The Public Contracts and Utilities Contracts (Amendment) Regulations 2007

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Public Contracts and Utilities Contracts (Amendment) Regulations 2007.

(2) These Regulations come into force for the purposes of regulations 2 and 3 on 1st January 2008 and for all other purposes on 8th January 2008.

(3) In these Regulations “the Public Contracts Regulations” means the Public Contracts Regulations 2006(1) and “the Utilities Contracts Regulations” means the Utilities Contracts Regulations 2006(2).

Thresholds—Amendments to the Public Contracts Regulations

2.—(1) The Public Contracts Regulations are amended as follows.

(2) In regulation 8 (thresholds)—

(a) in paragraph (2), for “5,278,000 euro” substitute “the sum mentioned in Article 7(c) of the Public Sector Directive”(3);

(b) in paragraph (3)(a), for “137 000 euro” substitute “the sum mentioned in Article 7(a) of the Public Sector Directive”;

(c) in paragraph (3)(b), for “211,000 euro” substitute “the sum mentioned in Article 7(b) of the Public Sector Directive”;

(d) in paragraph (4), for “211,000 euro” substitute “the sum mentioned in Article 7(b) of the Public Sector Directive”;

(e) in paragraph (5)(a), for “137,000 euro” substitute “the sum mentioned in Article 7(a) of the Public Sector Directive”;

(f) in paragraph (5)(b), for “211,000 euro” substitute “the sum mentioned in Article 7(b) of the Public Sector Directive”; and

(g) after paragraph (5), insert—

“(5A) References in paragraphs (2) to (5) to the Public Sector Directive are references to that Directive as amended from time to time.”.

(3) In paragraph 4(b) of regulation 11 (prior information notices), for “5,278,000 euro” substitute “the sum mentioned in Article 7(c) of the Public Sector Directive as amended from time to time”.

(4) In regulation 33 (design contests):

(a) in paragraph (4)(a), for “137,000 euro” substitute “the sum mentioned in Article 67(1)(a) of the Public Sector Directive”;

(b) in paragraph (4)(b), for “211,000 euro” substitute “the sum mentioned in Article 67(1)(b) of the Public Sector Directive”;

(c) in paragraph (5), for “211,000 euro” substitute “the sum mentioned in Article 67(1)(c) of the Public Sector Directive”; and

(d) after paragraph (5), insert—

“(5A) References in paragraphs (4) and (5) to the Public Sector Directive are references to that Directive as amended from time to time.”.

(5) In paragraph (2) of regulation 36 (public works concession contracts), for “5,278,000 euro” substitute “the sum mentioned in the first paragraph of Article 56 of the Public Sector Directive as amended from time to time”.

Thresholds – Amendments to the Utilities Contracts Regulations

3.—(1) The Utilities Contracts Regulations are amended as follows.

(2) In regulation 11 (thresholds)—

(a) In paragraph (2)(a), for “422,000 euro” substitute “the sum mentioned in Article 16(a) of the Utilities Directive”;

(b) In paragraph (2)(b), for “5,278,000 euro” substitute “the sum mentioned in Article 16(b) of the Utilities Directive”; and

(c) After paragraph (2), insert—

“(2A) References in paragraph (2) to the Utilities Directive are references to that Directive as amended from time to time.”

(3) In paragraph (4)(b) of regulation 15 (periodic indicative notices), for “5,278,000 euro” substitute “the sum mentioned in Article 16(b) of the Utilities Directive as amended from time to time”.

(4) In regulation 34 (design contests)—

(a) In paragraph (2), for “the relevant threshold described in paragraph (4)” substitute “the sum mentioned in Article 61(1) of the Utilities Directive”.

(b) In paragraph (3)(b), for “the relevant threshold described in paragraph (4)” substitute “the sum mentioned in Article 61(2) of the Utilities Directive”; and

(c) In paragraph (4), for “the relevant threshold is 422,000 euro” substitute “references to the Utilities Directive are references to that Directive as amended from time to time”.

Professional and trade registers—Amendments to the Public Contracts Regulations

4.—(1) The Public Contracts Regulations are amended as follows.

(2) In regulation 23 (criteria for the rejection of economic operators)—

(a) in paragraph (4)(j) for “(7), (8) and (9)”, substitute “(7), (7A), (7B), (8), (8A), (8B) and (9)”;

(b) after paragraph (7), insert—

“(7A) An economic operator established in Cyprus shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if—

(a) in relation to procedures for the award of a public services contract or a public supply contract the economic operator is either—

(i) certified as incorporated by the Registrar of Companies and Official Receiver (EjoroV Etairei—n kai EpíohmoV ParalípthV); or

(ii) certified as having declared on oath that the economic operator is carrying on business in the trade in question in Cyprus at a specific place of business and under a specific trading name; or

(b) in relation to procedures for the award of a public works contract the economic operator is certified by the Council for the Registration and Audit of Civil Engineering and Building Contractors (Σumboúlio EggrajúV kai Elégcou Ergolhptén Oikodomikénkai Tecnikén 'Ergwn) according to the Registration and Audit of Civil Engineering and Building Contractors Law of Cyprus.

(7B) An economic operator established in Malta shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if—

(a) the economic operator produces its “numru ta⅝ registrazzjoni tat- Taxxa tal- Valur Mizjud (VAT) u n- numru tal-licenzja ta⅝ kummerc”; and

(b) where the economic operator is a member of a partnership or is a company, it produces the relevant registration number issued by the Malta Financial Services Authority.”.

