The Public Contracts (Scotland) Regulations 2015

• (b) the agreement is not already listed,

the Scottish Ministers may make regulations providing that paragraph (2) is to have effect as if the agreement were listed.

• (2B) Where the United Kingdom has ceased to ratify an international agreement that is already listed, the Scottish Ministers may make regulations providing that paragraph (2) is to have effect as if the agreement were not listed.

• (2C) In paragraphs (2A) and (2B)—

• (a) “listed” means listed as described in paragraph (2), and

• (b) where paragraph (2) already has effect as if an agreement were listed, “already listed” includes that agreement.

• (3) In open procedures, a contracting authority may decide to examine tenders before verifying the absence of grounds for exclusion and the fulfilment of the selection criteria in accordance with regulations 58 to 65.

• (4) Where a contracting authority makes use of the possibility referred to in paragraph (3), the authority must ensure that the verification of absence of grounds for exclusion and of fulfilment of the selection criteria is carried out in an impartial and transparent manner so that no contract is awarded to, or framework agreement concluded with, a tenderer that—

• (a) should have been excluded under regulation 58 (exclusion grounds); or

• (b) does not meet the selection criteria set out by the contracting authority.

• (5) Where information or documentation to be submitted by an economic operator is or appears to be incomplete or erroneous, or where specific documents are missing, a contracting authority may request the economic operator concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.

Exclusion grounds

58

• (1) A contracting authority must exclude an economic operator from participation in a procurement procedure where the authority has established, by verifying in accordance with regulations 60 (European Single Procurement Document: use, content and form of the ESPD), 61 (means of proof) and 62 (recourse to e-Certis), or is otherwise aware that that economic operator or a person to whom paragraph (2) applies has been convicted of any of the following offences—

• (a) the common law offence of conspiracy where that conspiracy relates to participation in a criminal organisation as defined in Article 2 of Council Framework Decision 2008/841/JHA on the fight against organised crime or an offence under sections 28 or 30 of the Criminal Justice and Licensing (Scotland) Act 2010 ;

• (b) corruption within the meaning of section 1(2) of the Public Bodies Corrupt Practices Act 1889 or section 1 of the Prevention of Corruption Act 1906 , where the offence relates to active corruption as defined in Article 3 of the Council Act of 26th May 1997 and Article 3(1) of Council Joint Action 98/742/JHA ;

• (c) bribery or corruption within the meaning of sections 68 and 69 of the Criminal Justice (Scotland) Act 2003 , where the offence relates to active bribery or corruption;

• (d) bribery within the meaning of sections 1 or 6 of the Bribery Act 2010 ;

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (f) any offence listed in—

• (i) section 41 of the Counter-Terrorism Act 2008 ; or

• (ii) Schedule 2 to that Act where the court has determined that there is a terrorist connection.

• (g) money laundering within the meaning of sections 340(11) and 415 of the Proceeds of Crime Act 2002 ;

• (h) an offence in connection with the proceeds of criminal conduct within the meaning of section 93A, 93B or 93C of the Criminal Justice Act 1988 ;

• (i) any offence under Part 1 of the Human Trafficking and Exploitation (Scotland) Act 2015 or under any provision referred to in the Schedule to that Act;

• (j) an offence in connection with the proceeds of drug trafficking within the meaning of section 49, 50 or 51 of the Drug Trafficking Act 1994 ;

• (k) any other offence within the meaning of Article 57(1)(a), (b), (d), (e) or (f) of the Directive as defined by the law of any EEA state or any part thereof.

• (2) This paragraph applies to a person who is a member of the administrative, management or supervisory body of the economic operator referred to in paragraph (1) or has powers of representation, decision or control in relation to such economic operator.

• (3) A contracting authority must exclude an economic operator from participation in a procurement procedure where—

• (a) subject to paragraphs (5) to (7), the contracting authority is aware that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions and this has been established by a judicial or administrative decision having final and binding effect in accordance with the legal provisions of the country in which it is established or in accordance with those of any of the jurisdictions of the United Kingdom; or

• (b) the contracting authority is aware that the economic operator has committed an act prohibited under the Employment Relations Act 1999 (Blacklists) Regulations 2010 and the commission of such an act has been admitted by the economic operator or established by a judicial decision having final and binding effect.

• (4) Subject to paragraph (5), a contracting authority may exclude an economic operator from participation in a procurement procedure where the contracting authority can demonstrate by any appropriate means that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions.

• (5) A contracting authority may not exclude an economic operator pursuant to paragraph (3)(a) or (4) where—

• (a) the economic operator has fulfilled its obligations by paying, or entering into a binding arrangement with a view to paying, the taxes or social security contributions due, including, where applicable, any interest accrued or fines; or

• (b) the obligation to make repayment otherwise ceases.

• (6) A contracting authority may disregard any of the prohibitions imposed by paragraphs (1) to (3), on an exceptional basis, for overriding reasons relating to the public interest such as public health or protection of the environment.

• (7) A contracting authority may also disregard the prohibition imposed by paragraph (3)(a) where an exclusion would be clearly disproportionate, in particular—

• (a) where only minor amounts of taxes or social security contributions are unpaid; or

• (b) where the economic operator was informed of the exact amount due following its breach of its obligations relating to the payment of taxes or social security contributions at such time that it did not have the possibility of fulfilling its obligations in a manner described in paragraph (5) before expiration of the deadline for requesting participation or, in open procedures, the deadline for submitting its tender.

• (8) A contracting authority may exclude an economic operator from participation in a procurement procedure where—

• (a) the contracting authority can demonstrate by any appropriate means a violation by the economic operator of applicable obligations referred to in regulation 57(2) (general principles);

• (b) the economic operator is bankrupt or is the subject of insolvency or winding-up proceedings, where its assets are being administered by a liquidator or by the court, where it is in an arrangement with creditors, where its business activities are suspended or it is in any analogous situation arising from a similar procedure under laws and regulations to which the economic operator may be subject;

• (c) the contracting authority can demonstrate by appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable;

• (d) the contracting authority has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;

• (e) a conflict of interest exists within the meaning of regulation 25 (conflicts of interest) which cannot be effectively remedied by other less intrusive measures;

• (f) a distortion of competition from the prior involvement of the economic operator in the preparation of the procurement procedure, as referred to in regulation 42 (prior involvement of candidates or tenderers), cannot be remedied by other, less intrusive measures;

• (g) the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity or a prior concession contract which led to early termination of that prior contract, damages or other comparable sanctions;

• (h) the economic operator has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria;

• (i) the economic operator has withheld information referred to in sub-paragraph (h) or is not able to submit the supporting documents required under regulation 60 (... Single Procurement Document: use, content and form of the SPD); or

• (j) the economic operator—

• (i) has or has sought to unduly influence the decision-making process of the contracting authority,

• (ii) has or has sought to obtain confidential information that may confer upon it undue advantages in the procurement procedure; or

• (iii) has negligently provided misleading information that may have a material influence on decisions concerning exclusion, selection or award.

• (9) A contracting authority must exclude an economic operator where the authority becomes aware, at any time during the procedure, that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs (1) to (3).

• (10) A contracting authority may exclude an economic operator where the authority becomes aware, at any time during the procedure, that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs (4) or (8).

• (11) In the cases referred to in paragraph (1) and subject to paragraph (6), the period during which the economic operator must be excluded is 5 years from the date of the conviction by final judgment.

• (12) In the cases referred to in paragraph (3)(b) or (8), and subject to paragraph (14), the period during which the economic operator may be excluded is 3 years from the date of the relevant event.

• (13) Any economic operator that is in one of the situations referred to in paragraph (1), (3)(b) or (8) may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion.

