The Defence and Security Public Contracts Regulations 2011

PART 1 U.K. GENERAL

Citation and commencement U.K.

1.  These Regulations may be cited as the Defence and Security Public Contracts Regulations 2011 and come into force on 21st August 2011.

Review U.K.

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 [F1 must], 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) set out the objectives intended to be achieved by the regulatory system established by those provisions;

(b) assess the extent to which those objectives have been achieved;

(c) include the assessment of the comparison between implementations; and

(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.

Textual Amendments

F1 Word in reg. 2(2) substituted (26.2.2015) by The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(2)

Interpretation U.K.

3.—(1) In these Regulations—

[F2 “the 1958 List” means, subject to regulation 65A, the list of arms, munitions and war material adopted by the Council of the European Economic Community in its decision 255/58 of 15th April 1958;]

“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 [F3 regulation 2(1) of the Public Contracts Regulations 2015] or [F4 regulation 2(1) of the Public Contracts (Scotland) Regulations 2015] or 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;

F5 ...

F6 ...

“Common Procurement Vocabulary” means the reference nomenclature applicable to contracts as adopted by Regulation (EC) No 2195/2002 of 5th November 2002 of the European Parliament and of the Council on the Common Procurement Vocabulary M1 ;

“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 [F7 but does not include a concession contract within the meaning of the Concession Contracts Regulations 2016];

“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 [F8 submitted to the UK e-notification service] in accordance with these Regulations—

(a)

[F9 subject to paragraph 2 of Schedule A1,] F10 ... containing the information specified [F11 for that notice] in Annex IV to the Defence and Security Procurement Directive; F12 ...

(b)

F12 ...

“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 [F13 the United Kingdom and is established in the United Kingdom or Gibraltar];

“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/EC of the European Parliament and of the Council of 13th July 2009 M2 ;

“disabled person” means any person recognised as disabled within the meaning of the Equality Act 2010 M3 F14 ...;

“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;

[F15 “member State”, except in regulation 2(2), also includes Iceland and Norway;]

“military equipment” means equipment specifically designed or adapted for military purposes and intended for use as arms, munitions or war material including equipment—

(a)

listed in the Common Military List of the European Union M4 [F16 adopted by the Council on] [F17 17 February 2020]; or

(b)

within the product types included in the [F18 1958 List];

“Minister of the Crown” means the holder of an office in Her Majesty's Government in the United Kingdom and includes the Treasury;

[F19 “national of the United Kingdom” means—

(a)

in the case of a person who is not an individual, a person formed in accordance with the laws of—

(i)

any part of the United Kingdom, or

(ii)

Gibraltar,

and which has its registered office, central administration or principal place of business in the United Kingdom or in Gibraltar;

(b)

in the case of an individual—

(i)

a British Citizen, or

(ii)

a person who is a British Overseas Territories Citizen by virtue of a connection with Gibraltar;]

“negotiated procedure” means a procedure leading to the award of a contract whereby the contracting authority negotiates the terms of the contract with one or more economic operators selected by it;

“Official Journal” means the Official Journal of the European Union;

“prior information notice” means a notice [F20 submitted to the UK e-notification service] in accordance with regulation 14—

(a)

[F21 subject to paragraph 3 of Schedule A1,] F22 ... containing the information specified [F23 for that notice] in Annex IV to the Defence and Security Procurement Directive; F24 ...

(b)

F24 ...

“research and development” means all activities comprising fundamental research, applied research and experimental development but does not include the making and qualification of pre-production prototypes, tools and industrial engineering, industrial design or manufacture;

“restricted procedure” means a procedure leading to the award of a contract whereby only economic operators selected by the contracting authority may submit tenders for the contract;

“sensitive equipment”, “sensitive work or works” and “sensitive services” means equipment, work or works and services for security purposes, involving, requiring or containing classified information;

“services contract” means a contract, in writing, for consideration (whatever the nature of the consideration) under which a contracting authority engages a person to provide services but does not include—

(a)

a works contract, or

(b)

a supply contract,

but a contract for both goods and services shall be considered to be a services contract if the value of the consideration attributable to those services exceeds that of the goods covered by the contract and a contract for services which includes activities specified in Schedule 1 that are only incidental to the principal object of the contract shall be considered to be a services contract;

