Regulation 4 Amendment of the Public Services Regulations

Regulation 2 of the Public Services Regulations (interpretation) shall be amended—

Regulation 3 of the Public Services Regulations (contracting authorities) shall be replaced by—

“ Contracting authorities

3

(1)

For the purposes of these Regulations each of the following is a “contracting authority"—

(a)

a Minister of the Crown,

(b)

a government department,

(c)

the House of Commons,

(d)

the House of Lords,

(e)

the Northern Ireland Assembly Commission,

(f)

the Scottish Parliamentary Body Corporate,

(g)

the National Assembly for Wales,

(h)

a local authority,

(i)

a fire authority constituted by a combination scheme under the Fire Services Act 1947 M2,

(j)

the Fire Authority for Northern Ireland,

(k)

a police authority established under section 3 of the Police Act 1996 M3,

(l)

a police authority established under section 2 of the Police (Scotland) Act 1967 M4,

(m)

the Police Authority for Northern Ireland,

n M5)an authority established under section 10 of the Local Government Act 1985

,

(o)

a joint authority established by Part IV of that Act,

(p)

any body established pursuant to an order under section 67 of that Act,

(q)

the Broads Authority,

(r)

any joint board the constituent members of which consist of any of the bodies specified in paragraphs (h), (i), (k), (l), (n), (o), (p) and (q), above,

(s)

a National Park authority established by an Order under section 63 of the Environment Act 1995 M6,

(t)

the Receiver for the Metropolitan Police District M7,

(u)

a corporation established, or a group of individuals appointed to act together, for the specific purposes of meeting needs in the general interest, not having an industrial or commercial character, and—

(i)

financed wholly or mainly by another contracting authority, or

(ii)

subject to management supervision by another contracting authority, or

(iii)

more than half of the board of directors or members of which, or, in the case of a group of individuals, more than half of those individuals, being appointed by another contracting authority,

(v)

an association of or formed by one or more of the above, and

(w)

to the extent not specified in sub-paragraphs (a) to (t) above, an entity specified in Schedule 3.

(2)

In the application of these Regulations to England, “local authority" in paragraph (1) above means—

(a)

a county council, a district council, a London borough council, a parish council, a community council or the Council of the Isles of Scilly;

(b)

the Common Council of the City of London in its capacity as local authority or police authority.

(3)

In the application of these Regulations to Wales, “local authority" in paragraph (1) above means a county council, county borough council or community council.

(4)

In the application of these Regulations to Scotland, “local authority" in paragraph (1) above has the same meaning as in section 235(1) of the Local Government (Scotland) Act 1973 M8 and also includes joint board or joint committee within the meaning of section 235(1).

(5)

In the application of these Regulations to Northern Ireland, “local authority" in paragraph (1) above means a district council within the meaning of the Local Government Act (Northern Ireland) 1972 M9.

(6)

Where an entity specified in paragraph (1) above does not have the capacity to enter into a contract, the contracting authority in relation to that entity is a person whose function it is to enter into contracts for that entity.”.

Regulation 4(1)(b) of the Public Services Regulations (service providers) shall be replaced by—

“(b)

who is a national of and established in a relevant State.”.

Regulation 7(1) of the Public Services Regulations (thresholds) shall be replaced by—

“(1)

These Regulations shall not apply to the seeking of offers in relation to a proposed public services contract where the estimated value of the contract (net of value added tax) at the relevant time is less than the relevant threshold, which, in relation to a Part A services contract, other than

(a)

a subsidised services contract under regulation 25,

(b)

a contract for research and development services specified in category 8 of Schedule 1, or

(c)

a contract for telecommunication services specified under CPC M10 references 7524, 7525 and 7526 within category 5 of Schedule 1, Part A,

shall be—

(i)

in the case of offers sought by Schedule 3 entities the euro equivalent of 130,000 special drawing rights; and

(ii)

in the case of offers sought by any other contracting authority the euro equivalent of 200,000 special drawing rights;

and in relation to any other public services contract shall be 200,000 euro.”.

