its object the provision of services not including those comprising a public works contract (except a subsidised public service contract);

“public supply contract” means a public contract having as its object the purchase, lease, rental or hire purchase, with or without an option to buy, of products which contract may include, as an incidental matter, siting and installation operations;

“public works contract” means a public contract having as its object one of the following—the execution or the design and execution of works related to one of the activities within the meaning of Schedule 2;the execution or the design and execution of a work;the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work; (except a subsidised public works contract);

“selection criteria” means, except in regulation 79 (rules on the organisation of design contests and the selection of participants), selection criteria set out by a contracting authority in accordance with regulation 59;

“SPD” means the Single Procurement Document referred to in regulation 60(1),

“standard” means a technical specification, adopted by a recognised standardisation body, for repeated or continuous application, with which compliance is not compulsory, and which is an international standard, a European standard or a national standard;

“sub-central contracting authority” means a contracting authority which is not a central government authority;

“technical reference” means any deliverable produced by European standardisation bodies, other than European standards, according to procedures adapted to the development of market needs;

“technical specifications” means the matters referred to in regulation 43(1)(b) to (6);

“tenderer” means an economic operator that has submitted a tender;

“TFEU” means the Treaty on the Functioning of the European Union ;

“the UK e-notification service” has the meaning given by regulation 52(5), and references (in whatever terms) to the submission of notices to that service are to be construed in accordance with regulation 52(6),

“a work” means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function; but “works” is to be interpreted in accordance with paragraph (2);

“working day” means a day other than a Saturday, Sunday or a bank holiday in Scotland within the meaning of the Banking and Financial Dealings Act 1971 ; and

“written” or “in writing” means any expression which can be read by a person, reproduced and subsequently communicated, including information transmitted and stored by electronic means.

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

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

(4) Except in regulation 88(4) (enforcement of duties through the courts), where these Regulations refer to a period of time—

(a) where the period follows an action taken, the day on which the action is taken is not counted in the calculation of the period;

(b) the period must include at least 2 working days; and

(5) In the interpretation of these Regulations, except where the context otherwise requires, reference to a “contracting authority” shall be deemed to include reference to a person undertaking a procurement subject to the application of these Regulations by virtue of regulation 14(1).

PART 2 — RULES IMPLEMENTING THE PUBLIC CONTRACTS DIRECTIVE

CHAPTER 1 — SCOPE AND GENERAL PRINCIPLES

SECTION 1 — Scope

Subject Matter and application of these Regulations

3

(1) This Part establishes the rules on procedures for the procurement by contracting authorities with respect to public contracts, framework agreements, dynamic purchasing systems and design contests which—

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

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

(2) This Part—

(a) does not oblige any contracting authority to supply information the disclosure of which it considers contrary to the essential interests of the security of the United Kingdom,

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

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

(4) Any measures which, if they had been taken immediately before IP completion day, would have been covered by Article 346 of TFEU shall be regarded as measures covered by paragraph (2)(b).

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

Mixed Procurement

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(1) Where a procurement has as its subject a mixed contract any part of which is covered by regulation 3(2) or would, if awarded as a separate contract, be considered a defence and security contract regulation 17 (mixed procurement involving defence or security aspects) shall apply.

(2) Where a procurement has as its subject a mixed contract including works, supplies or services for the pursuit of an activity within the scope of the Utilities Contracts (Scotland) Regulations 2016 the applicable rules shall be determined by regulations 5 and 6 of those Regulations.

(3) The application of these Regulations to a procurement which has as its subject a mixed contract, other than one to which paragraphs (1) or (2) apply, shall be determined by that part of the mixed contract that characterises the main subject of the contract in question. In the case of a mixed contract—

(a) consisting partly of services of a kind referred to in regulation 74 (award of contracts for social and other specific services) and partly of other services; or

(b) consisting partly of services and partly of supplies,

the main subject shall be determined by reference to which of the respective services or supplies has the highest estimated value.

(4) Where a contract includes different parts which are objectively separable and the procurement of which, if separate, includes matters that would be subject to the application of these Regulations and matters that would not, a contracting authority may choose to award—

(a) separate contracts for the separate parts; or

(b) a single contract.

(5) Where a contracting authority decides to award separate contracts under paragraph (4)(a) the application or otherwise of these Regulations to the procurement of each separate part shall be determined by reference to the characteristics of such part.

(6) Where a contracting authority decides to award a single contract under paragraph (4)(b) these Regulations shall apply to the procurement of the single contract irrespective of the value of any parts that would, if separated, have not been subject to the application of these Regulations.

