PART IIIPROCEDURES LEADING TO THE AWARD OF A PUBLIC SUPPLY CONTRACT
Selection of contract award procedure10
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1
For the purposes of seeking offers in relation to a proposed public supply contract a contracting authority shall use the open procedure, the restricted procedure or the negotiated procedure and shall decide which of those procedures to use in accordance with the following paragraphs of this regulation.
2
A contracting authority may use the restricted procedure when to do so is justified by the circumstances, such as–
a
when the cost of using the open procedure would be disproportionate to the value of the goods to be purchased or hired under the contract;
b
the nature of the goods to be purchased or hired under the contract.
3
A contracting authority may use the negotiated procedure in the following circumstances–
a
subject to paragraph (4) below, in the event that the procedure leading to the award of a public supply contract by the contracting authority using the open or restricted procedure was discontinued–
i
because of irregular tenders, or
ii
following an evaluation made in accordance with regulation 11(6) or 12(4);
and without prejudice to the generality of the meaning of the words “irregular tenders” a tender may be considered irregular if the supplier fails to meet the requirements of, or the tender offers variations on the requirements specified in, the contract documents where this is not permitted under the terms of the invitation to tender, or the goods offered do not meet the technical specifications (within the meaning of regulation 8(1)) of the contracting authority;
b
subject to paragraph (4), below, in the absence of tenders in response to an invitation to tender by the contracting authority using the open or restricted procedure;
c
when the goods to be purchased or hired under the contract are to be manufactured purely for the purpose of research, experiment, study or development but not when the goods are to be purchased or hired to establish their commercial viability or to recover their research and development costs;
d
when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the goods to be purchased or hired under the contract may only be manufactured or supplied by a particular person;
e
when (but only if it is strictly necessary), for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits specified in regulations 11 and 12 if the open or restricted procedures are used cannot be met; and
f
subject to paragraph (5) below, when the goods to be purchased or hired under the contract are required by the contracting authority as a partial replacement for, or addition to, existing goods or an installation and when to obtain the goods from a person other than the person who supplied the existing goods or the installation would oblige the contracting authority to acquire goods having different technical characteristics which would result in–
i
incompatibility between the existing goods or the installation and the goods to be purchased or hired under the contract, or
ii
disproportionate technical difficulties in the operation and maintenance of the existing goods or the installation.
4
A contracting authority shall not use the negotiated procedure pursuant to paragraphs (3)(a) or (b) above unless the proposed terms of the contract are substantially unaltered from the proposed terms of the contract in relation to which offers were sought using the open or restricted procedure.
5
A contracting authority shall not use the negotiated procedure pursuant to paragraph (3)(f) above if the term of the proposed contract, or the term of that contract and of any other contract entered into for the same purpose, is more than three years unless there are reasons why it is unavoidable that this period should be exceeded.
6
In all other circumstances the contracting authority shall use the open procedure.
7
A contracting authority using the negotiated procedure pursuant to paragraph (3)(b) above shall submit a report recording the fact that it has done so to the Treasury for onward transmission to the Commission.
8
A contracting authority using the negotiated or restricted procedure shall prepare a record in relation to the contract justifying the use of the procedure applied and specifying–
a
the name and address of the contracting authority;
b
the value, quantity and type of the goods to be purchased or hired under the contract;
c
the number of persons who asked to be selected to tender for or to negotiate the contract;
d
the number of persons selected to tender for or to negotiate the contract;
e
the number of persons, if any, who, having sought to be selected to tender or to negotiate, were not so selected and the reasons for not selecting them; and
f
in the case of a contracting authority using the negotiated procedure, which of the circumstances specified in paragraph (3) above constituted the grounds for using that procedure.
9
If the Commission requests a report justifying the use of the negotiated or restricted procedure, the contracting authority shall send a written report containing the information specified in paragraph (8) above to the Treasury for onward transmission to the Commission.