« Previous | Contents | Next »
Listen
ANNEX A: DRAFT REGULATIONS 32, 47 AND 48
Information about contract award procedures and standstill period
32. -(1) Subject to paragraph s (6) and ( 1312), a contracting authority shallmust as soon as possible after the decision has been made, inform any economic operator which submitted an offer, applied to be included amongst the economic operators to be selected to tender for or to negotiate the contract, or applied to be party to a framework agreement,all candidates and tenderers of its decision in relation to-
(a) the award of athe contract; or
(b) the conclusion of the framework agreement; or
(c) [the establishment of] the dynamic purchasing system;
and shallmust do so by notice in writing by the most rapid means of communication practicable.
(2) The notice referred to in paragraph (1) shallmust include-
(a) the criteria for the award of the contract; […](a)
(b) where practicable, the score obtained by-
(i) the economic operator which is to receive the notice; and
(ii) the economic operator-
(aa) to be awarded the contract; or
(bb) to become a party to the framework agreement; or
(bb)(cc) to be admitted to the dynamic purchasing system;and
(c) the name of the economic operator-
(i) to be awarded the contract; or
(ii) to become a party to the framework agreement ; or
(iii) to be admitted to the dynamic purchasing system;
(d) a summary of the reasons why the economic operator which is to receive the notice was unsuccessful including, where applicable, the characteristics and relative advantages of the successful tender; and
(d)(e) a precise statement of the effect of paragraph (3) on the economic operator which is to receive the notice.
(3) A contracting authority shallmust allow a period of at least 10 daysthe relevant standstill period to elapse between the date of despatch of the notice referred to in paragraph (1) and the date on which that contracting authority proposes to enter s into the contract or,to conclude s the framework agreement or establishes the dynamic purchasing system.
(4) Subject to paragraph ( 1312), if by midnight at the end of the second working day of the period referred to in paragraph (3), a contracting authority receives a request in writing from an economic operator which was sent a notice under paragraph (1), for the reasons why that economic operator was unsuccessful, the contracting authority shallmust inform that economic operator of those reasons including, where applicable, the characteristics and relative advantages of the successful tender.
(5) A contracting authority shallmust give the information set out in paragraph (4) at least 3 working days before the end of the period referred to in paragraph (3), or where that is not possible, the period referred to in paragraph (3) shallmust be extended to allow at least 3 working days between the provision of the information set out in paragraph (4) and the date the contracting authority proposes to enter into the contract , conclude the framework agreement or establish the dynamic purchasing system.
(6) Paragraphs (1) to (5) do not apply where-
(a) the only tenderer is the economic operator to be awarded the contract, to become a party to the framework agreement, or to be admitted to the dynamic purchasing system, and there are no candidates; or
(b) the contract is a specific contract based on a framework agreement or a contract awarded under a dynamic purchasing system.
(6) Where a contracting authority is using the negotiated procedure in accordance with regulation 14(1)(a)(iv) and there is only one tender for the contract, that contracting authority need not comply with paragraphs (1) to (5).
(7) Where a contracting authority awards a contract under a framework agreement, that contracting authority need not comply with paragraphs (1) to (5).
(7) Without prejudice to paragraph (6), paragraph (3) does not apply where-
(a) the contract, framework agreement or dynamic purchasing system is exempt from [the] requirement for prior publication of a contract notice; or
(b) the only tenderer concerned is the economic operator to be awarded the contract, to become a party to the framework agreement, or to be admitted to the dynamic purchasing system, and there are no candidates concerned.
(8) Where a contracting authority is seeking to establish a dynamic purchasing system in accordance with regulation 20, that contracting authority need not comply with paragraphs (1) to (5) but, subject to paragraph (13), shall as soon as possible after a decision has been made, inform any economic operator which applied to be admitted to a dynamic purchasing system of its decision in relation to admittance to that system and shall do so in writing if requested by the economic operator.