(7) Where a single contract referred to in paragraph (4)(b) combines a public contract together with a concession contract the procurement shall be subject to the application of these Regulations where the estimated value of that part of the contract that would be a public contract is equal to or greater than the applicable threshold determined in accordance with regulation 5 (thresholds).

(8) Where a contract includes different parts which are objectively not separable the application or otherwise of these Regulations to the procurement of that contract shall be determined by reference to the main subject-matter of that contract.

Thresholds

5

(1) These Regulations apply to a procurement where the estimated value of the contract to be awarded (inclusive of value added tax, where appropriate) is equal to or greater than—

(a) in the case of a public works contract (except a subsidised public works contract), £5,193,000;

(b) in the case of a public supply contract, except one to which paragraph (2)(b) applies, or a public service contract (except a subsidised public service contract) to be awarded by a central government authority or a design contest organised by such an authority, £135,018;

(c) in the case of a public supply contract, except one to which paragraph (2)(a) applies, or a public service contract (except a subsidised public service contract) to be awarded by a sub‑central contracting authority or a design contest organised by such an authority, £207,720;

(d) in the case of a public service contract for a service listed in Schedule 3 (social and other specified services), £663,540.

(2) Where the procurement is for the award of a public supply contract by a contracting authority operating in the field of defence—

(a) the amount specified in regulation 5(1)(b) applies to contracts concerning products referred to in Schedule 4 even where the contracting authority is a sub-central contracting authority; and

(b) the amount specified in regulation 5(1)(c) applies to contracts concerning products not referred to in Schedule 4 even where the contracting authority is a central government authority.

(3) Where a proposed work, acquisition of supplies or provision of services may be procured in the form of separate lots these Regulations do not apply to the award of a contract for a lot where—

(a) the estimated value of that lot is less than—

(i) £70,778, in the case of supplies or services; or

(ii) £884,720, in the case of works; and

(b) the estimated total aggregate value of all such lots to be awarded without application of these Regulations does not exceed 20% of the estimated aggregate value of all the lots calculated in accordance with regulation 6(1)(a) (methods for calculating the estimated value).

(3A) For the avoidance of doubt, in determining for the purpose of paragraph (3)(b) the estimated aggregate value of all the lots, no account is to be taken of a lot if its estimated value is taken to be a certain amount by virtue of regulation 6(1)(b) (rather than being an amount calculated in accordance with regulation 6(1)(a)).

(4) In this Regulation reference to a “contract” includes reference to a framework agreement, dynamic purchasing system or design contest.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Methods for calculating the estimated value

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(1) A contracting authority must

(a) calculate in accordance with the following paragraphs the estimated value of a contract by reference to the total amount payable under it (regardless of the form of such payment), inclusive of value added tax, where appropriate ; or

(b) if it is not possible to calculate the estimated value of a contract, take its estimated value to be equal to the relevant threshold mentioned in regulation 5.

(2) The total amount payable includes the amount payable as a result of the exercise of any form of option and any renewal of the contract as explicitly set out in the procurement documents.

(3) Where a contracting authority provides for prizes or payments to candidates or tenderers it must take them into account when calculating the estimated value.

(4) Where a contracting authority is comprised of separate operational units the authority —

(a) may calculate the estimated value by reference to each such unit where that unit is independently responsible for its procurement; and

(b) must calculate the estimated value by reference to the total for all the operational units which are not so responsible.

(5) A contracting authority must not choose a method to be used to calculate the estimated value of a contract with the intention of excluding the contract from the application of these Regulations.

(6) A contracting authority must not sub-divide a contract with the effect of excluding the contract from the application of these Regulations unless such sub-division is justified by objective reasons.

(7) The estimated value must be the value estimated at the moment at which the procurement is commenced.

(8) In the case of a framework agreement or dynamic purchasing system the estimated value shall be the total estimated value of all of the contracts envisaged pursuant to and for the total term of the agreement or system.

(9) In the case of an innovation partnership the estimated value shall be the total estimated value of the research and development activities to take place during all stages of the partnership together with the estimated value of works, supplies or services to be developed and delivered by the partner.

(10) In the case of a public works contract the estimated value shall include the total estimated value of any supplies and services that are necessary for executing the works and are to be provided by the contracting authority to the contractor.

(11) In the case of a public works contract or public service contract to be awarded in the form of separate lots, the estimated value shall be the total estimated value of all such lots.