• (14) If the contracting authority is satisfied that the evidence proves that the measures are sufficient for the purpose referred to in paragraph (13), the authority must not exclude the economic operator from the procurement procedure.

• (15) For the purpose mentioned in paragraph (14), the economic operator must prove that it has—

• (a) paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct;

• (b) clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities; and

• (c) taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.

• (16) The measures taken by the economic operator must be evaluated by the contracting authority taking into account the gravity and particular circumstances of the criminal offence or misconduct.

• (17) Where the contracting authority considers that the measures are insufficient, the authority must give to the economic operator a statement of the reasons for that decision.

Selection criteria

59

• (1) Selection criteria may relate to—

• (a) suitability to pursue a professional activity;

• (b) economic and financial standing;

• (c) technical and professional ability.

• (2) A contracting authority may impose upon economic operators as requirements for participation only the criteria referred to in paragraphs (5) to (19).

• (3) A contracting authority must limit any requirements to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the technical and professional abilities to perform the contract to be awarded.

• (4) All requirements must be related and proportionate to the subject-matter of the contract.

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

• (6) In procurement procedures for services, in so far as economic operators have to possess a particular authorisation or to be a member of a particular organisation in order to be able to perform in their country of origin the service concerned, a contracting authority may require them to prove that they hold such authorisation or membership.

• (7) With regard to economic and financial standing, a contracting authority may impose requirements ensuring that economic operators possess the necessary economic and financial capacity to perform the contract.

• (8) A contracting authority may require that economic operators—

• (a) in particular, have a certain minimum yearly turnover, including a certain minimum turnover in the area covered by the contract;

• (b) provide information on their annual accounts showing the ratios, for example, between assets and liabilities;

• (c) have an appropriate level of professional risk indemnity insurance.

• (9) The minimum yearly turnover that economic operators are required to have must not exceed twice the estimated contract value, except in duly justified cases, such as by reference to special risks attached to the nature of the works, supplies or services.

• (10) Where a contracting authority requires a higher minimum yearly turnover than that referred to in paragraph (9) the authority must state its main reasons for doing so in the procurement documents or in the report referred to in regulation 83(1) (reporting and documentation requirements).

• (11) Ratios referred to in paragraph (8)(b) may be taken into consideration where the contracting authority specifies the methods and criteria for such consideration in the procurement documents, but such methods and criteria must be transparent, objective and non-discriminatory.

• (12) Where a contract is divided into lots this regulation shall apply in relation to each individual lot.

• (13) A contracting authority may set the minimum yearly turnover that economic operators are required to have by reference to groups of lots in the event that the successful tenderer is awarded several lots to be performed at the same time.

• (14) In the case of a framework agreement under which contracts are to be awarded following a reopening of competition, the estimated contract value referred to in paragraph (9) must be calculated on the basis of the expected maximum size of specific contracts that will be performed at the same time, or, where it is not known, and in the case of any other framework, on the basis of the estimated value of the framework agreement.

• (15) In the case of a dynamic purchasing system, the estimated contract value referred to in paragraph (9) must be calculated on the basis of the expected maximum size of specific contracts to be awarded under that system.

• (16) With regard to technical and professional ability, a contracting authority may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard.

• (17) A contracting authority may require, in particular, that economic operators have a sufficient level of experience demonstrated by suitable references from contracts performed in the past.

• (18) A contracting authority may assume that an economic operator does not possess the required professional abilities where the contracting authority has established that the economic operator has conflicting interests which may negatively affect the performance of the contract.

• (19) In a procurement procedure for works, for supplies requiring siting or installation work or for services, a contracting authority may evaluate the professional ability of economic operators to execute or provide the works, siting or installation or the services with regard to the skills, efficiency, experience and reliability of the economic operator.

• (20) A contracting authority must state the requirements for participation, which may be expressed as minimum levels of ability, together with the appropriate means of proof, in the contract notice or in the invitation to confirm interest.

European Single Procurement Document: Use, content and form of the ESPD

60

• (1) At the time of submission of requests to participate or of tenders, a contracting authority must accept the SPD, consisting of an updated self-declaration as preliminary evidence instead of certificates issued by public authorities or third parties confirming that the relevant economic operator fulfils any of the following conditions—

• (a) it is not in one of the situations referred to in regulation 58 (exclusion grounds) in which economic operators must or may be excluded;

• (b) it meets the relevant selection criteria that have been set out under regulation 59 (selection criteria);

• (c) where applicable, it fulfils the objective rules and criteria that have been set out under regulation 66 (reduction of the number of otherwise qualified candidates to be invited to participate).

• (2) Where the economic operator relies on the capacities of other entities under regulation 64 (reliance upon the capacities of other entities), the SPD must also contain the information referred to in paragraph (1) in respect of such entities.

• (3) The SPD must consist of a formal statement by the economic operator that the relevant ground for exclusion does not apply or that the relevant selection criterion is fulfilled and must provide the relevant information as required by the contracting authority.

• (4) The SPD must further identify the public authority or third party responsible for establishing the supporting documents and contain a formal statement to the effect that the economic operator will be able, upon request and without delay, to provide those supporting documents.

• (5) Where the contracting authority can obtain the supporting documents directly by accessing a database as mentioned in paragraph (11), the SPD must also contain the information required for this purpose, such as the internet address of the database, any identification data and, where applicable, the necessary declaration of consent.

• (6) An economic operator may reuse an SPD which has already been used in a previous procurement procedure, provided that the economic operator confirms that the information contained in it continues to be correct.

• (7) The SPD must be provided exclusively in electronic form.

• (8) A contracting authority may require candidates and tenderers at any moment during the procedure to submit all or any of the supporting documents where this is necessary to ensure the proper conduct of the procedure.

• (9) Before awarding the contract, except a contract based on a framework agreement concluded in accordance with regulation 34(6) or (7)(a) (framework agreements), the contracting authority must require the tenderer to which it has decided to award the contract to submit up-to-date supporting documents in accordance with regulation 61 (means of proof) and, where appropriate, regulation 63 (quality assurance standards and environmental management standards).

• (10) The contracting authority may invite economic operators to supplement or clarify the certificates received under regulations 61 (means of proof) and 63 (quality assurance standards and environmental management standards).

• (11) Despite paragraphs (8) and (9), a contracting authority must not require economic operators to submit—

• (a) supporting documents or other documentary evidence where and in so far as the contracting authority has the possibility of obtaining the certificates or the relevant information directly by accessing a national database in the United Kingdom that is available free of charge, such as a national procurement register, a virtual company dossier, an electronic document storage system or a prequalification system; or

• (b) a supporting document which the contracting authority already possesses.

Means of proof

61

• (1) A contracting authority may require the certificates, statements and other means of proof referred to in this regulation as evidence for the absence of grounds for exclusion under regulation 58 (exclusion grounds) and for the fulfilment of the selection criteria in accordance with regulation 59 (selection criteria).

• (2) A contracting authority must not require means of proof other than those referred to in this regulation and in regulations 59(17) (selection criteria) and 63 (quality assurance standards and environmental management standards).

• (3) In respect of regulation 64 (reliance upon the capacities of other entities), an economic operator may rely on any appropriate means to prove to the contracting authority that the economic operator will have the necessary resources at its disposal.

• (4) A contracting authority must accept the following as sufficient evidence that none of the cases specified in regulation 58 (exclusion grounds) apply to the economic operator—

• (a) as regards regulation 58(1) to (3) (exclusion grounds), the production of an extract from the relevant register, such as judicial records or, failing that, of an equivalent document issued by a competent judicial or administrative authority in the ... country of origin or the country where the economic operator is established showing that those requirements have been met; and

• (b) as regards regulation 58(4) to (6) and (8)(b) (exclusion grounds), a certificate issued by the competent authority in the ... country concerned.

