The Defence and Security Public Contracts Regulations 2011

Information about contract award procedures U.K.

Award decision notice

33.—(1) Subject to paragraph (11), a contracting authority shall, at the earliest opportunity after the decision has been made, inform the tenderers and candidates of its decision to—

(a) award the contract, or

(b) conclude the framework agreement,

and shall do so by notice in writing by the most rapid means of communication practicable.

(2) Where it is to be sent to a tenderer, the notice referred to in paragraph (1) shall include—

(a) the criteria for the award of the contract;

(b) the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) obtained by—

(i) the economic operator which is to receive the notice, and

(ii) the economic operator—

(aa) to be awarded the contract; or

(bb) to become a party to the framework agreement,

and anything required by paragraph (8);

(c) the name of the economic operator—

(i) to be awarded the contract; or

(ii) to become a party to the framework agreement; and

(d) a precise statement of either—

(i) when, in accordance with regulation 34, the standstill period is expected to end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or

(ii) the date before which the contracting authority will not, in conformity with regulation 34, enter into the contract or conclude the framework agreement.

(3) Where it is to be sent to a candidate, the notice referred to in paragraph (1) shall include—

(a) the reasons why the candidate was unsuccessful; and

(b) the information mentioned in paragraph (2), but as if the words “and relative advantages” were omitted from sub-paragraph (b).

(4) Where the contract or framework agreement is permitted by these Regulations to be awarded or concluded without the prior publication of a contract notice, the contracting authority need not comply with paragraph (1).

(5) Where the only tenderer is the one who is to be awarded the contract or who is to become a party to the framework agreement, and there are no candidates, the contracting authority need not comply with paragraph (1).

(6) Where a contracting authority awards a contract under a framework agreement, that contracting authority need not comply with paragraph (1).

Reasons to be given on request to unsuccessful economic operators

(7) Except to the extent that the contracting authority has already informed the economic operator (whether by notice under paragraph (1) or otherwise), and subject to paragraph (11), a contracting authority shall at the earliest opportunity and at the latest within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful (whether in accordance with regulation 17(7), 17(8), 18(9), 18(10), 18(24), 18(25), 19(10), 19(11), 19(24), 19(25), 20(9) or 31)—

(a) inform that economic operator of the reasons why it was unsuccessful; and

(b) if the economic operator submitted an admissible tender, the contracting authority shall inform that economic operator of the characteristics and relative advantages of the successful tender and—

(i) the name of the economic operator to be awarded the contract; or

(ii) the names of the parties to the framework agreement.

(8) The reasons referred to in paragraphs (2)(b) and (7)(a) shall include—

(a) any reason for the contracting authority's decision that the economic operator did not meet the technical specifications—

(i) as specified in regulation 12(5) by an equivalent means; or

(ii) in terms of the performance or functional requirements in regulation 12(6) by an equivalent means; and

(b) any reason for the contracting authority's decision that the economic operator did not meet its requirements of security of information and security of supply as set out in accordance with regulations 38 and 39.

Abandonment or recommencement of procedure

(9) Subject to paragraph (11), a contracting authority shall as soon as possible after the decision has been made, inform any candidates and tenderers, of its decision to abandon or to recommence a contract award procedure in respect of which a contract notice has been published, in relation to—

(a) the award of a contract; or

(b) the conclusion of a framework agreement.

(10) A contracting authority which informs an economic operator of its decision in accordance with paragraph (9) shall—

(a) include the reasons for the decision; and

(b) provide the decision and reasons in writing if requested by the economic operator.

Grounds for withholding information

(11) A contracting authority may withhold any information to be provided in accordance with paragraph (1), (7) or (9) where the disclosure of such information—

(a) would impede law enforcement;

(b) would otherwise be contrary to the public interest, in particular defence or security interests;

(c) would prejudice the legitimate commercial interests of any economic operator; or

(d) might prejudice fair competition between economic operators.

Records and reports

(12) A contracting authority shall prepare a record in relation to each contract awarded by it or framework agreement concluded by it, specifying—

(a) the name and address of the contracting authority;

(b) the award procedure chosen;

(c) the value of the consideration to be given under the contract or framework agreement and—

(i) the type of goods purchased or hired;

(ii) the work or works to be carried out; or

(iii) the services to be provided;

(d) where offers were evaluated in accordance with regulation 31, the names of the economic operators which submitted those offers and where the contracting authority has used the restricted procedure or negotiated procedure, the reasons why those economic operators were selected;

(e) the name of any economic operator—

(i) to which the contract was awarded, or

(ii) with which the framework agreement was concluded,

and the reasons for having awarded the contract to, or concluded the framework agreement with that economic operator;

(f) the names of the economic operators which were unsuccessful in the circumstances referred to in regulation 17(7), 17(8), 18(9), 18(10), 19(10), 19(11) or 31 and the reasons why they were unsuccessful;

(g) if known to the contracting authority, the parts and proportion of the contract or framework agreement that the economic operator to which the contract has been awarded, or with which the framework agreement has been concluded, intends to sub-contract to another economic operator;

(h) in the case of a contracting authority which used the negotiated procedure without the prior publication of a contract notice, which of the circumstances specified in regulation 16 constituted grounds for using that procedure;

(i) in the case of a contracting authority which used the negotiated procedure without the prior publication of a contract notice, if relevant, reasons for exceeding the time limits laid down in regulation 16(3);

(j) if relevant, the reasons for the framework agreement lasting more than seven years;

(k) in the case of a contracting authority which used the competitive dialogue procedure, details of the circumstances which constituted grounds for using that procedure in accordance with regulation 19(2); and

(l) where a contracting authority has abandoned a contract award procedure or the conclusion of a framework agreement, the reasons why the contracting authority has decided not to award the contract or conclude the framework agreement as the case may be.

(13) A contracting authority shall keep appropriate information to document the progress of contract award procedures conducted by electronic means.

F1 (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definitions

(15) For the purposes of this regulation—

(a) “candidate” means an economic operator (other than a tenderer) which applied—

(i) to be included amongst the economic operators to be selected to tender or to negotiate the contract, or

(ii) to be a party to the framework agreement,

but does not include an economic operator which has been informed of the rejection of its application, and the reasons for it; and

(b) “tenderer” means an economic operator which submitted an [F2 offer and has not been definitively excluded].

[F3 (16) For the purposes of paragraph (15)(b)—

(a) a tenderer has been excluded if its offer has been excluded from consideration; and

(b) an exclusion is definitive if, and only if, the tenderer has been notified of the exclusion and either—

(i) the exclusion has been held to be lawful in proceedings under Part 9; or

(ii) the time limit for starting such proceedings has expired even on the assumption that the Court would have granted the maximum extension permitted by regulation 53(4) and (5).]

Textual Amendments

F1 Reg. 33(14) 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(20) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)

F2 Words in reg. 33(15)(b) substituted (1.10.2011) by The Public Procurement (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/2053), regs. 1, 27(a) (with reg. 10)

F3 Reg. 33(16) inserted (1.10.2011) by The Public Procurement (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/2053), regs. 1, 27(b) (with regs. 9(3), 10)