The Public Contracts (Scotland) Regulations 2012

Design contests

33.—(1) A contracting authority which organises a design contest—

(a) must establish the rules for that design contest in accordance with the provisions of this regulation; and

(b) must not limit the admission of any economic operator to the design contest by reference to the territory or part of the territory of a relevant State.

(2) This regulation applies to a design contest if it is organised as part of a procedure leading to the award of a public services contract whose estimated value (net of value added tax and including the value of any prizes or payments) is not less than the relevant threshold described in paragraphs (4) and (5).

(3) This regulation applies to a design contest whether or not it is organised as part of a procedure leading to the award of a public services contract if the aggregate value of the prizes or payments for the contest, including the estimated value (net of value added tax) of the contract which might subsequently be awarded in accordance with regulation 14(1)(c) (provided that the contracting authority does not exclude such an award), is not less than the relevant threshold described in paragraphs (4) and (5).

(4) Subject to paragraph (5), the relevant threshold for the purposes of paragraphs (2) and (3) is—

(a) the amount set out in Article 67(1)(a) where offers are sought by a Schedule 1 entity; or

(b) the amount set out in Article 67(1)(b) where offers are sought by any other contracting authority.

(5) For the purposes of paragraphs (2) and (3), the relevant threshold is the amount set out in Article 67(1)(c) in the case of a public services contract which is—

(a) for telecommunications services specified under CPV references 64221000-1, 64227000-3, 64228000-0, 64228100-1 and 64228200-2 within category 5 of Part A of Schedule 3;

(b) for research and development services specified in category 8 of Part A of Schedule 3; or

(c) a Part B services contract.

(6) This regulation does not apply to a design contest—

(a) where the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts (Scotland) Regulations 2012 and that contract is for the purposes of carrying out an activity specified in any Part of Schedule 1 to those Regulations in which the utility is specified;

(b) where the principal purpose is to permit the contracting authority to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services;

(c) which is classified as secret or where it must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom requires it;

(d) where different rules govern the procedures of the design contest and it is to be entered into in accordance with—

(i) an international agreement to which the United Kingdom and a State which is not a relevant State are parties and it relates to a design contest intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops; or

(iii) the design contest procedures of an organisation of which only States are members (an “international organisation”) or of which only States or international organisations are members; or

(e) which is otherwise excluded from the scope of these Regulations.

(7) The contracting authority must publicise its intention to hold a design contest by sending to the Official Journal a notice in the form of the design contest notice in Annex XII to Commission Regulation (EC) No 1564/2005(1) and containing the information therein specified.

(8) The contracting authority must make the rules of the design contest available to economic operators which wish to participate in the contest.

(9) Regulations 28(2) and 29 apply to design contests as they apply to the seeking of offers in relation to a proposed public contract.

(10) Regulation 42(1)(b) to (8) applies to notices relating to design contests as they apply to notices in relation to a proposed public contract.

(11) Regulation 44(1), (2) and (4) applies to all communications relating to design contests as they apply to a proposed public contract.

(12) The contracting authority must ensure that the specified means of communication and of information storage enable—

(a) the integrity and confidentiality of information provided by those economic operators participating in the design contest to be maintained; and

(b) the jury to ascertain the contents of proposals only after the time limit for their submission has expired.

(13) Where the contracting authority requires that proposals are to be received by electronic means, it must ensure that—

(a) details of the equipment which is necessary for the electronic receipt of proposals, including encryption, are available to all economic operators which wish to participate in the design contest; and

(b) the equipment for the electronic receipt of proposals complies with the requirements of regulation 44(6).

(14) Where the contracting authority restricts the number of economic operators in the design contest, it must—

(a) establish clear and non-discriminatory criteria to select those economic operators;

(b) ensure that the number of economic operators selected is sufficient to ensure adequate competition; and

(c) by notice in writing as soon as reasonably practicable after restricting the number of economic operators, inform the affected economic operators that they have been excluded from the design contest.

(15) A contracting authority must ensure that—

(a) the members of the jury are all individuals who are independent of those economic operators participating in the design contest;

(b) where the economic operators are required to possess a particular professional qualification, that at least one third of the members of the jury also possess that qualification or an equivalent qualification;

(c) the proposals of the economic operators are submitted to the jury without any indication as to the authorship of each proposal;

(d) the jury makes its decisions or opinions independently and solely on the basis of the criteria specified in the notice referred to in paragraph (7);

(e) the jury is not informed of the authorship of any proposal until after it has reached its decision or opinion;

(f) the jury prepares minutes signed by its members in which it records—

(i) its ranking of the proposals based upon its assessment of each proposal’s merits; and

(ii) its observations or details of any issues upon which clarification is required in relation to each proposal; and

(g) the jury may invite the economic operators to answer any questions to clarify issues noted in the minutes referred to in sub-paragraph (f) and must record complete minutes of any such communications with economic operators.

(16) The contracting authority must, not later than 48 days after the date the jury makes its selection, publicise the results of the design contest by sending to the Official Journal a notice in the form of the notice of the results of a design contest in Annex XIII to Commission Regulation (EC) No 1564/2005 and including the information therein specified.

(17) The contracting authority must retain evidence of the date of dispatch to the Official Journal of each notice.

(18) Any of the information specified in the form of the notice referred to in paragraph (16) to be included in that notice may be omitted in a particular case where to publish such information—

(a) would impede law enforcement;

(b) would otherwise be contrary to the public interest;

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

(d) might prejudice fair competition between economic operators.

(1)

The annex to Commission Regulation (EC) No 1564/2005 was amended by Commission Regulation (EC) 1150/2009, OJ L 313, 29.11.2009, p.3.