(9)(8) Except for a request made in accordance with paragraph (4), which shallmust be dealt with in accordance with paragraphs (4) and (5) and subject to paragraph ( 1312), a contracting authority shallmust within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful (whether in accordance with regulation 15(11), 16(7), 16(8), 17(9), 17(10), 18(10), 18(11), 20(8) or 30)-
(a) inform that economic operator of the reasons why it was unsuccessful; and
(b) if the economic operator submitted an admissible tender, the contracting authority shallmust inform that economic operator of the characteristics and relative advantages of the successful tender and-
(i) the name of the economic operator to be awarded the contract;
(ii) the names of the parties to the framework agreement; or
(iii) the names of the economic operators admitted to the dynamic purchasing system.
10(9) The reasons referred to in paragraph ( 98)(a) shall include any reason for the contracting authority's decision that the economic operator did not meet the technical specifications-
(a) as specified in regulation 9(6) by an equivalent means; or
(b) in terms of the performance or functional requirements in regulation 9(7) by an equivalent means.
(11)(10) Subject to paragraph ( 1312), a contracting authority shallmust as soon as possible after the decision has been made, inform any economic operator which submitted an offer, which applied to be included amongst the economic operators to be selected to tender for, to negotiate the contract or to be admitted to a dynamic purchasing system,all candidates and tenderers of its decision to abandon or to recommence a contract award procedure in respect of which a contract notice has been published, in relation to-
(a) the award of a contract;
(b) the conclusion of a framework agreement; or
(c) admittance to a dynamic purchasing system.
(12)(11) A contracting authority which informs an economic operator of its decision in accordance with paragraph ( 1110) shallmust-
(a) include the reasons for the decision; and
(b) provide the decision and reasons in writing if requested by the economic operator.
(13)(12) A contracting authority may withhold any information to be provided in accordance with paragraph (1), (4), (8), (9) or ( 1110) where the disclosure of such information-
(a) would impede law enforcement;
(b) would otherwise be contrary to the public interest;
(c) would prejudice the legitimate commercial interests of any economic operator; or
(d) might prejudice fair competition between economic operators.
(14)(13) A contracting authority shallmust prepare a record in relation to each public contract awarded by it, framework agreement concluded by it or dynamic purchasing system established by it, specifying-
(a) the name and address of the contracting authority;
(b) the value of the consideration to be given under the contract, framework agreement or dynamic purchasing system and-
(i) the type of goods to be purchased or hired;
(ii) the work or works to be carried out; or
(iii) the services to be provided;
(c) where offers were evaluated in accordance with regulation 30, the names of the economic operators which submitted those offers and where the contracting authority has used the restricted procedure or negotiated procedure, the reasons why those economic operators were selected;
(d) the name of any economic operator-
(i) to which the contract was awarded;
(ii) with which the framework agreement was concluded; or
(iii) which was admitted to the dynamic purchasing system;
and the reasons for having-
(aa) awarded the contract to, or concluded the framework agreement with, that economic operator; or
(bb) admitted that economic operator to the dynamic purchasing system;
(e) the names of the economic operators which were unsuccessful in the circumstances referred to in regulation 15(11), 16(7), 16(8), 17(9), 17(10), 18(10), 18(11), 20(8) or 30 and the reasons why they were unsuccessful;
(f) if known to the contracting authority, the parts of the contract or framework agreement that the economic operator to which the contract has been awarded or with which the framework agreement has been concluded, intends to sub-contract to another economic operator;
(g) in the case of a contracting authority which used the negotiated procedure, which of the circumstances specified in regulation 13 or 14 constituted grounds for using that procedure;
(h) in the case of a contracting authority which used the competitive dialogue procedure, details of the circumstances which constituted grounds for using that procedure in accordance with regulation 18(2); and
(i) where a contracting authority has abandoned a contract award procedure, the conclusion of a framework agreement or the establishment of a dynamic purchasing system, the reasons why the contracting authority has decided not to award the contract, to conclude the framework agreement or to establish the dynamic purchasing system as the case may be.
(15)(14) A contracting authority shallmust keep appropriate information to document the progress of contract award procedures conducted by electronic means.
(16)(15) If the Commission requests a report containing the information specified in paragraph ( 1413), the contracting authority shallmust send a written report containing that information, or the main features of it, to the Scottish Ministers for onward transmission to the Commission.
