2008 No. 3191
The Wireless Telegraphy (Licence Award) (Manchester) Regulations 2008
Made
Coming into force
The Office of Communications (“OFCOM”) make the following Regulations in exercise of the powers conferred on OFCOM by sections 14(1), (2), (3), (4), (6) and (7) and section 122(7) of the Wireless Telegraphy Act 20061 (“the 2006 Act”).
Before making these Regulations OFCOM have given notice of their proposal to do so in accordance with section 122(4)(a) of the 2006 Act, published notice of their proposal in accordance with section 122(4)(b) of the 2006 Act and have considered the representations made to them before the time specified in that notice in accordance with section 122(4)(c) of the 2006 Act.
PART 1INTRODUCTORY
Citation, commencement and extent1
1
These Regulations may be cited as the Wireless Telegraphy (Licence Award) (Manchester) Regulations 2008 and shall come into force on 5th January 2009.
2
These Regulations shall not extend to the Channel Islands or to the Isle of Man.
Interpretation2
In these Regulations—
“applicant” means a body corporate making an application for the licence;
“associate” means, in relation to an applicant or a bidder, a person who has a material interest in that applicant or bidder;
“auction stage” has the meaning given in regulation 15(1);
“authorised person” means a person specified by an applicant in its application as authorised to bind that applicant for all purposes relating to the award process;
“bid form” has the meaning given in regulation 16(1);
“bid total” has the meaning given in regulation 18(1);
“bidder” means an applicant which has qualified to bid in the award process and which has not withdrawn from the award process on or before the last day for withdrawal;
“bidder group” means, in relation to an applicant or bidder—
- a
that applicant or bidder;
- b
each associate of that applicant or bidder; and
- c
each person in respect of whom the applicant or bidder has delivered to OFCOM a completed document in the form set out in Schedule 2;
- a
“confidential information” means, in relation to any applicant or bidder, any information which is not in the public domain and which if it were made public, or disclosed to another applicant (or potential applicant) or bidder or a member of their respective bidder groups, would be likely to affect decisions that such other applicant (or potential applicant) or bidder may make in relation to the award process;
“electronic auction system” means the system established by OFCOM for bidders to participate in the award process;
“final round” shall be construed in accordance with regulation 18(3)(a);
“initial deposit” shall be construed in accordance with regulation 4(3)(b);
“last day for withdrawal” has the meaning given in regulation 9(1);
“licence” means the wireless telegraphy licence to be granted pursuant to these Regulations to establish or use a wireless telegraphy station or install or use wireless telegraphy apparatus at the site in Winter Hill, Bolton, Manchester which has the Ordnance Survey national grid reference SD660144 at the frequencies 758 to 766 megahertz;
“material interest” means, whether held directly or indirectly—
- a
any interest (construed in accordance with sections 820 to 825 of the Companies Act 20062) in—
- i
any share which carries, or any shares which together carry, more than twenty five per cent. of the votes entitled to be cast at a general meeting of the applicant or bidder; or
- ii
any share or shares in the case of which the consent of the holder of that share or those shares is required for the conduct of any business of the applicant or bidder; or
- i
- b
the right to appoint or remove a majority of the applicant’s or bidder’s board of directors;
- a
“OFCOM” means the Office of Communications;
“OFCOM’s bank account” means the bank account nominated by OFCOM for the purposes of the award process, details of which are published on their internet website;
“pounds” means pounds sterling;
“round extension” has the meaning given in regulation 23(2);
“round price” shall be construed in accordance with regulation 20;
“valid bid” has the meaning given in regulation 22(1); and
“winning bid” shall be construed in accordance with regulation 30.
PART 2APPLICATION STAGE
Applications for the grant of the licence3
Applications for the grant of the licence shall only be made in accordance with the procedure set out in these Regulations.
Application4
1
Only a body corporate may apply to OFCOM for the licence.
2
A body corporate may only make one application.
3
To apply for the licence, a body corporate must—
a
on the day specified by OFCOM for receipt of applications, deliver to OFCOM at Riverside House, 2a Southwark Bridge Road, London SE1 9HA within the times on that day specified by OFCOM a sealed envelope containing—
i
a document containing the application information required by, and the warranty set out in, Schedule 1 completed in respect of the applicant and signed on its behalf by two authorised persons;
ii
for each person, not being an associate of the applicant, which the applicant wishes to join its bidder group, a document in the form set out in Schedule 2 which has been—
aa
completed by the applicant and signed on its behalf by two authorised persons; and
bb
completed by and signed by or on behalf of the person in respect of whom that document is completed; and
b
by the deadline specified by OFCOM, pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the applicant, an initial deposit of ten thousand pounds.