“services provider” means a person who offers on the market services and—

(a)

who sought, who seeks, or who would have wished, to be the person to whom a services contract is awarded; and

(b)

who is a national of [F25 the United Kingdom and is established in the United Kingdom or Gibraltar];

“ship” includes any boat, hovercraft and other description of a vessel used in navigation;

“substance” means any natural or artificial substance, whether in solid, liquid or gaseous form or in the form of vapour;

“supplier” means a person who offers on the market goods for purchase or hire and—

(a)

who sought, who seeks, or who would have wished, to be the person to whom a supply contract is awarded; and

(b)

who is a national of [F26 the United Kingdom and is established in the United Kingdom or Gibraltar];

“supply contract” means a contract, in writing, for consideration (whatever the nature of the consideration)—

(a)

F27 for the purchase of goods by a contracting authority (whether or not the consideration is given in instalments and whether or not the purchase is conditional upon the occurrence of a particular event), or

(b)

F28 for the hire of goods by a contracting authority (both where the contracting authority becomes the owner of the goods after the end of the period of hire and where it does not),

and for any siting or installation of those goods, but where under such a contract services are also to be provided, the contract shall only be a supply contract where the value of the consideration attributable to the goods and any siting or installation of the goods is equal to or greater than the value attributable to the services;

“technological demonstrator” means a device demonstrating the performance of a new concept or a new technology in a relevant or representative environment;

“the TEU” means the Treaty on European Union M5 ;

“the TFEU” means the Treaty on the Functioning of the European Union M6 ;

[F29 the UK e-notification service” has the meaning mentioned in regulation 48(9), and references (in whatever terms) to the submission of notices to that service are to be construed in accordance with the provisions applied (and adapted) by regulation 48(9);]

“work”, unless the context otherwise requires, means the outcome of any works which is sufficient of itself to fulfil an economic and technical function;

“working day” means a day other than a Saturday, Sunday, Christmas Day, Good Friday or Bank Holiday within the meaning of the Banking and Financial Dealings Act 1971 M7 ;

“works” means any of the activities specified in Schedule 1;

“works contract” means a contract, in writing, for consideration (whatever the nature of the consideration)—

(a)

for the carrying out of a work or works for a contracting authority; or

(b)

under which a contracting authority engages a person to procure by any means the carrying out for the contracting authority of a work corresponding to specified requirements;

“written” or “in writing” means any expression consisting of words or figures that can be read, reproduced and subsequently communicated and it may include information transmitted and stored by electronic means; and

“year” means a calendar year.

(2) Subject to paragraph (3), in these Regulations—

(a) “a Part A services contract” is a contract under which services specified in Part A of Schedule 2 are to be provided;

(b) “a Part B services contract” is a contract under which services specified in Part B of Schedule 2 are to be provided.

(3) Where services specified in both Parts A and B of Schedule 2 are to be provided under a single contract, then the contract shall be treated as—

(a) a Part A services contract if the value of the consideration attributable to the services specified in Part A is greater than that attributable to those specified in Part B; and

(b) a Part B services contract if the value of the consideration attributable to the services specified in Part B is equal to or greater than that attributable to those specified in Part A.

(4) Except in Part 9, where a thing is required to be done under these Regulations—

(a) within a certain period after an action is taken, the day on which that action is taken shall not be counted in the calculation of that period;

(b) within a certain period, that period must include at least two working days; and

(c) within a certain period and the last day of that period is not a working day, the period shall be extended to include the next working day.