(16) In this regulation-
(a) "candidate" means an economic operator (other than a tenderer) which-
(i) applied to be included amongst the economic operators to be selected to tender for or to negotiate a contract, or applied to be included amongst the economic operators to be selected to participate in a dialogue in relation to a contract; or
(ii) applied to be included amongst the economic operators to be selected to tender or negotiate to be party to a framework agreement, or applied to be included amongst the economic operators to be selected to participate in a dialogue in relation to a framework agreement;
(b) "candidate concerned" means a candidate which has not been [given] notification that they have been excluded from the competition;
(c) "relevant standstill period" means-
(i) where the notice referred to in paragraph (1) is sent [only] by facsimile or by electronic means, 10 days from the date on which the notice is sent to the economic operators; or
(ii) where the notice referred to in that paragraph is sent by post, or by a combination of facsimile or electronic means and post, 15 days from the date on which the notice is sent to the economic operators;
(d) "tenderer" means an economic operator which submitted [an offer] [to perform a contract or to be party to a framework agreement, or an indicative tender to be admitted to a dynamic purchasing system]; and
(e) "tenderer concerned" means a tenderer which-
(i) has not been [sent written] notification that they have been excluded from the competition; or
(ii) has been [sent written] notification that they have been excluded from the competition and that exclusion-
(aa) has been [found] lawful in proceedings under Part 9; or
(bb) cannot be the subject of proceedings under Part 9 by virtue of regulation 47(7)(b).
PART 9
APPLICATIONS TO THE COURT
Enforcement of obligations
47. -(1) The obligation on-
(a) a contracting authority to comply with the provisions of these Regulations, other than regulations 14(2), 30(9), 32(14), 40 and 41(1), and with any enforceable Community obligation in respect of a public contract or design contest (other than one excluded from the application of these Regulations by regulation 6, 8 or 33); and
(b) a concessionaire to comply with the provisions of regulation 37(3);
is a duty owed to an economic operator.
(2) The duty owed to an economic operator in accordance with paragraph (1), except in relation to-
(a) a Part B services contract;
(b) a contract for research and development services specified in category 8 of Part A of Schedule 3;
(c) regulation 34;
(d) regulation 36;
(e) regulation 37(1); or
(f) regulation 37(2);
is a duty owed also to a GPA economic operator.
(3) The duty owed to a GPA economic operator referred to in paragraph (2) shallis only be owed by the Secretary of State for Defence in relation to public supply contracts for the purchase or hire of goods specified in Schedule 5.
(4) References to an "economic operator" in paragraphs (6), (7) and ( 89) -(11)shall beare construed as including a reference to a GPA economic operator.
(5) In this regulationPart and notwithstanding regulation 4, references to an "economic operator" include, where the duty owed in accordance with paragraph (1) is the obligation on a concessionaire to comply with regulation 37(3), any person-
(a) who sought, who seeks or would have wished, to be the person to whom a contract to which regulation 37(3) applies is awarded; and
(b) who is a national of a relevant State and established in a relevant State.
(6) A breach of the duty owed in accordance with paragraph (1) or (2) shall beis actionable by any economic operator which, in consequence [of the breach], suffers, or risks suffering, loss or damage and thosesuch proceedings shallmust be brought in the Sheriff Court ,or the Court of Session , or in England and Wales and Northern Ireland, the High Court.
(7) Proceedings under this regulationPartmaymust not be brought unless-
(a) the economic operator bringing the proceedings has informed the contracting authority or concessionaire, as the case may be, of the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2) by that contracting authority or concessionaire and of its intention to bring proceedings under this regulation in respect of it; and
(b) the proceedings are brought in accordance with paragraph (8).
(8) For the purpose of paragraph (7)(b), proceedings must be brought-
(a) in the case of proceedings other than proceedings [seeking] an order for ineffectiveness (as defined in regulation 48(2)),those proceedings are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought ; and
(b) in the case of proceedings [seeking] an order for ineffectiveness (as defined in regulation 48(2))-
(i) where paragraph (10) applies, within 30 days from the relevant date referred to in that paragraph; or
(i)(ii) in any other case, within 6 months from the date of the contract being entered into.
(9) Where proceedings under this regulation relate to a decision of a contracting authority, the requirement in paragraph (8)(a) for proceedings to be brought promptly never requires proceedings to be brought before the end of any of the following periods-
(a) where the decision is sent [only] by facsimile or by electronic means, 10 days from the date on which the decision is sent to the economic operator;
(b) where the decision is sent by post, or by a combination of facsimile or electronic means and post, 15 days from the date on which the decision is sent to the economic operator; or
(c) where the decision is not sent to the economic operator, 10 days from the date on which the decision is published.
