The Wireless Telegraphy (Licence Award) Regulations 2018

PART 9 Activity rules

Forfeit of deposit and exclusion from award process

112.  If, in relation to an applicant which is qualified to bid or a bidder, OFCOM are satisfied that any of the events set out in regulation 115 are occurring (or have occurred) and that the occurrence would materially affect the outcome of the award process or would affect that bidder’s 2.3 GHz bid limit or overall bid constraint—

(a) any sum paid as a deposit under these Regulations shall be forfeited (together with any interest which has accrued on the deposit) by, and not refunded to, the applicant or bidder concerned; and

(b) that applicant or bidder may also be excluded from the award process by OFCOM giving that applicant or bidder notice in writing.

Bids made by an excluded bidder

113.—(1) Subject to regulation 114, where a bidder is excluded from the award process under regulation 112 during the principal stage, OFCOM shall determine whether it should disregard the bids (and other bidding indications made on its principal stage form) made in any principal stage rounds prior to the exclusion, in order to have a fair and efficient outcome to the award process.

(2) Where OFCOM determine that it is appropriate to disregard the bids (and other bidding indications) made in any principal stage rounds—

(a) it shall notify bidders of the rounds for which it has determined to disregard the bids (and other bidding indications); and

(b) resume the award process from the start of the principal stage round after the round for which bids are not disregarded under sub-paragraph (a), or, where all bids are to be disregarded under that sub-paragraph, to rerun the award process from the start of the first principal stage round.

(3) Subject to regulation 114, where a bidder is excluded from the award process under regulation 112 during the assignment stage—

(a) OFCOM shall determine whether it should disregard the bids (and other bidding indications) made in any principal stage round prior to the exclusion in accordance with paragraphs (1) and (2); and

(b) all of the assignment stage bids made by the bidder shall not be taken into consideration for the purposes of determining—

(i) the winning assignment stage bids under regulations 75 and 81;

(ii) the additional price payable by a winning bidder under regulations 76 and 84.

Exclusion of the pre-existing licence holder

114.—(1) Where the pre-existing licence holder applies for a replacement licence and is excluded from the award process under regulation 26(8) or 112 during the principal or assignment stage, OFCOM shall disregard the bids (and other bidding indications made on its principal stage form) made in all principal and assignment stage rounds and rerun the award process from the start of the first principal stage round.

(2) Where OFCOM reruns the award process from the start of the first principal stage round in accordance with paragraph (1) above, the pre-existing licence holder shall not participate in the principal stage or the assignment stage of that award process and shall be deemed to have not applied for a replacement licence in that award process.

(3) Where a pre-existing licence holder has applied for a replacement licence but is excluded from the award process under these Regulations, OFCOM will notify the other bidders of that fact.

Events

115.—(1) The events referred to in regulation 112 are the events in paragraph (2) and the events in paragraph (3).

(2) Events in relation to an applicant or bidder are—

(a) the submission to OFCOM of any information in connection with the award process which is false or misleading;

(b) any member of that applicant’s or bidder’s bidder group colluding or attempting to collude with another person to distort the outcome of the award process;

(c) any member of that applicant’s or bidder’s bidder group acting in a way which is likely to distort the outcome of the award process;

(d) any member of that applicant’s or bidder’s bidder group, or any person to whom confidential information has been disclosed, disclosing, or attempting to disclose, or inciting another person to disclose, any confidential information, whether directly or indirectly, to any person, except where the disclosure is—

(i) to OFCOM;

(ii) to a member of that applicant’s or bidder’s bidder group;

(iii) to a provider of finance for the purpose of raising finance for a bid; or

(iv) to a person for the purpose of enabling that person to decide whether to participate as a member of the applicant’s or bidder’s bidder group;

(e) any member of that applicant’s or bidder’s bidder group obtaining or attempting to obtain confidential information relating to another applicant or bidder;

(f) any member of that applicant’s or bidder’s bidder group receiving or attempting to receive services in relation to the award process from any person who has provided or is providing services to OFCOM in relation to the award process;

(g) any person who is a member or a director or employee of a member of that applicant’s or bidder’s bidder group and also a director or employee of a member of another bidder group—

(i) taking part in the preparation of both bidder groups for participation in the award process; or

(ii) receiving confidential information relating to both bidder groups;

(h) a member of that applicant’s or bidder’s bidder group is or becomes a member of another applicant’s or bidder’s bidder group; and

(i) a change occurring in the membership of that applicant’s or bidder’s bidder group from that notified to OFCOM in its application except as a result of—

(i) a person ceasing to be a member of that bidder group;

(ii) a person joining that bidder group under the procedure in regulation 10(3); or

(iii) a person becoming an associate through merger or acquisition activity provided that such activity is not for a purpose related to the award process.

(3) Events in relation to a bidder (but not an applicant) are—

(a) a change, after OFCOM has recorded that bidder’s existing spectrum holdings under regulation 19, to the existing spectrum holdings of a bidder or, in relation to the bidder, any person referred to in regulation 4(3)(a)(iii) except insofar as the change is a divestment of a part of or the whole of the existing spectrum holdings; and

(b) any person which has existing spectrum holdings which was not at the time OFCOM recorded the bidder’s existing spectrum holdings under regulation 19 a person referred to in regulation 4(3)(a)(iii) becoming such a person during the award process.