(12) In the case of a contract for supplies which may be awarded in the form of separate lots the estimated value shall be the total estimated value of all such lots and these Regulations apply to each lot accordingly where the aggregate value of the lots is equal to or greater than the relevant threshold referred to in regulation 5 (thresholds).

(13) In the case of public supply contracts or public service contracts which are regular in nature or which are intended to be renewed in a given period, the estimated value shall be calculated by reference to—

(a) the total actual value of contracts of the same type awarded during the period of 12 months or the financial year preceding the proposed award of a further contract but with adjustment of such value, where possible, to take account of the changes in quantity or value which the authority considers likely to occur during the period of 12 months following the award of the contract; or

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

(14) In the case of a public supply contract relating to the leasing, rental, hire or hire purchase of products the estimated value shall be—

(a) in the case of a fixed term contract for a period of less than or equal to 12 months, the total estimated value of the contract;

(b) in the case of a fixed term contract for a period of more than 12 months, the total value including the estimated residual value; and

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

(15) In the case of a public service contract for a service of a kind mentioned in this paragraph, the estimated value shall be calculated by reference to—

(a) for insurance services, the premium payable and any other form of remuneration;

(b) for banking and other financial services, the fees, commissions payable, interest and any other form of remuneration; and

(16) In the case of a public service contract which does not indicate a total price, the estimated value must be calculated by reference to—

(a) in the case of a contract for a fixed term of less than or equal to 48 months, the total value of the contract for its full term; and

(b) in the case of a contract for a fixed term of more than 48 months or a contract without a fixed term, the monthly value multiplied by 48.

Exclusions: Utilities

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These Regulations do not apply to procurement for the award of a contract or to the organisation of a design contest by a contracting entity where—

(a) the contract or design contest is for the purpose of carrying out any of the activities referred to in regulations 8 to 14 of the Utilities Contracts (Scotland) Regulations 2016 (gas and heat; electricity; water; transport services; ports and airports; postal services; extraction of oil and gas and exploration for or extraction of coal or other solid fuels);

(b) the contract or design contest is excluded from the application of the Utilities Contracts (Scotland) Regulations 2016—

(i) under regulations 17 (exclusion: contracts awarded for the purpose of resale or lease to third parties), 22 (exclusion: contracts awarded by certain utilities for the purchase of water and for the supply of energy or of fuels for the production of energy) or 32 (activities directly exposed to competition), or

(ii) by reason of the value being less than the threshold provided for in regulation 15,

of those Regulations;

(c) the contracting entity is a contracting authority providing postal services within the meaning of regulation 13(2) of the Utilities Contracts (Scotland) Regulations 2016 and the contract is for the purpose of—

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

(ii) financial services specified under CPV Codes 66100000-1 to 66720000-3, within the meaning of paragraph (1)(e) of regulation 20 of the Utilities Contracts (Scotland) Regulations 2016 and including in particular postal money orders and postal giro transfers;

(iii) philatelic services; or

(iv) logistics services (services combining physical delivery, warehousing or both with other non-postal functions).

Exclusions: Concessions

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(1) These Regulations do not apply to procurement for the award of a works concession contract or a services concession contract which—

(a) is subject to the application of the Concession Contracts (Scotland) Regulations 2016,

(b) would be subject to the application of those Regulations but for any provision contained therein.

(2) In this regulation “works concession contract” and “services concession contract” have the meaning given in regulation 3 (meaning of “concession contract”) of the Concession Contracts (Scotland) Regulations 2016.

Exclusions: Electronic Communications

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(1) These Regulations do not apply to procurement for the award of a public contract or to the organisation of a design contest for the principal purpose of permitting the contracting authority to provide or exploit public communications networks or to provide an electronic communications service to the public.

(2) In this regulation, “public communications networks” and “electronic communication service” have the same meanings as in Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services as amended from time to time.

Exclusions: Public contracts awarded, and design contests organised, pursuant to international rules

10

(1) These Regulations do not apply to procurement for the award of a public contract or the organisation of a design contest which the contracting authority is obliged to award or organise in accordance with procurement procedures which are established by—

(a) an international agreement or any other legal instrument creating international law obligations ... between the United Kingdom and one or more other country or any part thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by the signatories; ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) These Regulations do not apply to procurement for the award of a relevant international public contract or the organisation of a relevant international design contest in a case where the applicable procurement rules restrict the participation of economic operators in the procedure.

(2A) In the case of procurement for the award of a relevant international public contract or relevant international design contest where the applicable procurement rules do not restrict the participation of economic operators in the procedure, the only regulation that applies to the procurement is regulation 26B (equal treatment of economic operators).