Textual Amendments

F2 Words in reg. 3(1) inserted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(a) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in reg. 3(1) substituted (26.2.2015) by The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(3)(a)

F4 Words in reg. 3(1) substituted (18.4.2016) by The Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446), reg. 1(2), sch. 6 para. 6(2) (with regs. 3-18, 99-101)

F5 Words in reg. 3(1) omitted (31.12.2020) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(b) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F6 Words in reg. 3(1) omitted (27.3.2019) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(a)

F7 Words in reg. 3(1) inserted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 39 (with reg. 5)

F8 Words in reg. 3(1) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(c)(i) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F9 Words in reg. 3(1) inserted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(c)(ii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F10 Words in reg. 3(1) omitted (27.3.2019) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(b)(i)(aa)

F11 Words in reg. 3(1) inserted (27.3.2019) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(b)(i)(bb)

F12 Words in reg. 3(1) omitted (27.3.2019) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(b)(ii)

F13 Words in reg. 3(1) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(d) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F14 Words in reg. 3(1) omitted (26.2.2015) by virtue of The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(3)(b)

F15 Words in reg. 3(1) inserted (27.3.2019) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(c)

F16 Words in reg. 3(1) inserted (27.3.2019) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(d)

F17 Words in reg. 3(1) substituted (29.11.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1450), regs. 1(2), 2(2)

F18 Words in reg. 3(1) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(e) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F19 Words in reg. 3(1) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(f) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F20 Words in reg. 3(1) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(g)(i) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F21 Words in reg. 3(1) inserted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(g)(ii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F22 Words in reg. 3(1) omitted (27.3.2019) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(e)(i)(aa)

F23 Words in reg. 3(1) inserted (27.3.2019) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(e)(i)(bb)

F24 Words in reg. 3(1) omitted (27.3.2019) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 2(2)(e)(ii)

F25 Words in reg. 3(1) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(h) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F26 Words in reg. 3(1) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(i) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F27 In the definition of “supply contract” in reg. 3(1) para. reference “(a)” substituted for para. reference “(c)” (26.2.2015) by The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(3)(c)(i)

F28 In the definition of “supply contract” in reg. 3(1) para. reference “(b)” substituted for para. reference “(d)” (26.2.2015) by The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(3)(c)(ii)

F29 Words in reg. 3(1) inserted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(2)(j) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M1 OJ No L 340, 16.12.2002, p.1; relevant amending instruments are Regulation (EC) No 213/2008 of the Commission of the European Communities, OJ No L 74, 15.3.2008, p.1 and Regulation (EC) No 596/2009 of the European Parliament and the Council, OJ No L 188, 18.7.2009, p.14.

M2 OJ No L 216, 20.8.2009, p.76, as amended by Commission Regulation (EC) No 1177/2009, OJ No L 314, 1.12.2009, p.64.

M3 2010 c. 15.

M4 OJ No C 86, 18.3.2011, p.1.

M5 OJ No C 115, 9.5.2008, p.13.

M6 OJ No C 115, 9.5.2008, p.47.

M7 1971 c. 80. There are amendments to this Act which are not relevant to these Regulations.

Contracting authorities U.K.

4.  For the purposes of these Regulations “contracting authority”, except the first occurrence in the definition of “central purchasing body”, means—

[F30 (a) “contracting authorities” within the meaning of regulation 2(1) of the Public Contracts Regulations 2015 [F31 or regulation 4(1) of the Utilities Contracts Regulations 2016]; ]

(b) a “contracting authority” within the meaning of [F32 regulation 2(1) of the Public Contracts (Scotland) Regulations 2015];

(c) a “utility” within the meaning of [F33 regulation 5 of the Utilities Contracts Regulations 2016]; and

(d) a “utility” within the meaning of regulation 3 of [F34 the Utilities Contracts (Scotland) Regulations 2012].

Textual Amendments

F30 Words in reg. 4(a) substituted (26.2.2015) by The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(4)

F31 Words in reg. 4(a) inserted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 40(2) (with reg. 5)

F32 Words in reg. 4(b) substituted (18.4.2016) by The Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446), reg. 1(2), sch. 6 para. 6(3) (with regs. 3-18, 99-101)

F33 Words in reg. 4(c) substituted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 40(3) (with reg. 5)

F34 Words in reg. 4(d) substituted (1.5.2012) by The Utilities Contracts (Scotland) Regulations 2012 (S.S.I. 2012/89), regs. 1(1), 50, sch. 5 Pt. B (with regs. 3-7, 9, 11)

Economic operators U.K.

5.—(1) In these Regulations, an “ economic operator” means a contractor, a supplier or a services provider.