• (5) Where the ... country in question does not issue such documents or certificates, or to the extent that these do not cover all the cases specified in regulation 58(1) to (6) and (8)(b) (exclusion grounds), they may be replaced by a declaration on oath or, in ... countries where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a competent judicial or administrative authority, a notary or a competent professional or trade body, in the ... country of origin or in the ... country where the economic operator is established.

• (6) Proof of the economic operator's economic and financial standing may be provided by one or more of the following references—

• (a) appropriate statements from banks or, where appropriate, evidence of relevant professional risk indemnity insurance;

• (b) the presentation of financial statements or extracts from the financial statements, where publication of financial statements is required under the law of the country in which the economic operator is established;

• (c) a statement of the economic operator's overall turnover and, where appropriate, of turnover in the area covered by the contract for a maximum of the last 3 financial years available, depending on the date on which the economic operator was set up or the economic operator started trading, as far as the information on those turnovers is available.

• (7) Where the references mentioned in paragraph (6) are not appropriate in a particular case, the contracting authority may require the economic operator to provide other information to prove its economic and financial standing.

• (8) Where, for any valid reason, the economic operator is unable to provide the references or other information required by the contracting authority, it may prove its economic and financial standing by any other document which the contracting authority considers appropriate.

• (9) Evidence of the economic operator‘s technical abilities may be provided by one or more of the following means, in accordance with the nature, quantity or importance, and the use, of the works, supplies or services—

• (a) a list of the works carried out over at the most the past 5 years, accompanied by certificates of satisfactory execution and outcome for the most important works; but, where necessary in order to ensure an adequate level of competition, a contracting authority may indicate that evidence of relevant works carried out more than 5 years before will be taken into account;

• (b) a list of the principal deliveries effected or the main services provided over at the most the past 3 years, with the sums, dates and recipients, whether public or private, involved; but, where necessary in order to ensure an adequate level of competition, a contracting authority may indicate that evidence of relevant supplies or services delivered or performed more than 3 years before will be taken into account;

• (c) an indication of the technicians or technical bodies involved, whether or not belonging directly to the economic operator's undertaking especially those responsible for quality control and, in the case of a public works contract, those upon whom the contractor can call in order to carry out the works;

• (d) a description of the technical facilities and measures used by the economic operator for ensuring quality and the undertaking's study and research facilities;

• (e) an indication of the supply chain management and tracking systems that the economic operator will be able to apply when performing the contract;

• (f) where the products or services to be supplied are complex or, exceptionally, are required for a special purpose, a check carried out by the contracting authority or on behalf of the authority by a competent official body of the country in which the supplier or service provider is established, subject to that body's agreement, on the production capacities of the supplier or the technical capacity of the service provider and, where necessary, on the means of study and research which are available to it and the quality control measures it will operate;

• (g) the educational and professional qualifications of the service provider or contractor or those of the economic operator's managerial staff, provided that they are not to be evaluated as an award criterion;

• (h) an indication of the environmental management measures that the economic operator will be able to apply when performing the contract;

• (i) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last 3 years;

• (j) a statement of the tools, plant or technical equipment available to the service provider or contractor for carrying out the contract;

• (k) an indication of the proportion of the contract which the economic operator intends possibly to subcontract;

• (l) with regard to the products to be supplied, one or more of the following means—

• (i) samples, descriptions or photographs, the authenticity of which must be certified where the contracting authority so requests;

• (ii) certificates drawn up by official quality control institutes or agencies of recognised competence attesting the conformity of products clearly identified by references to technical specifications or standards.

Recourse to e-Certis

62

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

Quality assurance standards and environmental management standards

63

• (1) A contracting authority must, where it requires the production of certificates drawn up by independent bodies attesting that the economic operator complies with certain quality assurance standards, including on accessibility for disabled persons, refer to quality assurance systems based on the relevant European standards series certified by accredited bodies.

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

• (3) A contracting authority must also accept other evidence of equivalent quality assurance measures where the economic operator concerned had no possibility of obtaining such certificates within the relevant time limits for reasons that are not attributable to that economic operator, provided that the economic operator proves that the proposed quality assurance measures comply with the required quality assurance standards.

• (4) Where a contracting authority requires the production of certificates drawn up by independent bodies attesting that the economic operator complies with certain environmental management systems or standards, the authority must refer to—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (c) ...environmental management standards based on the relevant European or international standards by accredited bodies.

...

• (5) Where an economic operator had demonstrably no access to such certificates referred to in paragraph (4), or no possibility of obtaining them within the relevant time limits for reasons that are not attributable to that economic operator, the contracting authority must accept other evidence of environmental management measures, provided that the economic operator proves that these measures are equivalent to those required under the applicable environmental management system or standard.

Reliance upon the capacities of other entities

64

• (1) With regard to—

• (a) criteria relating to economic and financial standing as set out under regulation 59(7) to (15) (selection criteria); and

• (b) criteria relating to technical and professional ability as set out under regulation 59(16) to (19) (selection criteria),

an economic operator may, where appropriate and for a particular contract, rely upon the capacities of other entities, regardless of the legal nature of the links which it has with them.

• (2) With regard to criteria relating to the educational and professional qualifications mentioned in regulation 61(9)(g) (means of proof), or to relevant professional experience, economic operators may however only rely upon the capacities of other entities where the latter will perform the works or services for which these capacities are required.

• (3) Where an economic operator wants to rely upon the capacities of other entities, it must prove to the contracting authority that it will have at its disposal the resources necessary, for example by producing a commitment by those entities to that effect.

• (4) The contracting authority must, in accordance with regulations 60 to 62, verify whether the entities upon whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion of those entities under regulation 58 (exclusion grounds).

• (5) The contracting authority—

• (a) must require the economic operator to replace an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion; and

• (b) may require the economic operator to substitute an entity in respect of which there are non-compulsory grounds for exclusion.

• (6) Where an economic operator relies upon the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting authority may require the economic operator and those entities to be jointly liable for the performance of the contract.

• (7) A group of economic operators as referred to in regulation 20(4) (economic operators) may rely upon the capacities of participants in the group or of other entities, and paragraphs (1) to (6) apply in relation to such a group in the same way that they apply in relation to an economic operator.

• (8) In the case of works contracts, supply contracts requiring siting or installation work or services contracts, a contracting authority may require certain critical tasks to be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators as referred to in regulation 20(4) (economic operators), by a participant in that group.

Recognition of official lists of approved economic operators and certification by certification bodies.

65

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

Reduction of the number of otherwise qualified candidates to be invited to participate

66

• (1) This regulation applies to restricted procedures, competitive procedures with negotiation, competitive dialogue procedures and innovation partnerships.

• (2) In the context of the same procedure, the contracting authority must not include economic operators that did not request to participate, or candidates that do not have the required capabilities.

• (3) A contracting authority must indicate, in the contract notice or in the invitation to confirm interest, the objective and non-discriminatory criteria or rules that the authority intends to apply, the minimum number of candidates the authority intends to invite and, where applicable the maximum number.

• (4) The minimum number of candidates that may be indicated by a contracting authority is—

• (a) in the restricted procedure, 5;

• (b) in the competitive procedure with negotiation, the competitive dialogue procedure and in the innovation partnership procedure, 3.

• (5) In any event the number of candidates invited must be sufficient to ensure genuine competition.

• (6) Subject to paragraph (7), a contracting authority must invite a number of candidates at least equal to the minimum number indicated in accordance with paragraph (3).