4
OFCOM shall publish the day, times and deadline on their internet website.
PART 3QUALIFICATION STAGE
Assessment of bidder groups5
1
OFCOM shall give notice to each applicant of—
a
the name of each other applicant and the names of their associates; and
2
On receipt of that notice, each applicant must examine the names of the other applicants and their associates and determine whether any member of its bidder group is also an associate of another applicant or is also an applicant.
3
Where an applicant determines that a member of its bidder group is also an associate of another applicant or is also an applicant, it must notify the other applicant and OFCOM of that fact by the deadline specified by OFCOM, and OFCOM shall specify a further deadline by when each applicant concerned must—
a
notify OFCOM of any change in circumstances the effect of which is that no member of its bidder group is an associate of another applicant or is an applicant; and
b
where changes have occurred to its bidder group, provide OFCOM with versions of the documents provided under regulation 4(3)(a)(i) which comply with those provisions in the changed circumstances.
4
Where an applicant determines that no member of its bidder group is an associate of another applicant or is an applicant it must notify OFCOM of that fact by the deadline specified by OFCOM.
5
If it appears to OFCOM from any application that a member of one bidder group is also a member of another bidder group, OFCOM shall give notice to each of the applicants concerned of that fact and specify the deadline by when each applicant concerned must—
a
notify OFCOM of any change in circumstances the effect of which is that no member of its bidder group is also a member of another bidder group; and
b
where changes have occurred to its bidder group provide OFCOM with versions of the documents provided under regulation 4(3)(a)(i) which comply with those provisions in the changed circumstances.
Subsequent changes to bidder groups6
1
An applicant or a bidder may change its bidder group after the recording by OFCOM of the members of each applicant’s bidder group but, in relation to the award process, the applicant shall be subject to regulation 7(2) and regulation 36 if they apply to any such change.
2
Where the change involves the addition or removal of an associate, the applicant or bidder must notify OFCOM of the change and submit a version of the documents provided under regulation 4(3)(a)(i) which comply with those provisions in the changed circumstances.
3
To add a person who is not an associate of the applicant or bidder to its bidder group, the applicant or bidder must deliver to OFCOM a document in the form set out in Schedule 2 completed by the applicant or bidder and signed on its behalf by two authorised persons and completed by and signed by or on behalf of the person in respect of whom that document is completed.
Determination of applicants which are qualified to bid7
1
OFCOM shall determine whether each applicant which has submitted an application in accordance with regulation 4 is qualified to bid in the award process.
2
An applicant shall not be qualified to bid in the award process if a member of its bidder group is also a member of another applicant’s bidder group.
3
In making their determination under paragraph (1)OFCOM shall take into account whether—
a
the grant of the licence to the applicant would be prejudicial to the interests of national security;
b
the applicant is a fit and proper person to hold the licence having regard to the probity of—
i
the applicant;
ii
each member of the applicant’s bidder group; and
iii
each director of each member of the applicant’s bidder group;
c
any of the information submitted to OFCOM by the applicant in connection with the award process is false or misleading;
d
any member of the applicant’s bidder group has colluded or attempted to collude, or is colluding or attempting to collude, with another person to distort the outcome of the award process;
e
any member of the applicant’s bidder group has acted or is acting in a way which is likely to distort the outcome of the award process;
f
any member of the applicant’s bidder group, or any person to whom confidential information has been disclosed, has disclosed, or is disclosing or attempting to disclose, or has incited or is 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 the applicant’s bidder group;
iii
to a provider of finance for the purpose of raising finance for the applicant’s application; or
iv
to a person for the purpose of enabling that person to decide whether to participate as a member of the applicant’s bidder group;
g
any member of the applicant’s bidder group has obtained, or is obtaining or attempting to obtain confidential information relating to another applicant;
h
any member of the applicant’s bidder group is receiving or is 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; and
i
any person who is a member or a director or employee of a member of the applicant’s bidder group and is also a director or employee of a member of another bidder group is—
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.
4
Applicants must, if requested to do so by OFCOM, provide by a deadline specified by OFCOM any information or documentation which OFCOM reasonably require to make their determination.