(2) A contracting authority shall—

(a) treat economic operators equally and in a non-discriminatory way; and

(b) act in a transparent way.

Application U.K.

6.—(1) Subject to Article 4(2) of the TEU F35 ..., these Regulations apply whenever a contracting authority seeks offers in relation to a proposed supply contract, works contract, Part A services contract or, subject to paragraph (2), a framework agreement, other than a contract or framework agreement excluded from the application of these Regulations by regulation 7 or 9, for—

(a) the supply of military equipment, including any parts, components or subassemblies of military equipment;

(b) the supply of sensitive equipment, including any parts, components or subassemblies of sensitive equipment;

(c) work, works, goods or services directly related to equipment referred to in sub-paragraph (a) or (b) for any and all elements of its life cycle;

(d) work, works or services for specifically military purposes; or

(e) sensitive work or works or sensitive services.

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

(3) Subject to Article 4(2) of the TEU F36 ..., whenever a contracting authority seeks offers in relation to a proposed Part B services contract or a framework agreement in respect of which only Part B services contracts can be based or awarded, other than one excluded by virtue of regulation 7 or 9, for any services referred to in sub-paragraphs (c), (d) or (e) of paragraph (1)—

(a) Parts 1, 9 and 10 apply; and

(b) the following provisions in Parts 2 to 8 apply—

(i) regulation 12 (technical specifications in the contract documents);

(ii) regulation 32 (contract award notice);

(iii) regulation 46(2) (statistical and other reports);

(iv) regulation 47 (provision of reports); and

(v) regulation 48 (publication of notices).

[F37 (3A) These Regulations—

(a) do not oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b) do not preclude the United Kingdom from taking such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production or trade in arms, munitions and war material, provided that such measures do not adversely affect the conditions of competition regarding products which are not intended for specifically military purposes.

(3B) The arms, munitions and war material to which paragraph (3A)(b) applies are those included in the 1958 List.

(3C) Subject to the effect of any regulations made under regulation 65A, any measures which, if they had been taken immediately before IP completion day, would have been covered by Article 346 of the TFEU shall be regarded as measures covered by paragraph (3A).]

(4) Where a contract or framework agreement has as its object work, works, goods or services falling partly within the application of these Regulations and partly within the application of [F38 Part 2 of the Public Contracts Regulations 2015], the [F39 Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016,] [F40 the Public Contracts (Scotland) Regulations 2015] or [F41 the Utilities Contracts (Scotland) Regulations 2012] [F42 (or, as a result of regulation 118 of the Public Contracts Regulations 2015 or regulation 123 of the Utilities Contracts Regulations 2016, the Public Contracts Regulations 2006 or the Utilities Contracts Regulations 2006, as the case may be)] and the award of a single contract or the conclusion of a single framework agreement is justified for objective reasons, the contracting authority must award the contract or conclude the framework agreement in accordance with these Regulations.

(5) Where a contract or framework agreement has as its object work, works, goods or services falling partly within the application of these Regulations but with the other part not being within the application of either these Regulations, [F38 Part 2 of the Public Contracts Regulations 2015], the [F39 Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016,] [F40 the Public Contracts (Scotland) Regulations 2015] or [F41 the Utilities Contracts (Scotland) Regulations 2012] [F42 (or, as a result of regulation 118 of the Public Contracts Regulations 2015 or regulation 123 of the Utilities Contracts Regulations 2016, the Public Contracts Regulations 2006 or the Utilities Contracts Regulations 2006, as the case may be)] and the award of a single contract or the conclusion of a single framework agreement is justified for objective reasons, the award of the contract or the conclusion of the framework agreement is not subject to these Regulations.

(6) A contracting authority must not award a single contract or conclude a single framework agreement for the purpose of avoiding the application of these Regulations, [F38 Part 2 of the Public Contracts Regulations 2015 ], the [F39 Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016,] [F40 the Public Contracts (Scotland) Regulations 2015] or [F41 the Utilities Contracts (Scotland) Regulations 2012] [F42 (or, as a result of regulation 118 of the Public Contracts Regulations 2015 or regulation 123 of the Utilities Contracts Regulations 2016, the Public Contracts Regulations 2006 or the Utilities Contracts Regulations 2006, as the case may be)] where applicable.

