The Public Supply Contracts Regulations 1995

• (6) In proceedings under this regulation the Court shall not have power to order any remedy other than an award of damages in respect of a breach of the duty owed pursuant to paragraph (1) above if the contract in relation to which the breach occurred has been entered into.

• (7) Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947²⁷, in proceedings brought under this regulation against the Crown the court shall have power to grant an injunction or interdict.

PART VIII — REVOCATION AND AMENDMENT

Revocation of the Public Supply Contracts Regulations

30

These Regulations revoke the Public Supply Contracts Regulations 1991²⁸, regulation 32(2) of the Utilities Supply and Works Contracts Regulations 1992²⁹ and regulation 33 of the Public Services Contracts Regulations 1993³⁰.

Amendments to the Public Works Contracts Regulations and the Public Services Contracts Regulations

31

• (1) The Public Works Contracts Regulations 1991³¹ shall be amended—

• (a) in Regulation 2(1), by inserting the following definition:

• “relevant State” means a member State, Hungary, Poland, Iceland, Norway and, as from the date that the Agreement on the European Economic Area signed at Oporto on 2nd May 1992, as adjusted by the Protocol signed at Brussels on 17th March 1993, is in force in relation to it, Liechtenstein.

• (b) in the following regulations, by substituting “relevant State” for “member State”:

• regulation 2(1)

• regulation 2(2)

• regulation 4

• regulation 6(e)(i)

• regulation 8(6)

• regulation 12(5)

• regulation 13(8)

• regulation 14(1)(f)(i)

• regulation 14(2)

• regulation 14(3)

• regulation 15(1)(b)

• regulation 18

• regulation 31(2)(b) in regulation 14(4), by inserting the following:

• in Austria, the Firmenbuch, Gewerberegister or Mitgliederverzeichnisse der Landeskammern;

• in Finland, the Kaupparekisteri or Handelsregistret;

• in Iceland, the Firmaskrá;

• in Norway, the Foretaksregisteret;

• in Sweden, the Aktiebolagsregistret, Handelsregistret or Fureningsregistret;

• in Greece, the registrar of contractors' enterprises “(Μητρωο ΕργοληπτιΧω ν Επιχειρησεων)” of the Ministry for Environment, Town and Country Planning and Public Works;

and, in relation to Denmark, by substituting “the Handelsregistret, Aktieselskabesregistret or Erhvervsregistret” for “the Erhvervs— and Selskabsstyrelsen”

• (d) in regulation 14(6), by substituting the following new paragraph:

(6) A contractor established in a relevant State, other than the United Kingdom or Ireland, which either has an equivalent professional or trade register which is not listed in paragraph (4) above or which does not have an equivalent professional or trade register shall be treated as registered on a professional or trade register for the purposes of paragraph 1(i) above on production of either a certificate that he is registered on the equivalent professional or trade register or where no such register exists, a declaration on oath, or in a relevant State which does not provide for a declaration on oath a solemn declaration, made by the contractor before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths, that he exercises the particular profession or trade.

• (2) The Public Services Contracts Regulations 1993³² shall be amended—

• (a) in regulation 2(1), by inserting the following definition:

• “relevant State” means a member State, Hungary, Poland, Iceland, Norway and, as from the date that the Agreement on the European Economic Area signed at Oporto on 2nd May 1992, as adjusted by the Protocol signed at Brussels on 17th March 1993, is in force in relation to it, Liechtenstein.

• (b) in the following regulations, by substituting “relevant State” for “member State”:

• regulation 2(1)

• regulation 2(3)

• regulation 4

• regulation 6(j)(i)

• regulation 6(k)

• regulation 8(6)

• regulation 12(5)

• regulation 13(8)

• regulation 14(1)(f),(i),(j)

• regulation 14(2)(a)(ii),(c)

• regulation 14(3)

• regulation 15(1)(b)

• regulation 16(1)(b)(vii),(viii)

• regulation 18

• regulation 20(1) in regulation 14(4), by inserting the following:

• in Austria, the Firmenbuch, Gewerberegister or Mitgliederverzeichnisse der Landeskammern;

• in Finland, the Kaupparekisteri or Handelsregistret;

• in Iceland, the Firmaskrá or Hlutafélagaskrá;

• in Norway, the Foretaksregisteret;

• in Sweden, the Aktiebolagsregistret, Handelsregistret or Föreningsregistret; in regulation 14(6)(b), by substituting the following paragraph: b in any other case, in accordance with paragraph (7) below in regulation 14, by inserting the following new paragraph: 7 A services provider established in a relevant State, other than the United Kingdom or Ireland, which either has an equivalent professional or trade register which is not listed in paragraph (4) above or which does not have an equivalent professional or trade register shall be treated as registered on a professional or trade register for the purposes of paragraph 1(j) above on production of either a certificate that he is registered on the equivalent professional or trade register or where no such register exists, a declaration on oath, or in a relevant State which does not provide for a declaration on oath a solemn declaration, made by the services provider before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths, that he exercises the particular profession or trade. in regulation 23(3), by substituting where it first appears “the Commission” for “the Treasury”.

