The Public Contracts (Amendment) Regulations 2009
| Year | 2009 |
2009No. 2992
PUBLIC PROCUREMENT, ENGLAND AND WALES
PUBLIC PROCUREMENT, NORTHERN IRELAND
The Public Contracts (Amendment) Regulations 2009
11thNovember2009
12thNovember2009
20thDecember2009
As amended by correction slip published in November 2009
The Treasury are designated 1 for the purposes of section 2(2) of the European Communities Act 1972 2 in relation to public procurement.
The Treasury makes these Regulations in exercise of the powers conferred by section 2(2) of, as read with paragraph 1A 3 of Schedule 2 to, that Act.
These Regulations make provision for a purpose mentioned in section 2(2) of that Act, and it appears to the Treasury that it is expedient for certain references to provisions of Community instruments to be construed as references to those provisions as amended from time to time.
Citation, commencement and interpretation
1.-
(1) These Regulations may be cited as the Public Contracts (Amendment) Regulations 2009 and come into force on 20th December 2009.
(2) In these Regulations, "the principal Regulations" means the Public Contracts Regulations 2006 4.
Amendment of the principal Regulations
2.The principal Regulations are amended as follows.
3.In the Arrangement of Regulations-
(a) after the entry relating to regulation 29, insert- 29A. Notification.
(b) after the entry relating to regulation 32, insert- 32A. Standstill period.
(c) for the entry relating to regulation 47 substitute- 47. Interpretation of Part 9
47A. Duty owed to economic operators
47B. Duty owed to GPA economic operators
47C. Enforcement of duties through the Court
47D. General time limits for starting proceedings
47E. Special time limits for seeking a declaration of ineffectiveness
47F. Starting proceedings
47G. Contract-making suspended by challenge to award decision
47H. Interim orders
47I. Remedies where the contract has not been entered into
47J. Remedies where the contract has been entered into
47K. Grounds for ineffectiveness
47L. General interest grounds for not making a declaration of ineffectiveness
47M. The consequences of ineffectiveness
47N. Penalties in addition to, or instead of, ineffectiveness
47O. Ineffectiveness etc. in relation to specific contracts based on a framework agreement
47P. Injunctions against the Crown
4.In regulation 2-
(a) in paragraph (1), in the definition of "working day", after "Sunday" insert ", Christmas Day, Good Friday"; and(b) in paragraph (4)-(i) at the beginning, for "Where" substitute "Except in Part 9, where"; and(ii) in sub-paragraph (c), omit "except for regulation 32(3),".5.In regulation 20(9), at the end insert "and shall do so in writing if requested by the economic operator".
6.After regulation 29, insert-
Notification
29A.-
(1) Where a contracting authority decides, prior to the stage at which it makes a decision to which regulation 32(1) (award decision) applies, to exclude an applicant, the contracting authority shall notify the applicant of that exclusion.
(2) In this regulation, "applicant" means an 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 a party to the framework agreement.
(3) For the purposes of this regulation, an applicant is excluded if, and only if-
(a) the applicant, or the applicant's tender, is excluded as mentioned in regulation 15(11), 16(7), 17(9) or 18(10); or(b) the applicant is not among those selected to be-(i) invited to tender as mentioned in regulation 16(8);(ii) invited to negotiate, as mentioned in regulation 17(10) or (23), or for the purposes of regulation 17(22); or(iii) invited to participate, as mentioned in regulation 18(11) or (23), or for the purposes of regulation 18(22)..7.In regulation 31(1) after "1564/2005" insert "as amended from time to time".
8.In regulation 32-
(a) For paragraphs (1) and (2) substitute-Award decision notice
(1) Subject to paragraph (13), a contracting authority shall, as soon as possible after the decision has been made, inform the tenderers and candidates of its decision to-
(a) award the contract; or(b) conclude the framework agreement,and shall do so by notice in writing by the most rapid means of communication practicable.