F43 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F35 Words in reg. 6(1) omitted (1.3.2024) by virtue of The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 1(2)(a)

F36 Words in reg. 6(3) omitted (1.3.2024) by virtue of The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 1(2)(b)

F37 Reg. 6(3A)-(3C) inserted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(3)(b) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F38 Words in reg. 6 substituted (26.2.2015) by The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(5)

F39 Words in reg. 6(4)-(6) substituted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 41(a) (with reg. 5)

F40 Words in reg. 6 substituted (18.4.2016) by The Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446), reg. 1(2), sch. 6 para. 6(4) (with regs. 3-18, 99-101)

F41 Words in reg. 6(4)-(6) substituted (1.5.2012) by The Utilities Contracts (Scotland) Regulations 2012 (S.S.I. 2012/89), regs. 1(1), 50, sch. 5 Pt. B (with regs. 3-7, 9, 11)

F42 Words in reg. 6(4)-(6) inserted (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 41(b) (with reg. 5)

F43 Reg. 6(7) omitted (1.3.2024) by virtue of The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 1(2)(c)

General exclusions U.K.

7.—(1) These Regulations do not apply to the seeking of offers in relation to a proposed contract or framework agreement—

(a) where the application of these Regulations would oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b) for the purposes of intelligence activities;

(c) where the contract is to be awarded or the framework agreement is to be concluded in the framework of a cooperative programme based on research and development, conducted jointly by [F44 the United Kingdom and a member State] for the development of a new product and, where applicable, the later phases of all or part of the life cycle of the product;

(d) where the contract is to be awarded or the framework agreement is to be concluded in a State [F45 other than the United Kingdom or Gibraltar], including a contract or framework agreement for a civil purchase, carried out when forces are deployed outside [F46 United Kingdom and Gibraltar] where operational needs require them to be concluded with economic operators located in the area of operations;

(e) which is governed by specific procedural rules—

(i) pursuant to an international agreement or arrangement concluded between the United Kingdom and [F47 another State];

(ii) pursuant to a concluded international agreement or arrangement relating to the stationing of troops and concerning the undertakings of a member State or a State which is not a member State; or

(iii) of an organisation, of which only States are members (an “international organisation”) or of which only States or international organisations are members, purchasing for its purposes;

(f) which must be awarded by [F48 the United Kingdom] in accordance with specific procedural rules of an organisation referred to in sub-paragraph (e)(iii);

(g) for the acquisition of land F49 ...;

(h) where a government is to award a contract to, or conclude a framework agreement with, another government relating to—

(i) the supply of military equipment or sensitive equipment;

(ii) work, works or services directly linked to such equipment; or

(iii) work, works or services specifically for military purposes, or sensitive work or works or sensitive services;

(i) for arbitration or conciliation services;

(j) for financial services, with the exception of insurance services;

(k) for employment and other contracts of service; or

(l) for research and development services unless—

(i) the benefits are to accrue exclusively to the contracting authority for its use in the conduct of its own affairs; and

(ii) the services are to be wholly paid for by the contracting authority.

(2) For the purposes of paragraph (1)(h) “government” means the State, regional or local government of a member State or a State which is not a member State.

Textual Amendments

F44 Words in reg. 7(1)(c) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(4)(a) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F45 Words in reg. 7(1)(d) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(4)(b)(i) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F46 Words in reg. 7(1)(d) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(4)(b)(ii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F47 Words in reg. 7(1)(e)(i) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(4)(c) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F48 Words in reg. 7(1)(f) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(4)(d) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F49 Words in reg. 7(1)(g) omitted (26.2.2015) by virtue of The Public Contracts Regulations 2015 (S.I. 2015/102), reg. 1(2), Sch. 6 para. 19(6)

Reserved contracts U.K.

8.—(1) In this regulation—

“supported business” means a service where more than 50% of the workers are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and “supported businesses” shall be interpreted accordingly;

“supported employment programme” means a scheme under which work is provided for disabled persons and where more than 50% of the workers so supported are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and “supported employment programmes” shall be interpreted accordingly; and

“supported factory” means an establishment where more than 50% of the workers are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and “supported factories” shall be interpreted accordingly.