• (7) Where the number of candidates meeting the selection criteria and the minimum levels of ability as referred to in regulation 59(20) (selection criteria) is below the minimum number, the contracting authority may continue the procedure by inviting the candidates with the required capabilities.

• (8) In the context of the same procedure, the contracting authority must not include economic operators that did not request to participate, or candidates that do not have the required capabilities.

Contract award criteria

67

• (1) A contracting authority—

• (a) must base the award of public contracts on the most economically advantageous tender assessed from the point of view of the contracting authority; and

• (b) may not use price only or cost only as the sole award criteria.

• (2) A contracting authority must identify the most economically advantageous tender on the basis of the best price‑quality ratio, which must be assessed on the basis of criteria linked to the subject-matter of the public contract in question and must include the price or cost, using a cost-effectiveness approach.

• (3) A cost-effectiveness approach referred to in paragraph (2) may include life-cycle costing in accordance with regulation 68 (life-cycle costing).

• (4) Criteria referred to in paragraph (2) may comprise or include—

• (a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics and trading and its conditions;

• (b) organisation, qualification and experience of staff assigned to performing the contract, where the quality of the staff assigned can have a significant impact on the level of performance of the contract; or

• (c) after-sales service and technical assistance, delivery conditions such as delivery date, delivery process and delivery period or period of completion.

• (5) The cost element may also take the form of a fixed price or cost on the basis of which economic operators will compete on quality criteria only.

• (6) Award criteria must be considered to be linked to the subject-matter of the contract where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in—

• (a) the specific process of production, provision or trading of those works, supplies or services; or

• (b) a specific process for another stage of their life cycle,

even where such factors do not form part of their material substance.

• (7) Award criteria must—

• (a) not have the effect of conferring an unrestricted freedom of choice upon the contracting authority;

• (b) ensure the possibility of effective competition; and

• (c) be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria.

• (8) In case of doubt, the contracting authority must verify effectively the accuracy of the information and proof provided by the tenderers.

• (9) The contracting authority must specify, in the procurement documents, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.

• (10) The weightings referred to in paragraph (9) may be expressed by providing for a range with an appropriate maximum spread.

• (11) Where weighting is not possible for objective reasons, the contracting authority must indicate the criteria in decreasing order of importance.

Life-cycle costing

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• (1) Life-cycle costing must, to the extent relevant, cover part or all of the following costs over the life cycle of a product, service or works—

• (a) costs, borne by the contracting authority or other users, such as—

• (i) costs relating to acquisition;

• (ii) costs of use, such as consumption of energy and other resources;

• (iii) maintenance costs;

• (iv) end of life costs, such as collection and recycling costs; and

• (b) costs imputed to environmental externalities linked to the product, service or works during its life cycle, provided their monetary value can be determined and verified.

• (2) The costs mentioned in paragraph (1)(b) may include the cost of emissions of greenhouse gases and of other pollutant emissions and other climate change mitigation costs.

• (3) The method used for the assessment of costs imputed to environmental externalities must fulfil all of the following conditions—

• (a) it is based on objectively verifiable and non-discriminatory criteria and, in particular, where it has not been established for repeated or continuous application, it must not unduly favour or disadvantage certain economic operators;

• (b) it is accessible to all interested parties;

• (c) the data required can be provided with reasonable effort by normally diligent economic operators....

• (4) Where a contracting authority assesses costs using a life-cycle costing approach, the authority must indicate in the procurement documents—

• (a) the data to be provided by the tenderers; and

• (b) the method which the contracting authority will use to determine the life-cycle costs on the basis of those data.

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

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Abnormally low tenders

69

• (1) A contracting authority must require a tenderer to explain the price or costs proposed in the tender where the tender appears to be abnormally low in relation to the works, supplies or services.

• (2) The explanations given in accordance with paragraph (1) may, in particular, relate to—

• (a) the economics of the manufacturing process, of the services provided or of the construction method;

• (b) the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the execution of the works or for the supply of the products or services;

• (c) the originality of the works, supplies or services proposed by the tenderer;

• (d) compliance with obligations referred to in regulation 57(2) (general principles);

• (e) compliance with obligations referred to in regulation 71 (subcontracting);

• (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (g) whether the price or costs take into account the grant of subsidies.

• (3) The contracting authority must assess the information provided by consulting the tenderer.

• (4) The contracting authority may only reject the tender where the explanations given and any evidence supplied do not satisfactorily account for the low level of price or costs proposed, taking into account the elements referred to in paragraph (2).

• (5) The contracting authority must reject the tender where the authority has established that the tender is abnormally low because it does not comply with applicable obligations referred to in regulation 57(2) (general principles).

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SECTION 6 — Contract Performance

Conditions for performance of contracts

70

• (1) A contracting authority may lay down special conditions relating to the performance of a contract, provided that they are—

• (a) linked to the subject-matter of the contract within the meaning of regulation 67(6) (contract award criteria); and

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

• (2) Such conditions may include economic, innovation-related, environmental, social or employment-related considerations.

Subcontracting

71

• (1) In the procurement documents, the contracting authority may ask the tenderer to indicate in its tender any share of the contract that the tenderer may intend to subcontract to third parties and information about any proposed subcontractors including their name and contact details.

• (2) Paragraph (1) is without prejudice to the liability of the main contractor under the contract.

• (3) Where paragraph (4) applies, the contracting authority must require the main contractor to notify it, at the latest when the performance of the contract commences, of the name, contact details and legal representatives of its subcontractors, involved in such works or services, in so far as known at the time.

• (4) This paragraph applies in the case of—

• (a) a public works contract;

• (b) a public services contract including services to be provided at a facility under the direct oversight of the contracting authority.

• (5) The contracting authority must require the main contractor to notify the authority of—

• (a) any changes to that information during the course of the contract; and

• (b) the name, contact details and legal representatives for any new subcontractors which the contractor subsequently involves in such works or services.

• (6) Paragraphs (3) and (5) do not apply to subcontractors who provide only supplies.

• (7) Where necessary for the purposes of paragraph (9), the required information must be accompanied by SPDs in respect of the subcontractors.

• (8) A contracting authority may require a contractor to provide information of the kind referred to in paragraphs (3) and (5) in respect of any one or more of the following—

• (a) supply contracts or services contracts (other than those concerning services to be provided at the facilities under the direct oversight of the contracting authority);

• (b) suppliers involved in works or services contracts;

• (c) subcontractors of the main contractor's subcontractors and other contractors further down the subcontracting chain.

• (9) A contracting authority may, in accordance with regulations 60 (single procurement document: use, content and form of the SPD) and 61 (means of proof), verify whether there are grounds for exclusion of subcontractors under regulation 58 (exclusion grounds).

• (10) The contracting authority must require the economic operator to replace a subcontractor in respect of which the verification has shown that there are compulsory grounds for exclusion.

• (11) The contracting authority may require the economic operator to replace a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.

Modification of contracts during their term

72

• (1) A contract and framework agreement may be modified without a new procurement procedure—

• (a) where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses or options, provided that such clauses—

• (i) state the scope and nature of possible modifications or options as well as the conditions under which they may be used; and

• (ii) do not provide for modifications or options that would alter the overall nature of the contract or framework agreement;

• (b) to provide for additional works, supplies or services by the original contractor that have become necessary and were not included in the initial procurement, where a change of contractor—

• (i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and

• (ii) would cause significant inconvenience or substantial duplication of costs for the contracting authority,

provided that any increase in price does not exceed 50% of the initial contract value;

• (c) where all of the following conditions are fulfilled—

• (i) the need for modification has been brought about by circumstances which a diligent contracting authority could not have foreseen;

• (ii) the modification does not alter the overall nature of the contract or framework;

• (iii) any increase in price does not exceed 50 % of the initial contract value or framework agreement;

• (d) where a new contractor replaces one to which the contracting authority had initially awarded the contract or framework as a consequence of—

• (i) an unequivocal review clause or option in conformity with sub-paragraph (a); or

• (ii) complete or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, by another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract or framework and is not aimed at circumventing the application of this Part;

• (e) where the modifications, irrespective of their value, are not substantial (as defined in paragraph (8)); or

• (f) where paragraph (5) applies.

