The Public Supply Contracts Regulations 1991

• HM Treasury Central Computer and Telecommunications Agency Chessington Computer Centre Civil Service Catering Organisation National Economic Development Council Rating of Government Property Department

• Welsh Office Ancient Monuments (Wales) Commission Council for the Education and Training of Health Visitors Local Government Boundary Commission for Wales Local Valuation Panels and Courts National Health Service Authorities Rent Control Tribunals and Rent Assessment Panels and Committees

SCHEDULE 2 — GOODS FOR THE PURPOSES OF THE THRESHOLDS

The goods for the purposes of regulation 7(2)(a) are those specified in the following chapters of the CCCN (Customs Co-operation Council Nomenclature)

• Chapter 25: Salt; sulphur; earths and stone; plastering materials, lime and cement

• Chapter 26: Metallic ores, slag and ash

• Chapter 27: Mineral fuels, mineral oils and products of their distillation; bituminous substances; mineral waxes except: ex 27.10: special engine fuels

• Chapter 28: Inorganic chemicals; organic and inorganic compounds of precious metals, of rare-earth metals, of radio-active elements and of isotopes except: ex 28.09: explosives ex 28.13: explosives ex 28.14: tear gas ex 28.28: explosives ex 28.32: explosives ex 28.39: explosives ex 28.50: toxic products ex 28.51: toxic products ex 28.54: explosives

• Chapter 29: Organic chemicals except: ex 29.03: explosives ex 29.04: explosives ex 29.07: explosives ex 29.08: explosives ex 29.11: explosives ex 29.12: explosives ex 29.13: toxic products ex 29.14: toxic products ex 29.15: toxic products ex 29.21: toxic products ex 29.22: toxic products ex 29.23: toxic products ex 29.26: explosives ex 29.27: toxic products ex 29.29: explosives

• Chapter 30: Pharmaceutical products

• Chapter 31: Fertilizers

• Chapter 32: Tanning and dyeing extracts; tannins and their derivatives; dyes, colours, paints and varnishes; putty, fillers and stoppings; inks

• Chapter 33: Essential oils and resinoids; perfumery, cosmetic or toilet preparations

• Chapter 34: Soap, organic surface-active agents, washing preparations, lubricating preparations, artificial waxes, prepared waxes, polishing and scouring preparations, candles and similar articles, modelling pastes and “dental waxes”

• Chapter 35: Albuminoidal substances; glues; enzymes

• Chapter 37: Photographs and cinematographic goods

• Chapter 38: Miscellaneous chemical products except: ex 38.19: toxic products

• Chapter 39: Artificial resins and plastic materials, cellulose esters and ethers; articles thereof except: ex 39.03: explosives

• Chapter 40: Rubber, synthetic rubber, factice, and articles thereof except: ex 40.11: bullet-proof tyres

• Chapter 41: Raw hides and skins (other than furskins) and leather

• Chapter 42: Articles of leather; saddlery and harness; travel goods, handbags and similar containers; articles of animal gut (other than silk-worm gut)

• Chapter 43: Furskins and artificial fur; manufacturers thereof

• Chapter 44: Wood and articles of wood; wood charcoal

• Chapter 45: Cork and articles of cork

• Chapter 46: Manufactures of straw of esparto and of other plaiting materials; basketware and wickerwork

• Chapter 47: Paper-making material

• Chapter 48: Paper and paperboard; articles of paper pulp, of paper or of paperboard

• Chapter 49: Printed books, newspapers, pictures and other products of the printing industry; manuscripts, typescripts and plans

• Chapter 65: Headgear and parts thereof

• Chapter 66: Umbrellas, sunshades, walking-sticks, whips, riding-crops and parts thereof

• Chapter 67: Prepared feathers and down and articles made of feathers or of down; artificial flowers; articles of human hair

• Chapter 68: Articles of stone, of plaster, of cement, of asbestos, of mica and of similar materials

• Chapter 69: Ceramic products

• Chapter 70: Glass and glassware

• Chapter 71: Pearls, precious and semi-precious stones, precious metals, rolled precious metals, and articles thereof; imitation jewellery