(2) A contracting authority may reserve the right to participate in a contract award procedure or framework agreement to economic operators which operate supported factories, supported businesses or supported employment programmes.

(3) Where a contracting authority has reserved the right to participate in a contract or framework agreement in accordance with paragraph (2), it shall follow the contract award procedures set out in these Regulations.

(4) When seeking offers in relation to a contract or a framework agreement, a contracting authority shall specify in the contract notice if it is using the approach referred to in paragraph (2).

Thresholds U.K.

9.—(1) These Regulations do not apply to the seeking of offers in relation to a proposed contract or framework agreement where the estimated value of the contract or framework agreement ( [F50 inclusive] of value added tax) at the relevant time is less than the relevant threshold.

(2) For the purposes of paragraph (1) the relevant threshold is the sum [F51 for the time being] mentioned in—

(a) [F52 Regulation 16(1)(a) of the Utilities Contracts Regulations 2016]M8 in the case of a supply contract or a services contract; and

(b) [F53 Regulation 16(1)(b) of those Regulations] in the case of a works contract.

F54 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F54 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) For the purposes of paragraph (1) the estimated value of a contract shall be the value of the total consideration payable, [F55 inclusive] of value added tax, (calculated in accordance with this regulation), which the contracting authority expects to be payable under the contract.

(6) In determining the value of the total consideration which the contracting authority expects to be payable under a contract it shall, where appropriate, take account of—

(a) any form of option;

(b) any renewal of the contract;

(c) any prize or payment awarded by the contracting authority to the economic operator;

(d) the premium payable and other forms of remuneration for insurance services; and

(e) fees, commission or other forms of remuneration payable for design services.

(7) For the purposes of paragraph (1) the estimated value of a supply contract for the hire of goods is—

(a) the value of the consideration which the contracting authority expects to be payable under the contract if the term of the contract is fixed for 12 months or less;

(b) the value of the consideration which the contracting authority expects to be payable under the contract if the term of the contract is fixed for more than 12 months; or

(c) the value of the monthly consideration payable under the contract multiplied by 48 if the term of the contract is indefinite or uncertain at the time the contract is entered into.

(8) For the purposes of paragraph (1) the estimated value of a services contract which does not indicate a total price is—

(a) the aggregate of the value of the consideration which the contracting authority expects to be payable under the contract if the term of the contract is fixed for 48 months or less; or

(b) the value of the consideration which the contracting authority expects to be payable in respect of each month of the period multiplied by 48 if the term of the contract is fixed for more than 48 months, or over an indefinite period.

(9) Subject to paragraphs (10) and (13), where a contracting authority has a single requirement for goods or services or for the carrying out of a work or works and a number of contracts have been entered into or are to be entered into to fulfil that requirement, the estimated value for the purposes of paragraph (1) of each of those contracts is the aggregate of the value of the consideration which the contracting authority expects to be payable under each of those contracts.

(10) Paragraph (9) does not apply to any contract (unless the contracting authority chooses to apply that paragraph to a contract) if the contract has an estimated value of less than—

(a) [F56 £70,778 ] for a services contract or a supply contract, or

(b) [F57 £884,720] for a works contract,

and the aggregate value of that contract and any other such contract is less than 20% of the aggregate value of the consideration which the contracting authority has given or expects to be payable under all the contracts entered into or to be entered into to fulfil the single requirement for goods, services or for the carrying out of work or works.

(11) Subject to paragraph (13), where a contracting authority has a requirement over a period for goods or services and for that purpose enters into—

(a) a series of contracts, or

(b) a contract which under its terms is renewable,

the estimated value for the purposes of paragraph (1) of the contract shall be the amount calculated under paragraph (12).