SCHEDULE 1 — GATT CONTRACTING AUTHORITIES

• Cabinet Office Chessington Computer Centr Civil Service College Civil Service Occupational Health Service Office of Public Services and Science Parliamentary Counsel Office Recruitment and Assessment Services The Government Centre on Information Systems (CCTA)

• Central Office of Information

• Charity Commission

• Crown Estate Commissioners (Vote Expenditure only)

• Crown Prosecution Service

• Customs and Excise Department

• Department for National Savings

• Department for Education Higher Education Funding Council for England

• Department of Employment Employment Appeal Tribunal Industrial Tribunals Office of Manpower Economics

• Department of Health Central Council for Education and Training in Social Work Dental Practice Board English National Board for Nursing, Midwifery and Health Visitors National Health Service Authorities and Trusts Prescription Pricing Authority Public Health Laboratory Service Board UK Central Council for Nursing, Midwifery and Health Visiting

• Department of National Heritage British Library British Museum Historic Buildings and Monuments Commission for England (English Heritage) Imperial War Museum Museums and Galleries Commissions National Gallery National Maritime Museum National Portrait Gallery Natural History Museum Royal Commission on Historical Manuscripts Royal Commission on Historical Monuments of England Royal Fine Art Commission (England) Science Museum Tate Gallery Victoria and Albert Museum Wallace Collection

• Department of Social Security Disability Living Allowance Advisory Board Independent Tribunal Service Medical Boards and Examining Medical Officers (War Pensions) Occupational Pensions Board Regional Medical Service Social Security Advisory Committee

• Department of the Environment Building Research Establishment Agency Commons Commission Countryside Commission Rent Assessment Panels Royal Commission on Environmental Pollution The Buying Agency Valuation Tribunal

• Department of the Procurator General and Treasury Solicitor Legal Secretariat to the Law Officers

• Department of Trade and Industry Central Transport Consultative Committee Domestic Coal Consumers' Council Electricity Committees Gas Consumers' Council Laboratory of the Government Chemist Monopolies and Mergers Commission National Engineering Laboratory National Physical Laboratory National Weights and Measures Laboratory Patent Office

• Department of Transport Coastguard Services Transport Research Laboratory

• Export Credits Guarantee Department

• Foreign and Commonwealth Office Wilton Park Conference Centre

• Government Actuary’s Department

• Government Communications Headquarters

• Home Office Boundary Commission for England Gaming Board for Great Britain Inspectors of Constabulary Parole Board and Local Review Committees

• House of Commons

• House of Lords

• Inland Revenue, Board of

• Intervention Board for Agricultural Produce

• Lord Chancellor’s Department Combined Tax Tribunal Council on Tribunals Immigration Appellate Authorities Immigration Adjudicators Immigration Appeals Tribunal Lands Tribunal Law Commission Legal Aid Fund (England and Wales) Pensions Appeal Tribunals Public Trust Office Office of the Social Security Commissioners Supreme Court Group (England and Wales) Court of Appeal— Criminal Circuit Offices and Crown, County and Combined Courts (England and Wales) Transport Tribunal

• Ministry of Agriculture, Fisheries and Food Agricultural Development and Advisory Service Agricultural Dwelling House Advisory Committees Agricultural Land Tribunals Agricultural Wages Board and Committees Cattle Breeding Centre Plant Variety Rights Office Royal Botanic Gardens, Kew

• Ministry of Defence³³ Meteorological Office Procurement Executive

• National Audit Office

• National Investment and Loans Office

• Northern Ireland Court Service Coroners Courts County Courts Court of Appeal and High Court of Justice in Northern Ireland Crown Court Enforcement of Judgements Office Legal Aid Fund Magistrates Courts Pensions Appeals Tribunals

• Northern Ireland, Department of Agriculture

• Northern Ireland, Department of Economic Development

• Northern Ireland, Department of Education

• Northern Ireland, Department of the Environment

• Northern Ireland, Department of Finance and Personnel

• Northern Ireland, Department of Health and Social Services

• Northern Ireland Office Crown Solicitor’s Office Department of the Director of Public Prosecutions for Northern Ireland Northern Ireland Forensic Science Laboratory Office of Chief Electoral Officer for Northern Ireland Police Authority for Northern Ireland Probation Board for Northern Ireland State Pathologist Service

• Office of Fair Trading

• Office of Population Censuses and Surveys National Health Service Central Register