(c) after paragraph (8), insert—

“(8A) In relation to procedures for the award of a public services contract, an economic operator established in Hungary shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator is certified as being entitled to be engaged in the trade in question in Hungary.

(8B) In relation to procedures for the award of a public supply contract, an economic operator established in Spain shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator is certified as having declared on oath that it is entitled to be engaged in the trade in question in Spain.”

(3) In the table in Schedule 4 (extension to non-member states), omit the following entries—

(a) 1. Bulgaria; and

(b) 5. Romania.

(4) For Schedule 6 (professional or trade registers) substitute the Schedule set out in the Schedule to these Regulations.

Professional and trade registers—Amendments to the Utilities Contracts Regulations

5.—(1) In the table in Schedule 4 to the Utilities Contracts Regulations (extension to non-member states), omit the following entries—

(a) Bulgaria; and

(b) Romania.

Miscellaneous amendments to the Public Contracts Regulations

6.—(1) The Public Contracts Regulations are amended as follows.

(2) In regulation 5 (application)—

(a) in paragraph (1), after “Subject to paragraph” insert “(1A) and”;

(b) after paragraph (1), insert—

“(1A) Paragraph (1) does not apply whenever a contracting authority seeks offers in relation to a proposed framework agreement or dynamic purchasing system in respect of which only Part B services contracts can be based or awarded.”

(c) in paragraph (2), after “Part B services contract” insert “or a framework agreement or dynamic purchasing system in respect of which only Part B services contracts can be based or awarded”;

(d) in paragraph (2)(a), for “Parts 1, 8 and 9” substitute “Parts 1, 9 and 10”;

(e) in paragraph (2)(b), for “Parts 2 to 7” substitute “Parts 2 to 8”;

(f) in paragraph (3)(a), for “Parts 1, 8 and 9” substitute “Parts 1, 9 and 10”; and

(g) in paragraph (3)(b), for “Parts 6 and 7” substitute “Parts 6, 7 and 8”.

(3) In regulation 8 (thresholds) for paragraph (4)(b), substitute—

“(b) for telecommunications services specified under CPV references 64221000-1, 64227000-3, 64228000-0, 64228100-1, 64228200-2 within category 5 of Part A of Schedule 3;”.

(4) In regulation 13(a)(ii) (use of the negotiated procedure with prior publication of a contract notice), for “or 16(7)” substitute “, (16)7 or 18(10)”.

(5) In regulation 14 (use of the negotiated procedure without prior publication of a contract notice)—

(a) for paragraph (1)(a)(i), substitute—

“(i) when a contracting authority is using the negotiated procedure in accordance with regulation 13(a) and invites to negotiate the contract all of, and only, those economic operators which submitted a tender following an invitation made during the course of the discontinued open procedure, restricted procedure or competitive dialogue procedure (not being a tender which was excluded in accordance with regulation 15(11), 16(7) or 18(10));”; and

(b) in paragraph (5)(b), for “regulation 11” substitute “regulation 8”.

(6) In paragraph (2) of regulation 16 (restricted procedure) for “informing the intention,” substitute “forming the intention,”.

(7) In paragraph (3) of regulation 31 (contract award notice), omit “which has been concluded in accordance with regulation 19”.

(8) In regulation 33 (design contests)—

(a) for paragraph (5)(a), substitute—

“(a) for telecommunications services specified under CPV references 64221000-1, 64227000-3, 64228000-0, 64228100-1, 64228200-2 within category 5 of Part A of Schedule 3;”; and

(b) in paragraph (5)(b), for “category 8 or Part A of Schedule 3” substitute “category 8 of Part A of Schedule 3”.

(9) In regulation 37 (sub-contracting the work or works to be carried out under a public works concession contract)—

(a) For paragraph (4)(b) substitute—

“(b) which the concessionaire does not intend to enter into with an economic operator who is—

(i) a member of the group of economic operators which acted jointly for the purpose of obtaining the public works concession contract; or

(ii) related to it or to any member of that group; and”

(b) For paragraph (13) substitute—

“(13) A contracting authority shall require applicants for a public works concession contract to submit with the application a list of—

(a) all economic operators which are related to the applicant, and

(b) all economic operators which are related to the economic operators referred to in sub-paragraph (a)

and to submit an updated list from time to time to take account of any changes in the economic operators referred to in sub-paragraphs (a) and (b).”

(10) In Schedule 1 (GPA Annex 1 Contracting Authorities), for “National History Museum” substitute “Natural History Museum”.

(11) In category 24 in Part B of Schedule 3 (categories of service), for “Education and vocational health services” substitute “Education and vocational education services”.

Miscellaneous Amendments to the Utilities Contracts Regulations

7.—(1) The Utilities Contracts Regulations are amended as follows.

(2) In paragraph (1) of regulation 2 (interpretation), in the definition of “central purchasing body” for “means a utility which is a contracting authority” substitute “means a contracting authority,”.

(3) In paragraph (4) of regulation 7 (exclusion of contracts awarded to affiliated undertakings or joint ventures), for “a utility may calculate” substitute “a utility shall calculate”.

Steve McCabe

Alan Campbell

Two of the Lords Commissioners of Her Majesty’s Treasury

17th December 2007