In regulation 7 of the Public Services Regulations (thresholds) the following paragraph shall be inserted—

“(1A)

The value in pounds sterling of any amount expressed in these Regulations in euro or in the euro equivalent of special drawing rights shall be calculated by reference to the rate for the time being applying for the purposes of Council Directive 92/50/EEC M11 as published from time to time in the Official Journal M12.”.

Regulation 11(4) of the Public Services Regulations (the open procedure) shall be replaced by—

“(4)

Where—

(a)

the contracting authority has published a prior information notice in accordance with regulation 9 above;

(b)

the prior information notice contained as much of the information referred to in Part B of Schedule 2 as was available at the time of publication; and

(c)

the prior information notice was sent to the Official Journal at least 52 days and no more than 12 months before the date on which the contract notice provided for in regulation 11(2) is despatched—

the contracting authority may substitute for the period of not less than 52 days specified in paragraph (3) above, a shorter period of generally no less than 36 days and in any event no less than 22 days, provided in each case that the period is sufficient to allow for effective tendering.”.

The following paragraphs shall be added to regulation 11 of the Public Services Regulations (the open procedure)—

“(9)

Tenders shall be submitted in writing either in person or by post, except that a contracting authority may authorise another means of submission provided that the chosen means enables—

(a)

each tender to contain all the information necessary for its evaluation;

(b)

the confidentiality of tenders to be maintained pending their evaluation; and

(c)

tenders to be opened only after the time limit for their submission has expired.

(10)

Where a contracting authority has authorised another means of submission in accordance with paragraph (9) above, it may require either that the submission of the tender is confirmed in writing or that a copy of the tender is delivered to it in person or by post, in either case as soon as possible after the submission of the tender by another means.”.

Regulation 12(12) of the Public Services Regulations (the restricted procedure) shall be replaced by—

“(12)

Subject to paragraph (15) below, where—

(a)

the contracting authority has published a prior information notice in accordance with regulation 9 above;

(b)

the prior information notice contained as much of the information referred to in Part C (or, if appropriate, Part D) of Schedule 2 as was available at the time of publication; and

(c)

the prior information notice was sent to the Official Journal at least 52 days and no more than 12 months before the date on which the contract notice provided for in regulation 12(2) is despatched;

the contracting authority may substitute for the period of not less than 40 days in paragraph (11) above, a period of not less than 26 days.”.

The following paragraphs shall be added to regulation 12 of the Public Services Regulations (the restricted procedure)—

“(17)

Tenders shall be submitted in writing either in person or by post, except that a contracting authority may authorise another means of submission provided that the chosen means enables—

(a)

each tender to contain all the information necessary for its evaluation;

(b)

the confidentiality of tenders to be maintained pending their evaluation; and

(c)

tenders to be opened only after the time limit for their submission has expired.

(18)

Where a contracting authority has authorised another means of submission in accordance with paragraph (17) above, it may require either that the submission of the tender is confirmed in writing or that a copy of the tender is delivered to it in person or by post, in either case as soon as possible after the submission of the tender by another means.”.

Regulation 23 of the Public Services Regulations (information about contract award procedures) shall be replaced by—

“ Information about contract award procedures

23

(1)

Where a contracting authority decides either to abandon or to recommence an award procedure in respect of which a contract notice has been published it shall inform the Office for Official Publications of the European Communities M13 and shall inform promptly any service provider who submitted an offer or who applied to be included amongst the persons to be selected to tender for or to negotiate the contract of the reasons for its decision and shall do so in writing if so requested.

(2)

Subject to paragraph (3) below, a contracting authority shall, within 15 days of the date on which it receives a request in writing from any service provider who was unsuccessful (whether pursuant to regulation 11(8), 12(4), 12(5), 13(7), 13(8) or 21), inform that service provider of the reasons why he was unsuccessful and, if the service provider submitted an admissible tender, the contracting authority shall inform him of the characteristics and relative advantages of the successful tender as well as the name of the person awarded the contract.