• (2) Where several successive modifications are made—

• (a) the limitations imposed by the proviso at the end of paragraph (1)(b) and in paragraph (1)(c)(iii) shall apply to the value of each modification; and

• (b) such successive modifications must not be aimed at circumventing these Regulations.

• (3) A contracting authority which has modified a contract or framework in either of the cases described in paragraph (1)(b) and (c) must submit a notice to that effect for publication in accordance with regulation 52 (publication on the UK e-notification service).

• (4) Such a notice must contain the information set out in Part G of Annex V to the Directive , but as if—

• (a) paragraph 9 (financing by EU funds) were omitted,

• (b) in paragraph 11, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Public Contracts (Scotland) Regulations 2015)”, and

• (c) in paragraph 12, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

• (5) This paragraph applies where the value of the modification is below both of the following values—

• (a) the relevant threshold mentioned in regulation 5 (thresholds); and

• (b) 10 % of the initial contract value for service and supply contracts or frameworks and 15% of the initial contract value for works contracts or frameworks,

provided that the modification does not alter the overall nature of the contract or framework agreement.

• (6) For the purposes of paragraph (5), where several successive modifications are made, the value must be the net cumulative value of the successive modifications.

• (7) For the purpose of the calculation of—

• (a) the price mentioned in paragraph (1)(b) and (c); and

• (b) the values mentioned in paragraph (5)(b),

the updated figure shall be the reference figure when the contract or framework includes an indexation clause.

• (8) A modification of a contract or a framework agreement during its term must be considered substantial for the purpose of paragraph (1)(e) where—

• (a) the modification renders the contract or the framework agreement materially different in character from the one initially concluded;

• (b) the modification introduces conditions which, had they been part of the initial procurement procedure, would have—

• (i) allowed for the admission of candidates other than those initially selected;

• (ii) allowed for the acceptance of a tender other than that originally accepted; or

• (iii) attracted additional participants in the procurement procedure;

• (c) the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement;

• (d) the modification extends the scope of the contract or framework agreement considerably; or

• (e) a new contractor replaces one to which the contracting authority had initially awarded the contract or framework in cases other than those provided for in paragraph (1)(d).

• (9) A new procurement procedure in accordance with these Regulations is required for modifications of the provisions of a public contract or a framework agreement during its term other than those provided for in this regulation.

Termination of contracts

73

• (1) A contracting authority must ensure that every public contract or framework which the authority awards contains provisions enabling the authority to terminate the contract or framework where—

• (a) the contract or framework has been subject to a substantial modification which would have required a new procurement procedure in accordance with regulation 72(9) (modification of contracts during their term); or

• (b) the contractor has, at the time of contract award, been in one of the situations referred to in regulation 58(1) (exclusion grounds), including as a result of the application of regulation 58(2), and should therefore have been excluded from the procurement procedure; ...

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) Those provisions may address the basis on which the power is to be exercisable in those circumstances, for example by providing for notice of termination to be given and by addressing consequential matters that will or might arise from the termination.

• (3) To the extent that a public contract or framework does not contain provisions enabling the contracting authority to terminate the contract or framework on any of the grounds mentioned in paragraph (1), a power for the contracting authority to do so on giving notice to the contractor shall be an implied term of that contract or framework.

• (4) A contracting authority must not terminate a public contract in a manner that circumvents the obligations under these Regulations.

CHAPTER 3 — PARTICULAR PROCUREMENT REGIMES

SECTION 7 — Social and Other Specific Services

Award of contracts for social and other specific services

74

A public contract or framework for social and other specific services listed in Schedule 3 must be awarded in accordance with this Section, where the value of the contract or framework is equal to or greater than the threshold indicated in regulation 5(1)(d) (thresholds).

Publication of notices

75

• (1) A contracting authority intending to award a public contract or framework for the services referred to in regulation 74 (award of contracts for social and other specific services) must make known its intention by means of—

• (a) a contract notice, which must contain the information set out in Part H of Annex V to the Directive;...

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

• (2) Paragraph (1) shall not apply where a negotiated procedure without prior publication could have been used in accordance with regulation 33 (use of the negotiated procedure without prior publication) for the award of the contract.

• (3) A contracting authority that has awarded a contract or framework for the services referred to in regulation 74 (award of contracts for social and other specific services) must make known the results of the procurement procedure by means of a contract award notice, which must contain the information referred to in Part J of Annex V to the Directive.

• (4) A contracting authority may, however, group notices referred to in paragraph (3) on a quarterly basis, in which case it must submit the grouped notices within 30 days of the end of each quarter.

• (5) A contracting authority must submit the notices, referred to in this regulation, for publication in accordance with regulation 52 (publication on the UK e-notification service).

Principles of awarding contracts

76

• (1) A contracting authority must determine the procedure that is to be applied in connection with the award of a contract or framework subject to this Section and may take into account—

• (a) the specificities of the services in question; and

• (b) the requirements and needs of users.

• (2) The procedure must be at least sufficient to ensure compliance with the principles of transparency and equal treatment of economic operators.

• (3) The procedure must provide for the exclusion from participation in the procurement of any economic operator in relation to which mandatory exclusion referred to in regulation 58(1) and (3) (exclusion grounds) applies and the contracting authority must not award a contract or framework agreement to such economic operator.

• (4) In particular, where, in accordance with regulation 75 (publication of notices), a contract notice ... has been published in relation to a procurement, the contracting authority must, except in the circumstances mentioned in paragraph (5), conduct that procurement, and award any resulting contract, in conformity with the information contained in the notice about—

• (a) conditions for participation;

• (b) time limits for contacting the contracting authority; and

• (c) the award procedure to be applied.

• (5) The contracting authority may, however, conduct the procurement, and award any resulting contract, in a way which is not in conformity with that information, but only if all of the following conditions are met—

• (a) the failure to conform does not, in the particular circumstances, amount to a breach of the principles of transparency and equal treatment of economic operators;

• (b) the contracting authority has—

• (i) after giving due consideration to the matter, concluded that sub-paragraph (a) is applicable;

• (ii) documented that conclusion and the reasons for it in accordance with regulation 83(7) and (8) (reporting and documentation requirements); and

• (iii) informed the participants of the respects in which the contracting authority intends to proceed in a way which is not in accordance with the information contained in the notice.

• (6) In paragraph (5)(b)(iii), “participants” means any economic operators which have responded to the notice and not been informed by the contracting authority that they are no longer under consideration for the award of a contract within the scope of the procurement concerned.

• (7) All time limits imposed upon economic operators for the purposes of this regulation, whether for responding to a contract notice or taking any other steps in the relevant procedure, must be reasonable and proportionate having regard to the nature of the requirement and the needs of service users.

• (8) Without prejudice to the generality of paragraph (1), a contracting authority may apply procedures for the purposes of this regulation which correspond (with or without variations) to procedures, techniques or other features otherwise provided for in these Regulations, as well as procedures which do not.

• (9) In relation to the award of contracts subject to this regulation, a contracting authority may take into account—

• (a) the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services;

• (b) the specific needs of different categories of users, including disadvantaged and vulnerable groups;

• (c) the involvement and empowerment of users;

• (d) innovation; and

• (e) any other relevant consideration.