(3) This Regulation does not apply to procurement for the award of a contract or the organisation of a design contest involving defence or security aspects awarded or organised pursuant to international rules.

(4) In this regulation, “relevant international public contract” and “relevant international design contest” mean a public contract or design contest that—

(a) the contracting authority awards or organises in accordance with procurement rules provided by an international organisation or international financing institution, and

(b) is fully financed, or co-financed for the most part, by that organisation or institution.

Exclusions: Specific service contracts

11

(1) These Regulations do not apply to procurement for the award of a public service contract, framework agreement or dynamic purchasing system—

(a) for the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or of any estate, right, servitude or other interest in or over such land, buildings or property;

(b) by an audio‑visual or radio media service provider, for the acquisition, development production or co-production of programme material intended for audio-visual media services or radio media services;

(d) for arbitration or conciliation services;

(e) for any of the following legal services—

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

(aa) an arbitration or conciliation held in the United Kingdom, another country or before an international arbitration or conciliation instance; or

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

(ii) legal advice given by a lawyer ...—

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

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

(iii) document certification or authentication services which must be provided by a notary public;

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

(v) other legal services which... are connected, even occasionally, with the exercise of official authority;

(f) for financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC as amended from time to time;

(g) for central bank services;

(h) for operations conducted with the European Financial Stability Facility or the European Stability Mechanism;

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

(j) which is an employment contract;

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

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

(m) for political campaign services which are specified under CPV Codes 79341400-0, 92111230-3 and 92111240-6, when awarded by a political party in the context of an election campaign.

(2) In this Regulation—

(a) “audio-visual media services” has the meaning given by Article 1(1)(a) of the Audio-visual Media Services Directive;

(b) “Audio-visual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services as amended from time to time ;

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

(d) “media service provider” has the meaning given by Article 1(1)(d) of the Audio-visual Media Services Directive; and

(e) “programme” and “programme material” have the meaning given by Article 1(1)(b) of the Audio-visual Media Services Directive but also include radio programmes and radio programme material.

Exclusions: Service contracts awarded on the basis of an exclusive right

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These Regulations do not apply to procurement for a public service contract to be awarded by a contracting authority to another contracting authority or to an association of contracting authorities on the basis of an exclusive right which such authority or association of authorities enjoys pursuant to law, regulation or published administrative provision ....

Exclusions: Public contracts between entities within the public sector

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(1) These Regulations do not apply to procurement for the award of a public contract—

(a) by a contracting authority to a controlled person;

(b) by a controlled person to a contracting authority which controls that person; or

(c) by a controlled person to another controlled person where both such persons are controlled by the same contracting authority.

(2) For the purpose of this regulation, a person is a “controlled person” where—

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

(b) the person carries out more than 80% of its activities in the performance of tasks entrusted to it by the authority or by other persons controlled by that authority; and

(c) no other person has direct private capital participation in the person with the exception of non-controlling and non-blocking forms of private capital participation required by any enactment ... which do not exert a decisive influence on the person being awarded the contract.

(3) For the purpose of paragraph (2)(a) an authority shall be deemed to exercise control over a person similar to the control that it exercises over its own departments where—

(a) it exercises a decisive influence over the strategic objectives and significant decisions of the person; or

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

(4) These Regulations do not apply to procurement for the award of a public contract by a contracting authority to a person which is jointly controlled.

(5) For the purpose of paragraph (4) a person is jointly controlled where—

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

(b) the person carries out more than 80% of its activities in the performance of tasks entrusted to it by the contracting authorities or by other persons controlled by those authorities; and

(c) no other person has direct capital participation in the person with the exception of non‑controlling and non-blocking forms of private capital participation required by any enactment ... which do not exert a decisive influence on the person.

(6) For the purpose of paragraph (5)(a) contracting authorities shall be deemed to exercise control over a person similar to the control that they exercise over their own departments where—

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

(b) those contracting authorities jointly exercise a decisive influence over the strategic objectives and significant decisions of the person; and

(7) For the purpose of paragraph (6)(a) individual representatives may represent several or all of the contracting authorities.

(8) These Regulations do not apply to procurement for the award of a public contract exclusively between two or more contracting authorities where—

(a) the contract is for the purpose of establishing or implementing co-operation between the contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;

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

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

(9) The percentage of activities referred to in paragraphs (2)(b), (5)(b) and (8)(c), shall be determined by reference to—

(a) the average turnover of the person or, as the case may be, contracting authority for the period of 3 years preceding the date of proposed contract award; or

(b) an appropriate alternative activity-based measure such as costs incurred by the relevant person or contracting authority with respect to works, supplies and services for such 3 year period.