(3)

A contracting authority may withhold any information to be provided in accordance with paragraph (2) above where the disclosure of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any person or might prejudice fair competition between service providers.

(4)

A contracting authority shall prepare a record in relation to each public services contract awarded by it specifying—

(a)

the name and address of the contracting authority;

(b)

the services to be provided under the contract and the value of the consideration to be given under it;

(c)

the names of the persons whose offers were evaluated in accordance with regulation 21 and, where the contracting authority has used the restricted or negotiated procedure, the reasons why those persons were selected;

(d)

the names of the persons who were unsuccessful pursuant to regulation 11(8), 12(4), 12(5), 13(7) or 13(8) and the reasons why they were unsuccessful;

(e)

the name of the person to whom the contract was awarded and the reasons for having awarded the contract to him;

(f)

if known to the contracting authority, the services under the contract which the person to whom the contract has been awarded intends to sub-contract to another person; and

(g)

in the case of a contracting authority which used the negotiated procedure, which of the circumstances specified in regulation 10(2) constituted grounds for using that procedure.

(5)

If the Commission requests a report containing the information specified in paragraph (4) above, the contracting authority shall send a written report containing that information, or the main features of it, to the Treasury for onward transmission to the Commission.”.

Regulation 24(1) (design contests) shall be replaced by—

“(1)

This regulation shall apply to a design contest if it is organised as part of a procedure intended to lead to the award of a public services contract whose estimated value (net of value added tax) is not less than the relevant threshold, which, in relation to a Part A services contract other than—

(a)

a contract for research and development specified in category 8 of Schedule 1, Part A; or

(b)

a contract for telecommunications services specified under CPC M14 references 7524, 7525 and 7526 within category 5 of Schedule 1, Part A,

shall be—

(i)

in the case of offers sought by Schedule 3 entities the euro equivalent of 130,000 special drawing rights;

(ii)

in the case of offers sought by any other contracting authority the euro equivalent of 200,000 special drawing rights;

and in relation to any other public services contract shall be 200,000 euro.

(1A)

This regulation shall apply to a design contest whether or not it is organised as part of a procedure leading to the award of a public services contract, if the aggregate value of the prizes or payments for the contest is not less than 200,000 euro.”.

Regulation 27 of the Public Services Regulations (statistical and other reports) shall be replaced by—

“ Statistical and other reports

27

(1)

A contracting authority shall, no later than 31st July in each year, send to the Treasury a report specifying, in relation to each public services contract awarded by it during the reporting period—

(a)

the value (estimated if necessary) of the consideration payable under the contract;

(b)

whether the open, restricted or negotiated procedure was used;

(c)

if the negotiated procedure was used, pursuant to which provision of regulation 10(2) that procedure was used;

(d)

the principal category of service carried out or to be carried out under the contract according to the nomenclature used in Schedule 1; and

(e)

the nationality of the person to whom the contract was awarded.

(2)

A Schedule 3 entity shall include in the report referred to in paragraph (1) above the aggregate value (estimated if necessary) of all public services contracts awarded by it during the reporting period which were below the relevant threshold specified in regulation 7.

(3)

A contracting authority shall send to the Treasury a report containing such other information as the Treasury may from time to time require in respect of a particular public services contract (including public services contracts excluded from the application of these Regulations by regulations 6 and 7) for the purposes of informing the Commission.

(4)

In this regulation “the reporting period" means the year preceding the year in which the report referred to in paragraph (1) above is to be made.”.

Regulation 32 of the Public Services Regulations (enforcement of obligations relating to a public services contract) shall be amended—

Schedule 3 to these Regulations (which substitutes a new Schedule 2 to the Public Services Regulations) shall have effect.

Schedules 4 and 5 to these Regulations (which add Schedules 3 and 4 to the Public Services Regulations ) shall have effect.