• (10) A contracting authority must award a contract or framework for services listed in Schedule 3 on the basis of the tender representing the best price quality ratio, taking into account quality and sustainability criteria for such services.

SECTION 8 — Rules Governing Design Contests

Scope of Section 8

77

• (1) This Section applies to—

• (a) design contests organised as part of a procedure leading to the award of a public service contract;

• (b) design contests with prizes or payments to participants.

• (2) In the cases referred to in paragraph (1)(a), the threshold referred to in regulation 5 (thresholds) is calculated on the basis of the estimated value net of VAT of the public service contract, including any possible prizes or payments to participants.

• (3) In the cases referred to in paragraph (1)(b), the threshold referred to in regulation 5 (thresholds) is calculated on the basis of the total amount of the prizes and payments, including the estimated value net of VAT of the public services contract which might subsequently be concluded following a negotiated procedure without prior publication in accordance with regulation 33(6) and (7) (use of the negotiated procedure without prior publication) if the contracting authority has announced its intention to award such a contract in the contest notice.

Notices

78

• (1) A contracting authority that intends to carry out a design contest must make known its intention by means of a contest notice which includes the information set out in Part E of Annex V to the Directive , but as if—

• (a) in paragraph 2, “the second and third sub-paragraphs of Article 53(1)” were a reference to regulation 54(3) and (4) of these Regulations,

• (b) in paragraph 16, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

• (2) Where a contracting authority intends to award a subsequent service contract under regulation 33(6) (use of the negotiated procedure without prior publication), this must be indicated in the contest notice.

• (3) The contracting authority must submit the contest notice for publication in accordance with regulation 52 (publication on the UK e-notification service).

• (4) A contracting authority that has held a design contest must—

• (a) submit a notice of the results of the contest for publication in accordance with regulation 52 (publication on the UK e-notification service); and

• (b) be able to prove the date on which the notice was submitted to the UK e-notification service.

• (5) The notice of the results of the contest must include the information set out in Part F of Annex V to the Directive , but as if—

• (a) paragraph 12 (financing by EU funds) were omitted,

• (b) in paragraph 13, “in the Official Journal of the European Union “ read “on the UK e-notification service (within the meaning of the Public Contracts (Scotland) Regulations 2015”, and

• (c) in paragraph 14, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

• (6) A contracting authority may withhold from publication information on the result of the contest where the release of the information—

• (a) would impede law enforcement or otherwise be contrary to the public interest;

• (b) would prejudice the commercial interests of any person; or

• (c) might prejudice fair competition between economic operators.

Rules on the organisation of design contests and the selection of participants

79

• (1) When organising a design contest, a contracting authority must apply procedures which are adapted to the provisions of Chapter 1 and this Section.

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

• (3) Where a design contest is restricted to a limited number of participants, the contracting authority must—

• (a) lay down clear and non-discriminatory selection criteria; and

• (b) ensure that the number of candidates invited to participate is sufficient to ensure genuine competition in so far as there are enough qualified candidates.

Appointment and composition of the jury

80

• (1) A contracting authority must appoint a jury which must be composed exclusively of natural persons who are independent of participants in the contest.

• (2) Where a particular professional qualification is required from participants in a contest, at least a third of the members of the jury must have that qualification or an equivalent qualification.

Decisions of the jury

81

• (1) The jury must be autonomous in its decisions and opinions.

• (2) The jury must examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice.

• (3) The jury must record its ranking of projects in a report, signed by its members, made according to the merits of each project, together with its remarks and any points that may need clarification.

• (4) Anonymity must be observed until the jury has reached its opinion or decision.

• (5) Candidates may be invited, if need be, to answer questions that the jury has recorded in the minutes to clarify any aspect of the projects.

• (6) Complete minutes must be recorded of the dialogue between jury members and candidates.

CHAPTER 4 — RECORDS AND REPORTS

Retention of contract copies

82

• (1) A contracting authority must, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than—

• (a) £884,720 in the case of public supply contracts or public service contracts;

• (b) £8,847,200 in the case of public works contracts.

• (2) A contracting authority must grant access to those contracts, but access to specific documents or items of information may be denied to the extent and on the conditions provided for in the rules on access to documents and data protection applicable in the relevant part of the United Kingdom.

Reporting and documentation requirements

83

• (1) Subject to paragraph (2), every contract or framework agreement covered by this Part, and every time a dynamic purchasing system is established, a contracting authority must draw up a written report which must include—

• (a) the name and address of the contracting authority, the subject-matter and value of the contract, framework agreement or dynamic purchasing system;

• (b) where applicable, the results of the qualitative selection and reduction of numbers pursuant to regulations 66 (reduction of the number of otherwise qualified candidates to be invited to participate) and 67 (contract award criteria), namely—

• (i) the names of the selected candidates or tenderers and the reasons for their selection; and

• (ii) the names of the candidates or tenderers rejected and the reasons for their rejection;

• (c) the reasons for the rejection of any tenders found to be abnormally low;

• (d) the name of the successful tenderer and the reasons why its tender was selected;

• (e) where known by the contracting authority—

• (i) the share (if any) of the contract or framework agreement which the successful tenderer intends to subcontract to third parties; and

• (ii) the names of the main contractor's subcontractors (if any);

• (f) for competitive procedures with negotiation and competitive dialogues, the circumstances as laid down in regulation 27 (choice of procedures) which justify the use of those procedures;

• (g) for negotiated procedures without prior publication, the circumstances referred to in regulation 33 (use of the negotiated procedure without prior publication) which justify the use of this procedure;

• (h) where applicable, the reasons why the contracting authority has decided not to award a contract or framework agreement or to establish a dynamic purchasing system;

• (i) where applicable, the reasons why means of communication other than electronic means have been used for the submission of tenders; and

• (j) where applicable, conflicts of interests detected and subsequent measures taken.

• (2) A report referred to in paragraph (1) is not required in respect of contracts based on framework agreements where these are concluded in accordance with regulation 34(6) or (7)(a) (framework agreements).

• (3) To the extent that the contract award notice drawn up in accordance with regulation 51 (contract award notices) or 75(3) (publication of notices) contains the information required in this paragraph, a contracting authority may refer to that notice.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) Where the Scottish Ministers so request, the report, or its main elements, must be communicated to the Scottish Ministers ....

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) A contracting authority must document the progress of all procurement procedures, whether or not those are conducted by electronic means.

• (8) To that end, a contracting authority must ensure that the authority keeps sufficient documentation to justify decisions taken in all stages of the procurement procedure, such as documentation on—

• (a) communications with economic operators and internal deliberations;

• (b) preparation of the procurement documents;

• (c) dialogue or negotiation (if any);

• (d) selection and award of the contract.

• (9) The documentation must be kept for a period of at least 3 years from the date of award of the contract.

PART 3 — REMEDIES

CHAPTER 5 — FACILITATION OF REMEDIES

Scope of Chapter 5

84

This Chapter applies to procurements falling within the scope of Part 2.

Notices of decisions to award a contract or conclude a framework agreement

85

• (1) Subject to paragraphs (4) and (5), a contracting authority must, by notice in writing as soon as possible after the decision has been made, inform all tenderers and candidates concerned of its decision to award the contract, conclude the framework agreement or establish a dynamic purchasing system.