(12) The contracting authority shall calculate the amount referred to in paragraph (11) either—

(a) by taking the aggregate of the value of the consideration payable under the contracts which—

(i) have similar characteristics, and

(ii) are for the same type of goods or services,

during the last financial year of the contracting authority ending before, or the period of 12 months ending immediately before, the relevant time, and by adjusting that amount to take account of any expected changes in quantity and cost of the goods to be purchased or hired or services to be provided in the period of 12 months commencing with the relevant time; or

(b) by estimating the aggregate of the value of the consideration which the contracting authority expects to be payable under contracts which have similar characteristics, and which are for the same type of goods or services during—

(i) in the case of supply contracts, the period of 12 months from the first date of the delivery of the goods to be purchased or hired, or in the case of services contracts, from the first date on which the services will be performed; or

(ii) the financial year if that is longer than 12 months.

(13) Notwithstanding paragraphs (9) and (11), in relation to a supply contract or a services contract, when the goods or services are required for the sole purposes of a discrete operational unit within the organisation of a contracting authority and—

(a) the decision whether to procure those goods or services has been devolved to such a unit, and

(b) that decision is taken independently of any other part of the contracting authority,

the valuation methods described in paragraphs (9) and (12) shall be adapted by aggregating only the value of the consideration which was payable or the contracting authority expects to be payable, as the case may be, under a supply contract or a services contract which was or is required for the sole purpose of that unit.

(14) Where a contracting authority intends to provide any goods to the economic operator awarded a works contract for the purpose of carrying out that contract, the value of the consideration of the works contract for the purposes of paragraphs (5) and (9) shall be taken to include the estimated value at the relevant time of those goods.

(15) The relevant threshold for the purposes of paragraph (1) for a framework agreement is the threshold for—

(a) a works contract, where the framework agreement relates to the carrying out of work or works;

(b) a services contract, where the framework agreement relates to the provision of services; or

(c) a supply contract, where the framework agreement relates to the purchase or hire of goods.

(16) The estimated value of a framework agreement is the aggregate of the values estimated in accordance with this regulation of all the contracts which could be entered into under the framework agreement.

(17) A contracting authority shall not enter into separate contracts nor exercise a choice under a valuation method with the intention of avoiding the application of these Regulations to those contracts.

(18) The relevant time for the purposes of paragraphs (1), (12) and (14) means the date on which a contract notice would be [F58 submitted to the UK e-notification service] if the requirement to send such a notice applied to that contract in accordance with these Regulations.

Textual Amendments

F50 Word in reg. 9(1) substituted (1.1.2022) by The Public Procurement (Agreement on Government Procurement) (Thresholds) (Amendment) Regulations 2021 (S.I. 2021/1221), regs. 1(1), 2(2)(a)(i) (with reg. 7)

F51 Words in reg. 9(2) inserted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(5)(a)(i) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F52 Words in reg. 9(2)(a) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(5)(a)(ii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F53 Words in reg. 9(2)(b) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(5)(a)(iii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F54 Reg. 9(3)(4) omitted (31.12.2020) by virtue of The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(5)(b) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F55 Word in reg. 9(5) substituted (1.1.2022) by The Public Procurement (Agreement on Government Procurement) (Thresholds) (Amendment) Regulations 2021 (S.I. 2021/1221), regs. 1(1), 2(2)(a)(ii) (with reg. 7)

F56 Sum in reg. 9(10)(a) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(5)(c)(i) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F57 Sum in reg. 9(10)(b) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(5)(c)(ii) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F58 Words in reg. 9(18) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(5)(d) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M8 S.I. 2016/274, amended by S.I. 2019/560 (which, with effect from exit day, amends regulation 16(1)(a) and (b) so that they mention the sums of £363,424 and £4,551,413 respectively, and inserts a new regulation 16A under which those sums must be reviewed every two years and, if certain criteria are met, be changed by amending regulations made under that new regulation 16A); there are other amending instruments but none is relevant.

Confidential information U.K.

10.—(1) Subject to the provisions of these Regulations and in accordance with the law of any part of the United Kingdom to which the contracting authority is subject and subject to contractually acquired rights, a contracting authority shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.

(2) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders.

Classified information U.K.

11.—(1) A contracting authority may impose on an economic operator requirements aimed at protecting classified information which the contracting authority communicates to the economic operator throughout the tendering and contracting procedure.

(2) A contracting authority may require that an economic operator provides for the compliance by its sub-contractors with requirements imposed upon the economic operator under paragraph (1).