The Defence and Security Public Contracts Regulations 2011
| Year | 2011 |
2011 No. 1848
Public Procurement
The Defence and Security Public Contracts Regulations 2011
Made 28th July 2011
Laid before Parliament 29th July 2011
Coming into force 21th August 2011
The Secretary of State is designated1for the purposes of section 2(2) of the European Communities Act 19722in relation to public procurement.
The Secretary of State makes these Regulations in exercise of the powers conferred by section 2(2) of, as read with paragraph 1A3of 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 Secretary of State that it is expedient for certain references to provisions of EU instruments to be construed as references to those provisions as amended from time to time.
PART 1
GENERAL
Citation and commencement
1. These Regulations may be cited as the Defence and Security Public Contracts Regulations 2011 and come into force on 21st August 2011.
Review
2.—(1) The Secretary of State must carry out a review of the provisions of these Regulations before the end of each review period and set out the conclusions of the review in a report.
(2) In carrying out the review the Secretary of State will, so far as is reasonable, compare the implementation of European obligations in the Defence and Security Procurement Directive with the implementations of those obligations in other member States.
(3) The report must in particular—
(a)
(a) set out the objectives intended to be achieved by the regulatory system established by those provisions;
(b)
(b) assess the extent to which those objectives have been achieved;
(c)
(c) include the assessment of the comparison between implementations; and
(d)
(d) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
(4) The Secretary of State must lay the report before Parliament before the end of the review period.
(5) The first review period is the period of five years beginning with the day on which these Regulations came into force.
(6) Each subsequent review period is a period of five years beginning with the date on which the report of the review carried out during the preceding review period was laid before Parliament.
Interpretation
3.—(1) In these Regulations—
“aircraft” means any machine capable of flight (whether or not propelled by mechanical means);
“applied research” means original work undertaken with a view to acquiring new knowledge and directed primarily towards a particular end or objective;
“to award” means to accept an offer made in relation to a proposed contract;
“buyer profile” means a page on the internet set up by a contracting authority containing one or more of the following: prior information notices, information on ongoing invitations to tender, prospective and concluded contracts, cancelled procedures and useful general information, such as a contact point, a telephone number, a facsimile number, a postal address or an e-mail address;
“carrying out” in relation to a work or works means the construction or the design and construction of that work or those works;
“central purchasing body” means a contracting authority within the meaning of regulation 3 of the Public Contracts Regulations 20064or regulation 3 of the Public Contracts (Scotland) Regulations 20065or a European public body, if that authority or body—
(a) acquires goods or services intended for one or more contracting authorities;
(b) awards contracts intended for one or more contracting authorities; or
(c) concludes framework agreements for work, works, goods or services intended for one or more contracting authorities;
“classified information” means any information or material, regardless of its form, nature or mode of transmission, to which a security classification or protection has been attributed and which in the interests of national security and in accordance with the law or administrative provisions of any part of the United Kingdom requires protection against appropriation, destruction, removal, disclosure, loss or access by any unauthorised individual, or any other type of compromise;
“the Commission” means the European Commission;
“ Commission Regulation (EC) No 1564/2005” means Commission Regulation (EC) No 1564/2005of 7 September 20056;
“Common Procurement Vocabulary” means the reference nomenclature applicable to contracts as adopted by Regulation (EC) No 2195/2002of 5th November 2002 of the European Parliament and of the Council on the Common Procurement Vocabulary7;
“competitive dialogue procedure” means a procedure—
(a) in which any economic operator may make a request to participate; and
(b) whereby a contracting authority conducts a dialogue with the economic operators admitted to that procedure with the aim of developing one or more suitable alternative solutions capable of meeting its requirements and on the basis of which the economic operators chosen by the contracting authority are invited to tender;
“contract” means, except in regulation 67 and unless specified otherwise, a services contract, a supply contract or a works contract;
“contract documents” means the invitation to tender for or to negotiate a contract, the descriptive document (if any), the proposed conditions of contract, the specifications or descriptions of the goods, services, work or works required by the contracting authority and of the materials or goods to be used in or for such work or works, and all documents supplementary thereto;
“contract notice” means, except in regulation 67, a notice sent to the Official Journal in accordance with these Regulations—
(a) subject to sub-paragraph (b), containing the information specified in Annex IV to the Defence and Security Procurement Directive; or
(b) if Commission Regulation (EC) No 1564/2005sets out a form to be used for this purpose, in that form and containing the information therein specified;
“contracting authority” has the meaning given to it by regulation 4;
“contractor” means a person who offers on the market work or works and—
(a) who sought, who seeks, or who would have wished, to be the person to whom a works contract is awarded; and
(b) who is a national of and established in a member State;
“CPV” means Common Procurement Vocabulary;
“crisis” means any situation—
(a) in which a harmful event has occurred which clearly exceeds the dimensions of harmful events in everyday life and which substantially endangers or restricts the life and health of people, or has a substantial impact on property values, or requires measures in order to supply the population with necessities, or
(b) in which such a harmful event is deemed by the Secretary of State to be impending,
and includes armed conflicts and wars;
“Defence and Security Procurement Directive” means Directive 2009/81/ECof the European Parliament and of the Council of 13th July 20098;
“disabled person” means any person recognised as disabled within the meaning of the Equality Act 20109and “disabled persons” is to be interpreted accordingly;
“disability” has the same meaning as in that Act;
“economic operator” has the meaning given to it by regulation 5;
“electronic auction” means a repetitive electronic process for the presentation of prices to be revised downwards or of new and improved values of quantifiable elements of tenders, including price, which—
(a) takes place after the initial evaluation of tenders; and
(b) enables tenders to be ranked using automatic evaluation methods;
“electronic means” means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
“established”, unless the context otherwise requires, has the same meaning as in the EU Treaties;
“European standard” has the meaning given to it in regulation 12(1);
“experimental development” means work based on existing knowledge obtained from research or practical experience with a view to initiating the manufacture of new materials, products or devices, establishing new processes, systems and services or considerably improving those that already exist and includes the realisation of technological demonstrators;
“financial year” means, unless the context otherwise requires, the period of 12 months ending on the date in any year in respect of which the accounts of any person are prepared;
“framework agreement” means, except in regulations 42 and 67, an agreement or other arrangement between one or more contracting authorities and one or more economic operators which establishes the terms (in particular the terms as to price and, where appropriate, quantity) under which the economic operator will enter into one or more contracts with a contracting authority in the period during which the framework agreement applies;
“fundamental research” means experimental or theoretical work undertaken mainly with a view to acquiring new knowledge regarding the underlying foundation of phenomena and observable facts without any particular application or use in view;
“goods” includes electricity, substances, growing crops and things attached to or forming part of the land which are agreed to be severed before the purchase or hire under a supply contract, and any ship, aircraft or vehicle;
“government department” includes a Northern Ireland department or the head of that department;
“international standard” has the meaning given to it in regulation 12(1);
“life cycle” means all the possible successive stages of a product, including research and development, industrial development, production, repair, modernisation, modification, maintenance, logistics, training, testing, withdrawal and disposal;
“military equipment” means equipment specifically designed or adapted for military purposes and...
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