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The Public Contracts (Scotland) Regulations 2012

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This is the original version (as it was originally made).

Enforcement of obligations

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47.—(1) The obligation on—

(a)a contracting authority to comply with the provisions of these Regulations, other than regulations 14(2), 30(9), 32(11), 40 and 41(1), and with any enforceable EU obligation in respect of a contract, framework agreement, dynamic purchasing system or design contest (other than one excluded from the application of these Regulations by regulation 6, 8 or 33); and

(b)a concessionaire to comply with the provisions of regulation 37(3),

is a duty owed to an economic operator.

(2) Subject to paragraph (3), the duty owed to an economic operator in accordance with paragraph (1) is also owed to a GPA economic operator, except in relation to—

(a)a Part B services contract;

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

(c)regulation 34;

(d)regulation 36;

(e)regulation 37(1); or

(f)regulation 37(2).

(3) The duty owed to a GPA economic operator referred to in paragraph (2) is only owed by the Secretary of State for Defence in relation to public supply contracts for the purchase or hire of goods specified in Schedule 5.

(4) Notwithstanding regulation 4, references to an “economic operator” in this Part—

(a)where the duty owed under paragraph (1) is the obligation on a concessionaire to comply with regulation 37(3), include any person—

(i)who sought, who seeks or would have wished, to be the person to whom a contract to which regulation 37(3) applies is awarded; and

(ii)who is a national of and established in a relevant State; and

(b)except in paragraph (1) of this regulation, include a reference to a GPA economic operator.

(5) A breach of the duty owed in accordance with paragraph (1) or (2) is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings must be brought in the Sheriff Court or the Court of Session.

(6) Proceedings under this regulation may not be brought unless—

(a)the economic operator bringing the proceedings has informed the contracting authority or concessionaire, as the case may be, of—

(i)the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2); and

(ii)of its intention to bring proceedings under this Part in respect of that breach or apprehended breach; and

(b)the proceedings are brought in accordance with paragraph (7).

(7) For the purpose of paragraph (6)(b), proceedings must be brought—

(a)in the case of proceedings seeking an ineffectiveness order (as defined in regulation 49)—

(i)where paragraph (8) applies, within 30 days from the relevant date referred to in that paragraph; or

(ii)in any other case, within 6 months from the date of the contract being entered into or the date of conclusion of the framework agreement; and

(b)in any other case, within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen unless the Court considers that there is a good reason for extending the period within which proceedings may be brought, in which case the Court may extend that period up to a maximum of 3 months from that date.

(8) For the purpose of paragraph (7)(a)(i), this paragraph applies where—

(a)the contracting authority has sent a contract award notice to the Official Journal in accordance with regulation 31 (contract award notice), including reasons for its decision to enter into the contract or conclude the framework agreement without prior publication of a contract notice, in which case the relevant date is the date of publication of the notice in the Official Journal; or

(b)the contracting authority has by notice in writing informed all tenderers concerned and all candidates concerned (if any) of its decision in relation to the award of the contract or the conclusion of the framework agreement, and the notice includes the information referred to in regulation 32(2)(d), in which case the relevant date is the date of sending of the notice.

(9) Except in the case of a contract or framework agreement to which regulation 6 applies, and without prejudice to the application of any relevant standstill period, where proceedings under this Part are served on a contracting authority or concessionaire in relation to a contract that has not been entered into or a framework agreement that has not been concluded, the contracting authority must not enter into the contract or conclude the framework agreement unless—

(a)the proceedings are determined, discontinued or disposed of; or

(b)the Court, by interim order, brings to an end the prohibition.

(10) In this regulation—

“GPA economic operator” means a person from a GPA State who sought, who seeks, or would have wished, to be the person to whom the contract is awarded;

“GPA State” means any country other than a relevant State which, at the relevant time is a signatory to the GPA and has agreed with the European Union that the GPA applies to a contract of the type to be awarded(1); and

“relevant time” means the date on which the contracting authority would have sent a contract notice in respect of the contract to the Official Journal if it had been required by these Regulations to do so.

(1)

Information on the detailed application of the GPA under bilateral agreements between the EU and other signatories is maintained in the Annexes and general notes in Appendix 1 to the GPA. Access to this information is available through the World Trade Organisation website at www.wto.org.

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