(10) Where paragraph (11) applies, an alternative credible measurement of activity shall be used, and for this purpose use of business projections shall be treated as a credible measure.

(11) This paragraph applies where the turnover or activity based measure are not available for the preceding 3 years or are no longer relevant because of—

(a) the date on which the person or contracting authority was created or commenced activities; or

(b) a reorganisation of its activities.

Specific situations: Contracts subsidised by a contracting authority

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(1) These Regulations apply to procurement for the award of—

(a) a works contract which is subsidised directly by a contracting authority by more than 50% and the estimated value of which, inclusive of value added tax, where appropriate, is equal to or greater than the sum specified in regulation 5(1)(a) as amended from time to time, where those contracts involve one of the following activities—

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

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

(b) a service contract which is subsidised directly by a contracting authority by more than 50% and the estimated value of which, inclusive of value added tax, where appropriate, is equal to or greater than the sum specified in regulation 5(1)(b) as amended from time to time and which is connected to a works contract as referred to in paragraph (a).

(2) The contracting authority providing a subsidy referred to in paragraph (1) must ensure compliance with these Regulations where the authority does not itself award the subsidised contract or where the authority awards that contract for and on behalf of another person.

(3) The contracting authority providing the subsidy referred to in paragraph (1) must notify the recipient of the subsidy that these Regulations apply in the circumstances referred to in this regulation.

Specific situations: Research and development services

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These Regulations only apply to procurement for the award of public service contracts for research and development service which are covered by CPV Codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5 provided that—

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

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

Specific situations: Defence and security

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(1) These Regulations apply to procurement for the award of public contracts and to design contests organised in the fields of defence and security, with the exception of procurement ...—

(a) to which the Procurement Act 2023 applies; or

(b) to which that Act does not apply pursuant to section 3 of that Act.

(2) These Regulations do not apply to procurement for the award of public contracts or design contests, not otherwise exempt by virtue of paragraph (1), to the extent that—

(a) the protection of the essential security interests of the United Kingdom ... cannot be guaranteed by less intrusive measures; or

(b) the application of these Regulations would oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security.

(3) These Regulations do not apply where—

(a) the procurement and performance of the public contract or design contest are classified as secret or must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in any part of the United Kingdom; and

(b) the United Kingdom has determined that the protection of the essential interests concerned cannot be guaranteed by less intrusive measures.

(4) In this regulation reference to “less intrusive measures” includes, but is not limited to, imposing requirements aimed at protecting the confidential nature of information which the contracting authority makes available in a contract award procedure as provided for in these Regulations.

Mixed procurement involving defence or security aspects

17

(1) This regulation applies where a procurement has as its subject a mixed contract, the procurement of any part of which, if separated, would be covered by regulation 3(2) or would be considered a defence and security contract.

(2) Where different parts of a given contract are objectively separable, a contracting authority may decide to undertake procurement for the award of—

(a) separate contracts for the separate parts; or

(b) a single contract.

(3) Any decision to undertake a procurement for the award of a single contract must not be made for the purpose of excluding the procurement from the application of these Regulations or the Procurement Act 2023.

(4) Where a contracting authority decides to undertake procurement for the award of separate contracts for separate parts the applicable law for the procurement of each separate contract is to be determined by the characteristics of such contract.

(5) Where a contracting authority decides, in accordance with paragraph (6), to undertake a procurement for the award of a single contract, and—

(a) part of the contract is covered by regulation 3(2), the contract may be awarded without applying these Regulations; or

(b) part of the contract would, if awarded as a separate contract, be considered a defence and security contract, the procurement may be undertaken in accordance with the Procurement Act 2023, in which event these Regulations do not apply to such procurement.

(6) A contracting authority may only decide to undertake a procurement for the award of a single contract of a kind referred to in paragraph (5) where—

(a) different parts of such a contract are not objectively separable; or

(b) such decision is justified by objective reasons.

(7) Paragraph (5)(b) is without prejudice to the thresholds and exclusions provided for by the Procurement Act 2023.

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

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

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(1) These Regulations do not apply to procurement for the award of a public contract or to a design contest involving defence or security aspects which the contracting authority is obliged to award or organise in accordance with procurement procedures which are established by—

(a) an international agreement or arrangement ... between the United Kingdom and one or more other country or part thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by their signatories;

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

(2) These Regulations do not apply to procurement for the award of a public contract or to the organisation of a design contest involving defence or security aspects which the contracting authority carries out in accordance with procurement rules provided by an international organisation or international financing institution where the public contract or design contest concerned is fully financed by that organisation or institution or is co-financed for the most part by such organisation or institution.