• Chapter 73: Iron and steel and articles thereof

• Chapter 74: Copper and articles thereof

• Chapter 75: Nickel and articles thereof

• Chapter 76: Aluminium and articles thereof

• Chapter 77: Magnesium and beryllium and articles thereof

• Chapter 78: Lead and articles thereof

• Chapter 79: Zinc and articles thereof

• Chapter 80: Tin and articles thereof

• Chapter 81: Other base metals employed in metallurgy and articles thereof

• Chapter 82: Tools, implements, cutlery, spoons and forks, of base metal; parts thereof except: ex 82.05: tools ex 82.07: tools, parts

• Chapter 83: Miscellaneous articles of base metal

• Chapter 84: Boilers, machinery and mechanical appliances; parts thereof except: ex 84.06: engines ex 84.08: other engines ex 84.45: machinery ex 84.53: automatic data-processing machines ex 84.55: parts of machines under heading No.84.53 ex 84.59: nuclear reactors

• Chapter 85: Electrical machinery and equipment; parts thereof except: ex 85.13: telecommunication equipment ex 85.15: transmission apparatus

• Chapter 86: Railway and tramway locomotives, rolling-stock and parts thereof; railway and tramway tracks fixtures and fittings; traffic signalling equipment of all kinds (not electrically powered) except: ex 86.02: armoured locomotives, electric ex 86.03: other armoured locomotives ex 86.05: armoured wagons ex 86.06: repair wagons ex 86.07: wagons

• Chapter 87: Vehicles, other than railway or tramway rolling-stock, and parts thereof except: 87.08: tanks and other armoured vehicles ex 87.01: tractors ex 87.02: military vehicles ex 87.03: breakdown lorries ex 87.09: motorcycles ex 87.14: trailers

• Chapter 89: Ships, boats and floating structures except: ex 89.01 A: warships

• Chapter 90: Optical, photographic, cinematographic, measuring, checking, precision, medical and surgical instruments and apparatus; parts thereof except: ex 90.05: binoculars ex 90.13: miscellaneous instruments, lasers ex 90.14: telemeters ex 90.28: electrical and electronic measuring instruments ex 90.11: microscopes ex 90.17: medical instruments ex 90.18: mechano-therapy appliances ex 90.19: orthopaedic appliances ex 90.20: X-ray apparatus

• Chapter 91: Clocks and watches and parts thereof

• Chapter 92: Musical instruments; sound recorders or reproducers; television image and sound recorders or reproducers; parts and accessories of such articles

• Chapter 94: Furniture and parts thereof; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings except: ex 94.01 A: aircraft seats

• Chapter 95: Articles and manufactures of carving or moulding material

• Chapter 96: Brooms, brushes, powder-puffs and sieves

• Chapter 98: Miscellaneous manufactured articles

SCHEDULE 3 — FORMS OF NOTICES FOR PUBLICATION IN THE OFFICIAL JOURNAL

PART A — ANNUAL NOTICE OF EXPECTED PUBLIC SUPPLY CONTRACTS

1

Name, address and telephone, telegraphic, telex and facsimile numbers of the contracting authority and of the service from which additional information may be obtained.

2

Nature and quantity or value of the goods to be supplied.

3

Estimated date of the commencement of the procedures leading to the award of the contract(s) (if known).

4

Other information.

5

Date of despatch of the notice.

PART B — OPEN PROCEDURE NOTICE

6

• (a) Final date for receipt of tenders;

• (b) address to which they must be sent;

• (c) language(s) in which they must be drawn up.

7

• (a) Persons authorised to be present at the opening of tenders;

• (b) date, time and place of opening.

8

Where applicable, any deposits and guarantees required.

9

The main terms concerning financing and payment and/or references to the relevant provisions.

10

Where applicable, the legal form to be taken by the grouping of suppliers winning the contract.

11

The information and formalities necessary for an appraisal of the minimum standards of economic and financial standing and technical capacity required of the supplier.

12

Period during which the tenderer is bound to keep open his tender.

13

Criteria for the award of the contract. Criteria other than that of the lowest price shall be mentioned if they do not appear in the contract documents.

14

Other information.

15

Date of despatch of the notice.

