Mixed procurement involving defence or security aspectsS
17.—(1) This regulation applies where a procurement has as its subject a mixed contract, the procurement of any part of which, if separated, would be covered by [F1regulation 3(2)] or the Defence and Security Regulations.
(2) Where different parts of a given contract are objectively separable, a contracting authority may decide to undertake procurement for the award of—
(a)separate contracts for the separate parts; or
(b)a single contract.
(3) Any decision to undertake a procurement for the award of a single contract must not be made for the purpose of excluding the procurement from the application of these Regulations or the Defence and Security Regulations.
(4) Where a contracting authority decides to undertake procurement for the award of separate contracts for separate parts the applicable law for the procurement of each separate contract is to be determined by the characteristics of such contract.
(5) Where a contracting authority decides, in accordance with paragraph (6), to undertake a procurement for the award of a single contract, and—
(a)part of the contract is covered by [F2regulation 3(2)], the contract may be awarded without applying these Regulations; or
(b)part of the contract is covered by the Defence and Security Regulations, the procurement may be undertaken in accordance with those Regulations, in which event these Regulations do not apply to such procurement.
(6) A contracting authority may only decide to undertake a procurement for the award of a single contract of a kind referred to in paragraph (5) where—
(a)different parts of such a contract are not objectively separable; or
(b)such decision is justified by objective reasons.
(7) Paragraph (5)(b) is without prejudice to the thresholds and exclusions provided for by the Defence and Security Regulations.
(8) Paragraph (5)(a) applies to a mixed contract to which both paragraph (5)(a) and (5)(b) could otherwise apply.
Textual Amendments
F1Words in reg. 17(1) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(15) (with sch. paras. 1-5)
F2Words in reg. 17(5)(a) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 4(15) (with sch. paras. 1-5)