SECTION 2 — General Rules

Principles of procurement

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(1) A contracting authority must, in carrying out any procurement or design contest which is subject to the application of these Regulations—

(a) treat economic operators equally and without discrimination; and

(b) act in a transparent and proportionate manner.

(2) A contracting authority must not design a procurement or design contest with the intention of excluding it from the application of these Regulations or of artificially narrowing competition.

(3) Without prejudice to the generality thereof, competition shall be deemed to be artificially narrowed for the purpose of paragraph (2) where the design of the procurement or design contest is made with the intention of unduly favouring or disadvantaging any particular economic operator.

(4) A contracting authority must include in each public contract or framework agreement such conditions relating to the performance of the contract or framework as meet the requirements mentioned in paragraph (5) and are reasonably necessary to ensure that the economic operator complies with environmental, social and employment law, including any relevant collective agreements or , subject to paragraphs (4A) and (4B), international law measures referred to in Annex X of the Directive as amended from time to time.

(4A) Where—

(a) the United Kingdom has ratified an international agreement establishing obligations in any of the fields mentioned in paragraph (4), and

(b) the agreement is not already referred to,

the Scottish Ministers may make regulations providing that paragraph (4) is to have effect as if the agreement were referred to.

(4B) Where the United Kingdom has ceased to ratify an international agreement that is already referred to, the Scottish Ministers may make regulations providing that paragraph (4) is to have effect as if the agreement were not referred to.

(4C) In paragraphs (4A) and (4B)—

(a) “referred to” means referred to in Annex X mentioned in paragraph (4), and

(b) where paragraph (4) already has effect as if an agreement were referred to, “already referred to” includes that agreement.

(5) The requirements referred to in paragraph (4) are that the conditions are—

(a) linked to the subject matter of the contract or framework within the meaning of regulation 70 (conditions for performance of contracts); and

(b) indicated in the call for competition or in the procurement documents.

Economic Operators

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(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Where paragraph (3) applies, a contracting authority may require an economic operator to state, in its tender or request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract.

(3) This paragraph applies where an economic operator which is a legal person is seeking the award of—

(a) a public works contract;

(b) a public supply contract which includes services or siting and installation operations; or

(4) A contracting authority must not require a group of economic operators, including temporary associations, to have a specific legal form in order to be able to submit a tender or a request to participate.

(5) A contracting authority may specify in the procurement documents the method by which a group of economic operators is to meet the requirements as to economic and financial standing or technical and professional ability referred to in regulation 59 (selection criteria).

(6) Any method specified as referred to in paragraph (5) must be justified by objective reasons and must be proportionate.

(7) Any conditions for the performance of a contract by a group of economic operators, which are different from those imposed upon individual participants, must be justified by objective reasons and must be proportionate.

(8) A contracting authority may, if it is necessary for the satisfactory performance of the contract, require a group of economic operators to assume a specific legal form for the purpose of the award of the contract.

(9) In this Regulation reference to a “contract” includes reference to a framework agreement, dynamic purchasing system or design contest.

Reserved contracts

21

(1) A contracting authority may—

(a) reserve the right to participate in procurement for the award of a public contract or framework agreement to a supported business; or

(b) provide for such a contract or framework agreement to be performed in the context of a supported employment programme.

(2) In this regulation—

“supported business” means an economic operator whose main aim is the social and professional integration of disabled or disadvantaged persons and where at least 30% of the employees of the economic operator are disabled or disadvantaged persons; and

“supported employment programme” means an employment programme operated by an economic operator the main aim of which is the social and professional integration of disabled or disadvantaged persons and where at least 30% of those engaged in the programme are disabled or disadvantaged persons.

(3) Where a contracting authority is following the approach set out in paragraph (1), it must specify that fact in the contract notice and refer to this regulation.

Confidentiality

22

(1) A contracting authority must not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.

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

(a) any other provision of these Regulations, including the obligation relating to advertising of awarded contracts and to provision of information to candidates and tenderers set out in regulations 51 (contract award notices) and 56 (informing candidates and tenderers);

(b) the Freedom of Information (Scotland) Act 2002 ;

(d) any other enactment to which the contracting authority is subject relating to the disclosure of information.