PART C — RESTRICTED PROCEDURE NOTICE

PART D — NEGOTIATED PROCEDURE NOTICE

PART E — CONTRACT AWARD NOTICE

Signed

Irvine Patnick — Thomas Sackville — Two of the Lords Commissioners of Her Majesty’s Treasury — 28th November 1991

Explanatory note

(This note is not part of the Regulations)

These Regulations enact in its entirety Council Directive 77/62/EEC co-ordinating procedures for the award of public supply contracts (OJ No. L13, 15.1.77, p.1), as amended by Council Directives 80/767/EEC (OJ No. L215, 18.8.80, p.1), and 88/295/EEC(OJ No. L127, 20.5.88, p.1). They also implement, to the extent that it relates to that Directive, Council Directive 89/665/EEC on the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ No. L395, 30.12.89, p.33).

The Regulations apply to certain public bodies called in the regulations “contracting authorities” (regulation 3) when they are seeking offers in relation to certain contracts for the purchase or hire of goods called in the Regulations “public supply contracts” (regulations 2(1) and 5). They deal in particular with the treatment to be accorded to suppliers or potential suppliers who are nationals of and established in a member State (regulation 4). Certain contracts are excluded from the application of the Regulations, principally where the contracting authority operates in the transport, water, energy and telecommunications fields, secret contracts or contracts for the purchase of certain defence material or connected with international agreements (regulation 6) and those contracts where the value of the contract is beneath the threshold for coverage (regulation 7).

The principal requirement of the Regulations is that, in seeking offers in relation to a public supply contract, a contracting authority must use one of three procedures: the open procedure, whereby any person who is interested may submit a tender; the restricted procedure whereby only those persons selected by the contracting authority may submit tenders; and the negotiated procedure whereby the contracting authority negotiates the terms of the contract with one or more persons selected by it. The Regulations lay down provisions for making the choice of procedure. The negotiated procedure may only be used in certain limited circumstances (regulation 10).

The contracting authority is required to publicise its intention to seek offers in relation to a public supply contract in the Official Journal of the European Communities although this requirement is dispensed with in most circumstances when the negotiated procedure is used. The form of the advertisement and the information which it has to contain in relation to the proposed contract is specified in Schedule 3. If the notice is also to be published in the United Kingdom press it must be limited to the information published in the Official Journal and must not be published before the notice is sent to the Official Journal (regulation 25). The various procedures also lay down the time to be allowed for the response by potential suppliers to the invitations and for obtaining relevant documents. The Regulations also specify the matters to which the contracting authority may have regard in treating suppliers as ineligible or in selecting suppliers to tender for or to negotiate the contract (regulations 11 to 13). The detailed rules for the selection of suppliers are laid down and relate to their business and professional status, their economic and financial standing and their technical capacity. The contracting authority is restricted in the information on which it may rely to demonstrate these matters (regulations 14 to 17).

The contracting authority is required to award a public supply contract on the basis either of the offer (including in-house bids) which offers the lowest price or the one which is the most economically advantageous (regulation 20).

There are various other requirements in the Regulations. The most important is the requirement that where the contracting authority wishes to lay down technical specifications which the goods must meet all such specifications must be specified in the contract documents and that, except in certain circumstances, these specifications must be defined by reference to European specifications. It is also provided that, except where it is not possible to describe the goods otherwise, the technical specifications may not refer to goods of a specific make or source or to a particular process which have the effect of favouring or eliminating certain goods or suppliers (regulation 8). Certain contracting authorities are also required to publicise in the Official Journal at the beginning of their financial year certain public supply contracts which they expect to award during the course of that year (regulation 9). All contracting authorities are required to publicise in the Official Journal information about the public supply contracts they have awarded (regulation 21). There is a requirement that a body granted a special or exclusive right to carry on a service for the benefit of the public should be subject to a duty not to discriminate in awarding a supply contract on the grounds of nationality against nationals of a member State or on the grounds that the goods to be supplied originate in another member State (regulation 22). The contracting authorities are also required to submit various reports in respect of public supply contracts awarded by them, in particular, an annual or biennial report (regulation 23).

Finally, the Regulations provide that the obligation on a contracting authority to comply with the Regulations, and with any enforceable Community obligation in relation to the award of a public supply contract, is a duty owed to suppliers. A breach of the duty is not a criminal offence but is actionable by a supplier. Proceedings are assigned to the High Court in England, Wales and Northern Ireland and to the Court of Session in Scotland. The court is given power to grant appropriate interim and final relief and to award damages except that, where the contract in respect of which there has been an infringement has already been entered into, the court’s powers are restricted to awarding damages (regulation 26).

Footnotes