• (2) The notice referred to in paragraph (1) must include—

• (a) the criteria for the award of the contract, conclusion of the framework agreement or establishment of the dynamic purchasing system;

• (b) where practicable, the score obtained by the economic operator which is to receive the notice;

• (c) the name of and ,where practicable, the score obtained by the economic operator—

• (i) to be awarded the contract;

• (ii) to become a party to the framework agreement; or

• (iii) to be admitted to the dynamic purchasing system;

• (d) in the case of an unsuccessful tenderer—

• (i) a summary of the reasons why the tenderer was unsuccessful; and

• (ii) the characteristics and relative advantages of the successful tender;

• (e) in the case of an unsuccessful candidate concerned, a summary of the reasons why the candidate was unsuccessful; and

• (f) a precise statement of the effect of regulation 86 (standstill period) on the economic operator which is to receive the notice.

• (3) The reasons referred to in paragraph (2)(d)(i) and (2)(e) must include any reason for the contracting authority's decision that the economic operator did not meet the technical specifications—

• (a) in an equivalent manner as mentioned in regulation 43(14) (technical specifications); or

• (b) because compliance with a specification mentioned in regulation 43(13) (technical specifications) does not address the performance or functional requirements laid down by the contracting authority.

• (4) Paragraph (1) does not apply where—

• (a) the only tenderer is the economic operator to be awarded the contract or to become a party to the framework agreement, and there are no candidates concerned;

• (b) the contract is a contract awarded under a framework agreement or a dynamic purchasing system; or

• (c) the contract or framework agreement is exempt from the requirement for prior publication of a contract notice.

• (5) A contracting authority may withhold any information to be provided in accordance with the preceding requirements of this regulation where the release of such information—

• (a) would impede law enforcement or would otherwise be contrary to the public interest;

• (b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or

• (c) might prejudice fair competition between economic operators.

• (6) Subject to paragraph (5), a contracting authority must within 15 days of the date on which it receives a request in writing from any economic operator—

• (a) if it was unsuccessful, inform that economic operator of the reasons why it was unsuccessful, including any reason referred to in paragraph (3);

• (b) in the case of an unsuccessful tenderer, other than a tenderer which has been informed by notice under paragraph (1), inform that tenderer of the characteristics and relative advantages of the successful tender and the name of—

• (i) the economic operator to be awarded the contract;

• (ii) the parties to the framework agreement; or

• (iii) the economic operators admitted to the dynamic purchasing system; and

• (c) if it was successful, a description of any improvements the contracting authority considers the tenderer could have made to its tender.

• (7) Subject to paragraph (5), a contracting authority must by notice in writing, as soon as possible after the decision has been made, inform all candidates and tenderers of its decision to abandon or recommence a contract award procedure in respect of which a contract notice has been published in relation to—

• (i) the award of a contract;

• (ii) the conclusion of a framework agreement; or

• (iii) the establishment of a dynamic purchasing system.

• (8) Where a contracting authority provides information in accordance with paragraph (7) it must include the reasons for its decision and, if so requested by an economic operator, must provide the information and reasons in writing.

• (9) In this regulation—

• “candidate” means a candidate, as defined in regulation 2(1), which—is not a tenderer; andhas not been informed of the rejection of its application and the reasons for it;

• “tenderer” means a tenderer, as defined in regulation 2(1), which has not been definitively excluded.

• (10) For the purposes of paragraph (9), an exclusion is definitive if, and only if, the tenderer has been notified of the exclusion and either—

• (a) the exclusion has been held to be lawful in proceedings under Chapter 6 (applications to the court); or

• (b) the time limit for starting such proceedings has expired even on the assumption that the Court would have granted the maximum extension permitted by regulation 88(4) (enforcement of duties through the courts).

Standstill period

86

• (1) A contracting authority must allow a period of at least the relevant standstill period to elapse between the date of despatch of the notice referred to in regulation 85(1) (notices of decisions to award a contract or conclude a framework agreement) and the date on which that contracting authority enters into the contract or concludes the framework agreement.

• (2) Paragraph (1) does not apply where—

• (a) the contract or framework agreement is exempt from the requirement for prior publication of a contract notice;

• (b) there are no tenderers concerned or candidates concerned;

• (c) a notice is not required to be given under regulation 85(1) (notices of decisions to award a contract or conclude a framework agreement).

• (3) Where notice is sent to all economic operators by facsimile or electronic means, the standstill period is a period of 10 days ending at midnight at the end of the 10th day after that on which the last notice is sent.

• (4) Where the notice is sent to any economic operators only by other means, the standstill period is a period of 15 days ending at midnight at the end of the 15th day after that on which the last notice is sent.

CHAPTER 6 — APPLICATIONS TO THE COURT

Duty owed to economic operators

87

• (1) The obligation on a contracting authority to comply with the provisions of these Regulations (except where otherwise specified) ... is a duty owed to an economic operator from the United Kingdom or Gibraltar.

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

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

• (3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Enforcement of duties through the courts

88

• (1) A breach of the duty owed in accordance with regulation 87 (duty owed to economic operators) is actionable by any economic operator which, in consequence of the breach, suffers, or risks suffering, loss or damage.

• (2) Any proceedings for the purposes of paragraph (1) must be brought in the Sheriff Court or the Court of Session.

• (3) Proceedings under this regulation may not be brought unless—

• (a) the economic operator bringing the proceedings has informed the contracting authority of—

• (i) the breach or apprehended breach of the duty owed to it in accordance with regulation 87 (duty owed to economic operators); and

• (ii) of its intention to bring proceedings under this Part in respect of that breach or apprehended breach; and

• (b) the proceedings are brought in accordance with paragraph (4).

• (4) For the purpose of paragraph (3)(b), proceedings must be brought—

• (a) in the case of proceedings seeking an ineffectiveness order (as defined in regulation 91 (ineffectiveness orders))—

• (i) where paragraph (5) applies, within 30 days from the relevant date referred to in that paragraph; and

• (ii) in any other case, within 6 months from the date of the contract being entered into or the date of conclusion of the framework agreement; and

• (b) in any other case, within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen unless the court considers that there is a good reason for extending the period within which proceedings may be brought, in which case the court may extend that period up to a maximum of 3 months from that date.

• (5) For the purpose of paragraph (4)(a)(i), this paragraph applies where—

• (a) the contracting authority has submitted a contract award notice to the UK e-notification service in accordance with regulation 52 (publication on the UK e-notification service), including reasons for its decision to enter into the contract or conclude the framework agreement without prior publication of a contract notice, in which case the relevant date is the date of submission to the UK e-notification service; or

• (b) the contracting authority has by notice in writing informed all tenderers concerned and all candidates concerned (if any) of its decision in relation to the award of the contract or the conclusion of the framework agreement, and the notice includes the information referred to in regulation 85(2)(d)(i), or as the case may be, (e)(notices of decisions to award a contract or conclude a framework agreement), in which case the relevant date is the date of sending of the notice.

Automatic Suspension of authority power to proceed with contract award

89

• (1) Without prejudice to the application of any relevant standstill period, where proceedings under this Part are served on a contracting authority in relation to a contract that has not been entered into, a framework agreement that has not been concluded or a dynamic purchasing system that has not been established, the contracting authority must not enter into the contract, conclude the framework agreement or establish the dynamic purchasing system unless—

• (a) the proceedings are determined, discontinued or disposed of; or

• (b) the court, by interim order, brings to an end the prohibition.

Powers and duties of the court

90

• (1) Subject to paragraphs (3) and (7), but otherwise without prejudice to any other powers of the court, in proceedings brought under this Part the court—

• (a) may by interim order suspend one or more of the following—

• (i) the procedure leading to the award of a contract, the conclusion of a framework agreement, the establishment of a dynamic purchasing system or the determination of a design contest;

• (ii) the implementation of any decision or action taken by the contracting authority in the course of following a procedure referred to in paragraph (i);

• (b) if satisfied that a decision or action taken by a contracting authority was in breach of the duty owed under regulation 87 (duty owed to economic operators), may do one or more of the following—

• (i) order the setting aside of that decision or action;

• (ii) order the contracting authority to amend any document;

• (iii) award damages to an economic operator which has suffered loss or damage as a consequence of the breach.