• Office of the Parliamentary Commissioner for Administration and Health Service Commissioners

• Overseas Development Administration Natural Resources Institute

• Paymaster General’s Office

• Postal Business of the Post Office

• Privy Council Office

• Public Record Office

• Registry of Friendly Societies

• Royal Commission on Historical Manuscripts

• Royal Hospital, Chelsea

• Royal Mint

• Scotland, Crown Office and Procurator Fiscal Service

• Scotland, Registers of Scotland

• Scotland, General Register Office

• Scotland, Lord Advocate’s Department

• Scotland, Queen’s and Lord Treasurer’s Remembrancer

• Scottish Courts Administration Accountant of Court’s Office Court of Justiciary Court of Session Lands Tribunal for Scotland Pensions Appeal Tribunals Scottish Land Court Scottish Law Commission Sheriff Courts Social Security Commissioners' Office

• The Scottish Office Agriculture and Fisheries Department Crofters Commission Red Deer Commission Royal Botanic Garden, Edinburgh

• The Scottish Office Central Services

• The Scottish Office Education Department National Galleries of Scotland National Library of Scotland National Museums of Scotland Scottish Higher Education Funding Council

• The Scottish Office Environment Department Rent Assessment Panel and Committees Royal Commission on the Ancient and Historical Monuments of Scotland Royal Fine Art Commission for Scotland

• The Scottish Office Home and Health Department HM Inspectorate of Constabulary Local Health Councils National Board for Nursing, Midwifery and Health Visiting for Scotland Parole Board for Scotland and Local Review Committees Scottish Council for Postgraduate Medical Education Scottish Crime Squad Scottish Criminal Record Office Scottish Fire Service Training School Scottish National Health Service Authorities and Trusts Scottish Police College

• The Scottish Office Industry Department

• Scottish Record Office

• Her Majesty’s Stationery Office (HMSO)

• HM Treasury

• Welsh Office Royal Commission for Ancient and Historical Monuments in Wales Welsh National Board for Nursing, Midwifery and Health Visiting Local Government Boundary Commission for Wales Valuation Tribunals (Wales) Welsh Higher Education Funding Council Welsh National Health Service Authorities and Trusts Welsh Rent Assessment Panels

SCHEDULE 2 — GOODS FOR THE PURPOSES OF THE THRESHOLDS

The goods for the purpose 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; platering 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 isotapes 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 artifical fur; manufactures 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: telecommunications 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: 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 or 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 — PRIOR INFORMATION NOTICE

1

Name, address, telegraphic address, telephone, 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. CPA reference number.

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) Person 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 a 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

Where applicable, prohibition on variations.

15

Other information.

16

Date of publication of the prior information notice in the Official Journal or references to its non-publication.

17

Date of despatch of the notice.

PART C — RESTRICTED PROCEDURE NOTICE

PART D — NEGOTIATED PROCEDURE NOTICE

PART E — CONTRACT AWARD NOTICE

Signed

Andrew Mitchell — Derek Conway — Two of the Lords Commissioners of Her Majesty’s Treasury — 30th January 1995

Explanatory note

(This note is not part of the Regulations)

These Regulations implement in its entirety Council Directive 93/36/EEC co-ordinating procedures for the award of public supply contracts (OJ No. L199, 9.8.93, p.1). This Directive consolidates the provisions of 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) and amends them to conform more closely with similar measures for public services and works contracts (Council Directives 92/50/EEC (OJ No. L209, 24.7.92, p.1) and 93/37/EEC (OJ L199, 9.8.93, p.54) respectively).

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 relevant State, which is defined to include member States, Hungary, Poland, Iceland, Norway and as from the date the Agreement on the European Economic Area is in force in relation to it, Liechtenstein (regulation 2(1)). Certain contracts are excluded from the application of the Regulations, principally where the contracting authority is exercising activities falling within the provisions of the Utilities Supply and Works Contracts Regulations 1992 (S.I. 1992/3279), 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 open or restricted procedure may be used in all circumstances but 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 27). 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 which it may request to demonstrate these matters (regulations 14 to 17).

Where a contracting authority decides to award a public supply contract, it is required to do so 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 21). If requested by an unsuccessful supplier the contracting authority must provide reasons as to why the supplier was unsuccessful (regulation 23).

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. This includes a British standard which implements a European standard or a European technical approval. 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).

Previously only GATT contracting authorities were 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: however, now all contracting authorities are required to do so (regulation 9). All contracting authorities are required to publicise in the Official Journal information about the public supply contracts they have awarded (regulation 22). 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 relevant State or on the grounds that the goods to be supplied originate in another relevant State (regulation 24). 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 25).

These Regulations also implement, to the extent that it relates to Directive 93/36/EEC, 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 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 29).

Footnotes