(10) This paragraph applies where-
(a) the contracting authority has sent a contract award notice to the Official Journal in accordance with regulation 31 (contract award notice), including justification of its decision to enter into the contract without prior publication of a contract notice in the Official Journal, in which case the relevant date is the date of publication of that notice; or
(b) the contracting authority has by notice in writing informed the tenderers concerned and any candidates concerned of its decision in relation to the award of the contract, and has given those economic operators a summary of the reasons why they were unsuccessful including, where applicable, the characteristics and relative advantages of the successful tender, in which case the relevant date is the date of despatch of the notice.
(8)(11) Subject to paragraphparagraphs (13) and ( 916), but otherwise without prejudice to any other powers of the Court, in proceedings brought under this regulation the Court may-
(a) by interim order suspend the procedure leading to the award of the contract or the procedure leading to the determination of a design contest in relation to the award of the contract of which the breach of the duty owed in accordance with paragraph (1) or (2) is alleged, or suspend the implementation of any decision or action taken by the contracting authority or concessionaire, as the case may be, in the course of following such a procedure; and
(b) if satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with paragraph (1) or (2)-
(i) order the setting aside of that decision or action or order the contracting authority to amend any document;
(ii) award damages to an economic operator which has suffered loss or damage as a consequence of the breach; or
(iii) do both of those things.
(12) In any interim proceedings under this regulation the Court may decide not to grant an interim order when negative consequences of such an order could exceed the benefits, having regard to the following-
(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.
(13) Where the Court is satisfied that regulation 48(6)(a) applies but [that] sub-paragraphs (b)-(d) of that regulation do not apply, 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.
(14) In determining what order to make under paragraph (13) the Court must-
(a) ensure that the penalty imposed is effective, proportionate and dissuasive; and
(b) have regard to all relevant factors including-
(i) the seriousness of the breach;
(ii) the behaviour of the contracting authority; and
(iii) the extent to which the contract remains in effect;
but no regard is to be had to the effect of any damages the Court may wish to award under paragraph (11)(b)(ii).
(9)(15) Subject to regulation 48,Iin proceedings under this regulation the Court shalldoes not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) or (2) if the contract in relation to which the breach occurred has been entered into.
(10)(16) Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947( a), in proceedings brought under this regulation against the Crown the Court shall havehas power to grant an interim orderinterdict or order for specific implement.
(17) When a contracting authority receives formal intimation that proceedings have been brought against it under this regulation relating to a contract that has not been entered into, the contract award procedure is suspended such that the contracting authority must not enter into the contract unless-
(a) the proceedings are determined, discontinued or disposed of; or
(b) the Court, by interim order, brings to an end the suspension;
providing that in such cases the suspension must continue until any relevant standstill period applying by virtue of regulation 32(3) has expired.
(11)(18) In this regulationPart-
"candidate concerned" has the same meaning it has in regulation 32(16);
"contract", unless the context otherwise requires, includes a public contract, a framework agreement and a dynamic purchasing system;
"GPA economic operator" means a person from a GPA State who sought, who seeks, or would have wished, to be the person to whom the contract is awarded;
"GPA State" means any country other than a relevant State which, at the relevant time is a signatory to the GPA and has agreed with the European Community that the GPA shall applyapplies to a contract of the type to be awarded( b); and
"relevant time" means , except in regulation 48(7), the date on which the contracting authority would have sent a contract notice in respect of the contract to the Official Journal if it had been required by these Regulations to do so ; and
"tenderer concerned" has the same meaning is has in regulation 32(16).
(19) Any financial penalty imposed under this Part must be paid into the Scottish Consolidated Fund.
Ineffectiveness
48. -(1) [This regulation applies where proceedings are brought seeking an [order for] ineffectiveness in relation to a contract that has been entered into.]
(2) An order for ineffectiveness is an order that, without prejudice to all contractual rights and obligations in respect of the period leading up to the date of the order, [avoids] all contractual rights and obligations in respect of the period commencing on the date of the order.