• (2) In any interim proceedings under this Part the court may decide not to grant an interim order when the negative consequences of such an order are likely to outweigh the benefits, having regard to the following considerations—

• (a) that decisions taken by a contracting authority must be reviewed effectively and, in particular, as rapidly as possible;

• (b) the probable consequences of an interim order for all interests likely to be harmed; and

• (c) the public interest.

• (3) Where the court is satisfied that regulation 91(8)(a) (ineffectiveness orders) applies but the second ground for ineffectiveness is not otherwise met, the court must, without prejudice to the other powers of the court, order—

• (a) the payment by the contracting authority of a financial penalty; or

• (b) the shortening of the duration of the contract or framework agreement awarded following the procurement in relation to which the breach occurred.

• (4) In determining what order to make under paragraph (3) the court must—

• (a) ensure that the order is effective, proportionate and dissuasive; and

• (b) have regard to all relevant factors including—

• (i) the seriousness of the breach; and

• (ii) the behaviour of the contracting authority.

• (5) Where the court makes an order under paragraph (3)(b) the court must, without prejudice to the other powers of the court, make such other order as the court considers appropriate to address the consequences of the shortening of the duration of the contract or framework agreement on the rights and obligations of the parties to the contract or framework agreement.

• (6) Before making an order under paragraph (5), the court must have regard to any terms of the contract or framework agreement relating to the rights and obligations of the parties should the duration of the contract or framework agreement be shortened.

• (7) Subject to paragraph (3) and regulation 91 (ineffectiveness orders), in proceedings under this Part the court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed under regulation 87 (duty owed to economic operators) if the contract in relation to which the breach occurred has been entered into, or the framework agreement in relation to which the breach occurred has been concluded.

• (8) Sections 21 and 42 of the Crown Proceedings Act 1947 do not apply in proceedings brought under this Part against the Crown.

Ineffectiveness orders

91

• (1) Without prejudice to all rights and obligations in respect of the period leading up to the date of the order, an ineffectiveness order made in relation to a contract renders unenforceable all rights and obligations directly arising from the contract in respect of the period commencing on the date of the order.

• (2) Subject to any order made under regulation 92(1)(b) (powers of the court), obligations rendered unenforceable by an ineffectiveness order made in relation to a contract must not be performed by the parties to the contract.

• (3) Without prejudice to any power of the court to make an ineffectiveness order in relation to a contract based on a framework agreement in accordance with this Part, an ineffectiveness order made in relation to a framework agreement prohibits, with effect from the date of the order, the awarding of contracts based on the framework agreement.

• (4) Subject to paragraph (5) and regulation 93 (general interest grounds for not making a declaration of ineffectiveness), the court must make an ineffectiveness order where—

• (a) the first ground for ineffectiveness referred to in paragraph (6) applies;

• (b) the second ground for ineffectiveness referred to in paragraph (8) applies; or

• (c) the third ground for ineffectiveness referred to in paragraph (9) applies.

• (5) In proceedings under this Part to which regulation 88(4)(b) (enforcement of duties through the courts) applies, the court does not have power to make an ineffectiveness order if the proceedings would be incompetent if regulation 88(4)(a) applied to the proceedings.

First ground for ineffectiveness6The first ground for ineffectiveness applies where the contracting authority has entered into a contract or has concluded a framework agreement without submitting a contract notice to the UK e-notification service in circumstances where the contract or framework agreement was not exempt from the requirement for prior publication of a contract notice.7The first ground for ineffectiveness does not apply where—athe contracting authority submitted to the UK e-notification service for publication a voluntary ex ante transparency notice expressing its intention to enter into the contract or to conclude the framework agreement and containing—ithe name and contact details of the contracting authority,iia description of the object of the contract or framework agreement,iiia justification of the decision of the contracting authority to award the contract or conclude the framework agreement without prior publication of a contract notice,ivthe name and contact details of the economic operator to be awarded the contract or to become party to the framework agreement, andvany other information which the contracting authority considered useful, andbthe contracting authority allowed a period of at least 10 days to elapse between the date of publication on the UK e-notification service of the notice referred to in sub-paragraph (a) and the date on which the contracting authority entered into the contract or concluded the framework agreement.

Second ground for ineffectiveness8The second ground for ineffectiveness applies where all of the following apply—athe contracting authority has breached regulation 85(1) (notices of decisions to award a contract or conclude a framework agreement), 86(1) (standstill period) or 89 (automatic suspension of authority power to proceed with contract award);bthe contracting authority's breach referred to in sub-paragraph (a) prevented the economic operator from bringing proceedings or obtaining a remedy before the contract was entered into or the framework agreement was concluded;cin awarding the contract or concluding the framework agreement there has been a breach of the duty owed to the economic operator under these Regulations, other than a breach of regulations 85(1) (notices of decisions to award a contract or conclude a framework agreement), 86(1) (standstill period) or this Part;dthe contracting authorities' breach referred to in sub-paragraph (c) has affected the chances of the economic operator bringing proceedings under this Part to obtain the contract or become a party to the framework agreement.

Third ground for ineffectiveness9The third ground for ineffectiveness applies where—athe contract is a contract based on a framework agreement or a contract awarded under a dynamic purchasing system;bthe contract was awarded in breach of—iregulations 34(7)(b) or (c) or 34(10) (framework agreement), in the case of a contract based on a framework agreement (rules governing the award of contracts based on a framework agreement); oriiregulation 35(19) to (23) (dynamic purchasing systems), in the case of a contract awarded under a dynamic purchasing system (rules governing the award of contracts under a dynamic purchasing system); andcthe estimated value of the contract at the relevant time is equal to or greater than the relevant threshold.10The third ground for ineffectiveness does not apply where the contracting authority—aconsidered the award of the contract to be in accordance with the provisions mentioned in paragraph (9)(b);bhas, despite regulation 85(4)(b) (notices of decisions to award a contract or conclude a framework agreement), by notice in writing informed the economic operators that submitted tenders of its decision in relation to the award of the contract and the notice included the information referred to in regulation 85(1) to (3) (notices of decisions to award a contract or conclude a framework agreement); andchas allowed a period of at least the relevant standstill period to elapse between the date of sending of the notice of its decision to award the contract and the date on which the contracting authority entered into the contract.

Powers of the court

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• (1) If an ineffectiveness order is made, the court must, without prejudice to the other powers of the court—

• (a) order the payment by the contracting authority of a financial penalty; and

• (b) make such other order as the court considers appropriate to address the consequences of the ineffectiveness order on the rights and obligations of the parties to the contract or framework agreement.

• (2) In the case of an order made under paragraph (1)(a), the court must have regard to the extent to which the contract or framework agreement will remain in effect in respect of the period leading up to the date of the ineffectiveness order.

• (3) Before making an order under paragraph (1)(b), the court must have regard to any terms of the contract or framework agreement relating to the rights and obligations of the parties should an ineffectiveness order be made in relation to the contract or framework agreement.

General interest grounds for not making a declaration of ineffectiveness

93

• (1) The court may decline to make an ineffectiveness order where the court is satisfied that overriding reasons relating to a general interest require that the enforceability of the rights and obligations arising from the contract or framework agreement should be maintained.

• (2) For the purposes of paragraph (1)—

• (a) economic interests directly linked to the contract or framework agreement do not constitute overriding reasons relating to a general interest; and

• (b) economic interests in the effectiveness of the contract or framework agreement may only be considered as overriding reasons relating to a general interest in exceptional circumstances where ineffectiveness would lead to disproportionate consequences.