(3) A contracting authority may impose upon an economic operator requirements aimed at protecting the confidential nature of information which the contracting authority makes available throughout the procurement procedure.

Rules applicable to communication

23

(1) Subject to paragraphs (3), (5) and (8), a contracting authority must ensure that all communication and information exchange, including submission, pursuant to these Regulations is performed using electronic means of communications in accordance with this Regulation.

(2) Subject to paragraph (13), the tools and devices to be used for electronic means of communication, and their technical characteristics, must—

(a) be non-discriminatory;

(b) be generally available;

(d) not restrict economic operators' access to the procurement procedure.

(3) A contracting authority is not obliged to require electronic means of communication in the submission process where—

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

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

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

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

(4) Where, in accordance with paragraph (3), electronic means of communication is not required, communication must be carried out—

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

(b) by a combination of post or other suitable carrier and, to the extent that electronic means of communication is possible, by such means.

(5) A contracting authority is not obliged to require electronic means of communication in the submission process to the extent that the use of means of communication other than electronic means is necessary—

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

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

(6) Where, in accordance with this regulation, a contracting authority requires means of communication in the submission process other than electronic means, the authority must state the reason for this in the individual report referred to in regulation 83 (reporting and documentation requirements).

(7) Where electronic means of communication is not required for a reason referred to in paragraph (5), the contracting authority must state in the individual report the reasons why use of means of communication other than electronic means has been considered necessary under that paragraph.

(8) Notwithstanding paragraph (1), oral communication may be used in respect of communications other than those concerning the essential elements of a procurement procedure, provided that the content of the oral communication is documented by the contracting authority.

(9) In paragraph (8), reference to “the essential elements of a procurement procedure” includes the procurement documents, requests for participation, confirmations of interest and tenders.

(10) A contracting authority must, to a sufficient extent and by appropriate means, document oral communications with tenderers which could have a substantial impact on the content and assessment of the tenders, in particular, by preparing written or audio records or summaries of the main elements of the communication.

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

(12) A contracting authority must examine the content of tenders and requests to participate only after the time limit set for submitting them has expired.

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

(14) A contracting authority shall be deemed to offer suitable alternative means of access where the authority—

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

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

(15) For the purpose of paragraph (14)(a) “date of publication of the call for competition” means the date of publication on the UK e-notification service after being submitted in accordance with regulation 52 (publication on the UK e-notification service).

(16) A contracting authority must specify in the call for competition or the invitation to confirm interest, referred to in paragraph (14)(a), the internet address at which those tools and devices are accessible.

(17) Tools and devices for the electronic receipt of tenders, requests to participate and, in design contests, plans and projects, must—

(a) enable the precise determination of the exact time and date of the receipt of tenders, requests to participate and the submission of plans and projects;

(b) to the extent reasonably possible, ensure that, before the time limit referred to in paragraph (12) has expired, no-one can have access to data transmitted to the authority using the tools and devices;

(d) ensure that, during the different stages of the procurement procedure, only authorised persons may have access to data submitted or to part of such data;

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

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

(g) to the extent reasonably possible, ensure that any infringement, or attempted infringement, of the conditions referred to in sub-paragraphs (b) to (f) is clearly detectable.

(18) In addition to the requirements set out in paragraph (17), a contracting authority must comply with all of the following requirements in relation to tools and devices for the electronic transmission and receipt of tenders and for the electronic receipt of requests to participate—

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

(b) a contracting authority must specify the level of security required for the electronic means of communication in the various stages of the specific procurement procedure;

(d) where paragraph (19) applies, the contracting authority must act in accordance with Article 27 of Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market (and for this purpose the submission of the tender or request is to be treated as the use of an online service to which those Regulations apply).

(19) This paragraph applies where a contracting authority concludes that the level of risk assessed in accordance with paragraphs (21) and (22) is such that advanced electronic signatures as defined by Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market as amended from time to time, are required.

(20) A contracting authority shall assess the certificate referred to in paragraph (18)(d) by taking into account whether the certificate is provided by a certificate services provider, which is on a trusted list provided for in the Commission Decision.

(21) In deciding the level of security required at each stage of a procurement procedure, and in concluding whether the level of risk is such that advanced electronic signatures are required, a contracting authority must assess the risks having regard to—

(a) the likelihood of particular risks materialising;

(b) the potential adverse consequences if those risks materialise;

(d) the need for proportionality between the expected benefits of any particular security requirements (in terms of eliminating or reducing any of the risks referred to in paragraph (22)), and the costs, burdens and obligations which those requirements may impose upon an economic operator.

