The Defence and Security Public Contracts Regulations 2011

Application U.K.

6.—(1) Subject to Article 4(2) of the TEU and [F1 specified retained EU law], 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 and [F2 specified retained EU law], 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).

[F3 (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 [F4 Part 2 of the Public Contracts Regulations 2015], the [F5 Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016,] [F6 the Public Contracts (Scotland) Regulations 2015] or [F7 the Utilities Contracts (Scotland) Regulations 2012] [F8 (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, [F4 Part 2 of the Public Contracts Regulations 2015], the [F5 Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016,] [F6 the Public Contracts (Scotland) Regulations 2015] or [F7 the Utilities Contracts (Scotland) Regulations 2012] [F8 (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, [F4 Part 2 of the Public Contracts Regulations 2015 ], the [F5 Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016,] [F6 the Public Contracts (Scotland) Regulations 2015] or [F7 the Utilities Contracts (Scotland) Regulations 2012] [F8 (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.

[F9 (7) In this regulation, “specified retained EU law” means anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 because of the effect which Article 36, 51, 52 or 62 of the TFEU had immediately before IP completion day in giving rise to any of the rights, powers, liabilities, obligations, restrictions, remedies and procedures mentioned in that section.]

Textual Amendments

F1 Words in reg. 6(1) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(3)(a) (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. 6(3) substituted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(3)(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 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)

F4 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)

F5 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)

F6 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)

F7 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)

F8 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)

F9 Reg. 6(7) inserted (31.12.2020) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/697), regs. 1, 3(3)(c) (with reg. 4) (as amended by S.I. 2020/1450, regs. 1(3), 3(3)); 2020 c. 1, Sch. 5 para. 1(1)