The Defence and Security Public Contracts Regulations 2011

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 2006(1) or regulation 3 of the Public Contracts (Scotland) Regulations 2006(2) 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;

“the Commission” means the European Commission;

“Commission Regulation (EC) No 1564/2005” means Commission Regulation (EC) No 1564/2005 of 7 September 2005(3);

“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(4);

“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 1564/2005 sets 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/EC of the European Parliament and of the Council of 13th July 2009(5);

“disabled person” means any person recognised as disabled within the meaning of the Equality Act 2010(6) and “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 intended for use as arms, munitions or war material including equipment—

(a)

listed in the Common Military List of the European Union(7) as amended from time to time; or

(b)

within the product types included in the list of arms, munitions and war material adopted by the Council in its decision 255/58 of 15th April 1958;

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

“national of a member State” means, in the case of a person who is not an individual, a person formed in accordance with the laws of a member State and which has its registered office, central administration or principal place of business in a member State;

“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 sent to the Official Journal in accordance with regulation 14—

(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 1564/2005 sets out a form to be used for this purpose, in that form and containing the information therein specified;

“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 and established in a member State;

“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 and established in a member State;

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

(c)

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

(d)

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(8);

“the TFEU” means the Treaty on the Functioning of the European Union(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(10);

“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.

(1)

S.I. 2006/5; amended by S.I. 2007/2157, 2007/3542, 2008/2256, 2008/2683, 2008/2848, 2009/1307 and 2009/2992.

(2)

S.S.I. 2006/1; amended by S.I. 2007/2157 and S.S.I. 2007/565, 2008/94, 2008/291, 2008/376, 2009/428 and 2010/222. S.S.I. 2009/428 was amended by S.S.I. 2009/439.

(3)

OJ No L 257, 1.10.2005, p.1, as amended by Commission Regulation (EC) No 1792/2006, OJ No L 362, 20.12.2006, p.1 and Commission Regulation (EC) No 1150/2009, OJ No L 313, 28.11.2009, p.3.

(4)

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.

(5)

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.

(6)

2010 c. 15.

(7)

OJ No C 86, 18.3.2011, p.1.

(8)

OJ No C 115, 9.5.2008, p.13.

(9)

OJ No C 115, 9.5.2008, p.47.

(10)

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