(2) Where it is to be sent to a tenderer, the notice referred to in paragraph (1) shall include-
(a) the criteria for the award of the contract;(b) the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) 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,and anything required by paragraph (10);
(c) the name of the economic operator-(i) to be awarded the contract; or(ii) to become a party to the framework agreement; and(d) a precise statement of either-(i) when, in accordance with regulation 32A, the standstill period is expected to end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or(ii) the date before which the contracting authority will not, in conformity with regulation 32A, enter into the contract or conclude the framework agreement.(2A) Where it is to be sent to a candidate, the notice referred to in paragraph (1) shall include-
(a) the reasons why the candidate was unsuccessful; and(b) the information mentioned in paragraph (2), but as if the words "and relative advantages" were omitted from sub-paragraph (b).;(b) omit paragraphs (3) to (6);(c) immediately before paragraph (7), insert-(6A) Where the contract or framework agreement is permitted by these Regulations to be awarded or concluded without prior publication of a contract notice, the contracting authority need not comply with paragraph (1).
(6B) Where the only tenderer is the one who is to be awarded the contract or who is to become a party to the framework agreement, and there are no candidates, the contracting authority need not comply with paragraph (1)..
(d) in paragraph (7), after "agreement", insert "or a dynamic purchasing system";(e) omit paragraph (8);(f) immediately before paragraph (9), insert the following heading-Reasons to be given on request to unsuccessful economic operators;
(g) in paragraph (9), for the text from the beginning of the paragraph to "20(8)" substitute "Except to the extent that the contracting authority has already informed the economic operator (whether by notice under paragraph (1) or otherwise), and subject to paragraph (13), a contracting authority shall 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), 17(22), 17(23), 18(10), 18(11), 18(22), 18(23), 19(9), 20(8), 20(14)";(h) in paragraph (10), for "paragraph (9)(a) substitute "paragraphs (2)(b) and (9)(a)";(i) immediately before paragraph (11) insert the following heading-Abandonment or recommencement of procedure;.
(j) in paragraph (11), for the words from "economic operators which" to "admitted to a dynamic purchasing system," substitute "candidates and tenderers";(k) immediately before paragraph (13), insert the following heading-Grounds for withholding information;.
(l) in paragraph (13), omit "(4), (8),";(m) immediately before paragraph (14), insert the following heading-Records and reports;and
and
(n) after paragraph (16), insert-Definitions
(17) For the purposes of this regulation-
(a) "candidate" means an economic operator (other than a tenderer) which applied-(i) to be included amongst the economic operators to be selected to tender or to negotiate the contract; or(ii) to be a party to the framework agreement,but does not include any economic operator which has been informed of the rejection of its application, and the reasons for it; and
(b) "tenderer" means an economic operator which submitted an offer..9.After regulation 32, insert-
Standstill period
32A.-
(1) Where regulation 32(1) applies, the contracting authority must not enter into the contract or conclude the framework agreement before the end of the standstill period.
(2) Subject to paragraph (6), where the contracting authority sends a regulation 32(1) notice to all the relevant economic operators by facsimile or electronic means, the standstill period ends at midnight at the end of the 10th day after the relevant sending date.
(3) Subject to paragraph (6), where the contracting authority sends a regulation 32(1) notice to all the relevant economic operators only by other means, the standstill period ends at whichever of the following occurs first-
(a) midnight at the end of the 15th day after the relevant sending date;(b) midnight at the end of 10th day after the date on which the last of the economic operators to receive such a notice receives it.(4) In paragraphs (2) and (3), "the relevant sending date" means the date on which the regulation 32(1) notices are sent to the relevant economic operators, and if the notices are sent to different relevant economic operators on different dates, the relevant sending date is the date on which the last of the notices is sent.
(5) Subject to paragraph (6), where the contracting authority sends a regulation 32(1) notice to one or more of the relevant economic operators by facsimile or electronic means and to the others by other means, the standstill period ends at whichever of the following two times occurs latest-
(a) midnight at the end of the 10th day after the date on which the last notice is sent by facsimile or electronic means;(b) the time when whichever of the following occurs first-(i) midnight at the end of the 15th day after the date on which the last notice is sent by other means;(ii) midnight at the end of the 10th day after the date on which the last of the economic operators to receive a notice sent by any such other means receives it.(6) Where the last...
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