(22) A contracting authority must assess all relevant risks, including, in particular, where applicable—

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

(b) risks to national security;

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

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

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

(f) any other material risk relating to the procurement procedure in question.

(23) Paragraph (24) applies where—

(a) a competent authority of the United Kingdom located in Scotland; or

(b) another issuing entity located in Scotland,

signs and issues a document for use in a procurement within the scope of this Part.

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

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

(b) the documents must contain, in the electronic signature or in the electronic document carrier, information on existing validation possibilities that comply with the requirements of Article 2(1)(b) of that Decision (or would simply comply with those requirements if the person seeking to validate the signature were a public sector body for the purpose of that Decision).

Nomenclatures

24

A contracting authority must, when making any reference to nomenclatures of the subject matter of a public contract in the conduct of a procurement, do so by using the CPV.

Conflicts of Interest

25

(1) A contracting authority must take appropriate measures to prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.

(2) Without prejudice to the generality thereof, reference to “conflicts of interest” in paragraph (1) includes any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure.

(3) In paragraph (2)—

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

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

CHAPTER 2 — RULES ON PUBLIC CONTRACTS

SECTION 3 — Procedures

Conditions relation to the GPA and other international agreements

26

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Choice of procedures

27

(1) When undertaking a procurement a contracting authority must apply a procedure which complies with these Regulations and includes publication of a call for competition except where regulation 33 (use of the negotiated procedure without prior notification) permits a contracting authority to award a contract using negotiated procedure without prior publication.

(2) A call for competition must be made by means of a contract notice in accordance with regulation 50 (contract notices).

(3) A contracting authority may, in accordance with these Regulations, apply—

(a) an open or a restricted procedure; or

(b) an innovation partnership.

(4) A contracting authority may apply a competitive procedure with negotiation or a competitive dialogue where—

(a) the needs of the contracting authority cannot be met without adaptation of readily available solutions;

(b) the works, supplies or services required include design or innovative solutions;

(c) the contract cannot be awarded without prior negotiations because of specified circumstances related to the nature or complexity of the works, supplies or services or the legal and financial make-up or because of the risks attaching to any of them;

(d) the technical specifications of the works, supplies or services cannot be established with sufficient precision by the contracting authority with reference to a standard, European Technical Assessment, common technical specification or technical reference; or

(e) in response to an open or restricted procedure only irregular or unacceptable tenders are submitted.

(5) Where paragraph (4)(e) applies, a contracting authority is not required to publish a contract notice where the authority includes in the procedure all of, and only, the tenderers which satisfy the criteria set out in regulations 57 to 64 and which, during the prior open or restricted procedure submitted tenders in accordance with the formal requirements of the procurement procedure.

(6) A tender must be considered irregular, for the purpose of paragraph (4)(e), where—

(a) it does not comply with the procurement documents;

(b) it was received late;

(d) it has been found by the contracting authority to be abnormally low.

(7) A tender must be considered unacceptable, for the purpose of paragraph (4)(e), where—

(a) it was submitted by a tenderer which does not have the required qualifications; or

(b) the price tendered exceeds the contracting authority's budget as determined and documented prior to the commencement of the procurement procedure.

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) Nothing in these Regulations prevents an authority which has commenced a procurement from terminating that procurement at any time.

Open Procedure

28

(1) In an open procedure, a contracting authority must permit any interested economic operator to submit a tender in response to a call for competition within the time period set by the authority in accordance with this regulation.

(2) The tender must be accompanied by the information for qualitative selection that is required by the contracting authority.

(3) Subject to paragraphs (4) to (6), the minimum time period for the receipt of tenders shall be 35 days from the date on which the contract notice is submitted for publication.

(4) Where a contracting authority has published a prior information notice ..., the minimum time limit for the receipt of tenders may be reduced to 15 days, provided that—

(a) the prior information notice included all the information required by regulation 49(2) insofar as that information was available at the time the prior information notice was published; and

(b) the prior information notice was submitted for publication between 35 days and 12 months before the date on which the contract notice was submitted for publication.

(5) Where a state of urgency duly substantiated by a contracting authority renders it impracticable to apply the minimum time limit set out in paragraph (3), the authority may fix a time limit which must not be less than 15 days from the date on which the contract notice was submitted for publication.

(6) A contracting authority may reduce the minimum time period referred to in paragraph (3) by a period of up to 5 days where it accepts that tenders may be submitted by electronic means in accordance with regulation 23 (rules applicable to communication).

Restricted Procedure

29

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