(3) Subject to paragraph (11), the Court must make an order for ineffectiveness where one of the grounds for ineffectiveness set out in paragraphs (4), (6) and (7) [applies].
(4) The first ground for ineffectiveness is that the contracting authority has entered into a contract without sending a contract notice to the Official Journal in circumstances where the contract was not exempt from [the] requirement for prior publication of a contract notice.
(5) The first ground for ineffectiveness does not apply where-
(a) the contracting authority sent to the Official Journal a notice in the form of the [voluntary notice of intention to award in Commission Regulation (EC) No. xxxx/2009], expressing its intention to enter into the contract and containing-
(i) the name and contact details of the contracting authority;
(ii) a description of the object of the contract;
(iii) a justification of the decision of the contracting authority to award the contract without prior publication of a contract notice in the Official Journal;
(iv) the name and contact details of the economic operator to be awarded the contract; and
(v) any other information which the contracting authority considered useful; and
(b) the contracting authority allowed a period of at least 10 days to elapse between the date of the publication of the notice referred to in sub-paragraph (a) and the date on which the contracting authority entered into the contract.
(6) The second ground for ineffectiveness is that-
(a) the contracting authority has entered into a contract in breach of a duty imposed by regulation 32(3) or 47(17);
(b) in the case of a breach of the duty imposed by regulation 32(3), the contracting authority's breach prevented the economic operator from bringing proceedings before the contract was entered into;
(c) there has been another breach of a duty imposed by these Regulations, other than a duty imposed by regulation 32 or this Part; and
(d) the breach referred to in sub-paragraph (c) has affected the chances of the economic operator bringing proceedings under this Part to obtain the contract.
(7) The third ground for ineffectiveness is that-
(a) the contract is a specific contract based on a framework agreement or a contract awarded under a dynamic purchasing system;
(b) the contract was awarded in breach of a duty imposed by regulation 19(7)(b), 19(8) or 19(9), in the case of a specific contract based on a framework agreement, or regulation 20(11), 20(12), 20(13) or 20(14), in the case of a contract awarded under a dynamic purchasing system; and
(c) the estimated value of the contract (net of value added tax) [at the relevant time] [is] or [is] greater than the relevant threshold.
(8) The third ground for ineffectiveness does not apply where-
(a) the contracting authority has by notice in writing informed the tenderers concerned of its decision in relation to the award of the contract, and has given those economic operators a summary of the reasons why they were unsuccessful including, where applicable, the characteristics and relative advantages of the successful tender; and
(b) the contracting authority allowed a period of at least the relevant standstill period referred to in regulation 32(16) to elapse between the date of despatch of the notice referred to in sub-paragraph (a) and the date on which the contracting authority entered into the contract.
(9) If an order for ineffectiveness is made, the Court must, without prejudice to the other powers of the Court-
(a) impose a financial penalty on the contracting authority; and
(b) make such other order as the Court considers appropriate to address the rights and obligations of the parties to the contract in respect of the period commencing on the date of the order for ineffectiveness.
(10) Before making an order under paragraph (9)(b), the Court must have regard to any terms agreed between the parties to the contract, whether in the contract or otherwise, relating to the rights and obligations of the parties should the contract be [avoided].
(11) The Court may decline to make an order for ineffectiveness where the Court is satisfied that overriding reasons relating to a general interest require that contractual rights and obligations under the contract should be maintained.
(12) For the purposes of paragraph (11) -
(a) economic interests in the effectiveness of the contract may only be considered as overriding reasons relating to a general interest [in exceptional circumstances] where ineffectiveness would lead to disproportionate consequences; and
(b) economic interests directly linked to the contract do not constitute overriding reasons relating to a general interest.
(13) For the purposes of paragraph (12)(b), economic interests directly linked to the contract include the costs-
(a) resulting from the delay in the [performance] of the contract;
(b) resulting from the commencement of a new procurement procedure;
(c) resulting from the change of the economic operator performing the contract; and
(d) of legal obligations resulting from the ineffectiveness.
(14) Where the Court declines to make an order for ineffectiveness under paragraph (11), [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.
(15) In determining what order to make under paragraph (14), regulation 47(14) applies.
(12)(16) In paragraph (7), "estimated value", "relevant time" and "relevant threshold" have the same meanings they have in regulation 8.
« Previous | Contents | Next »