5
If an applicant does not provide such information or documentation by the deadline specified by OFCOM, OFCOM shall also take that fact into account in making their determination.
6
Where OFCOM determine that an applicant is not qualified to bid in the award process, that applicant’s initial deposit shall not be forfeited for that reason.
Publication of determination8
1
OFCOM shall notify each applicant of their determination under regulation 7(1).
2
OFCOM shall also notify each applicant qualified to bid of the name of each other applicant which is so qualified and shall publish the names of all applicants which are qualified to bid on OFCOM’s internet website.
Withdrawal of an application9
1
OFCOM shall notify each applicant qualified to bid of the last day for withdrawal from the award process (“last day for withdrawal”) and shall publish the last day for withdrawal on OFCOM’s internet website.
2
If, on or before the last day for withdrawal, OFCOM receive notice of an applicant’s intention to withdraw its application, signed by two authorised persons of that applicant, the application shall be withdrawn and the applicant shall be excluded from the award process and OFCOM shall notify all other applicants of the withdrawal.
3
Where an applicant withdraws its application in accordance with paragraph (2)—
a
that applicant shall not be re-admitted to the award process; and
b
that applicant’s initial deposit shall not be forfeited for that reason.
Determination of number of bidders10
1
After the last day for withdrawal, OFCOM shall determine the number of bidders.
2
Where there are no bidders, OFCOM shall complete the award process by refunding to applicants which were not qualified, or withdrew in accordance with regulation 9, the initial deposits (where such deposits have not been forfeited under regulation 36) but not any interest which has accrued on the deposits.
3
Where there is only one bidder, OFCOM shall grant the licence in accordance with the procedure set out in Part 4 of these Regulations.
4
Where the number of bidders is more than one, OFCOM shall grant the licence in accordance with the procedure set out in Part 5 of these Regulations.
5
OFCOM shall publish the names of the bidders on OFCOM’s internet website together with a statement of whether OFCOM will proceed to grant the licence in accordance with Part 4 or Part 5 (as the case may be) of these Regulations.
PART 4PROCEDURE WHERE THERE IS ONLY ONE BIDDER
Payment of licence fee11
1
Where there is only one bidder and where the initial deposit of that bidder has not been forfeited in accordance with regulation 36, OFCOM shall grant the bidder the licence.
2
Where there is only one bidder and where the initial deposit has been forfeited in accordance with regulation 36, OFCOM shall give notice to that bidder of the deadline by which that bidder must pay into OFCOM’s bank account with accompanying information that identifies the bidder, the licence fee.
3
The licence fee shall be ten thousand pounds.
Failure to pay licence fee12
If the bidder fails to make payment in accordance with regulation 11(2), it shall not be granted the licence.
Grant of licence13
Where OFCOM receive payment from a bidder to which regulation 11(2) applies in accordance with that regulation, OFCOM shall grant the bidder the licence.
Completion of the award process14
After the grant of the licence, OFCOM shall complete the award process by–—
a
publishing on their internet website the name of the bidder to which the licence has been granted; and
b
refunding to applicants which were not qualified, or withdrew in accordance with regulation 9, the initial deposits (where such deposits have not been forfeited under regulation 36) but not any interest which has accrued on the deposits.
PART 5PROCEDURE WHERE THERE IS MORE THAN ONE BIDDER
CHAPTER 1Auction stage
Auction stage15
1
Where there is more than one bidder, the process for the award of the licence shall consist of the procedure set out in this Part (“auction stage”).
2
A bid made during the auction stage shall be a bid for the licence.
3
During the auction stage there shall be one or more rounds for the making of bids.
CHAPTER 2Bids
Bid requirements16
1
In order to make a bid a bidder must, on a form provided to the bidder by OFCOM (“bid form”), specify the amount that it is willing to pay for the licence.
2
The amount of the bid shall be determined by the bidder, subject to the restrictions set out in regulation 21.
3
A bidder must not submit more than one bid in any one round.
Requirement for a valid bid in the first round17
1
Any bidder which does not submit a valid bid in the first round shall be excluded from the award process and shall not receive a refund of its initial deposit nor any sum that the bidder has paid as a deposit under regulation 29, which shall (where not already forfeited under regulation 36) be forfeited.
2
Where there are no valid bids in the first round, there shall be no subsequent rounds and there shall be no winning bidder.
Number of rounds18
1
After each round, OFCOM shall determine the total number of valid bids submitted at an amount equal to the round price for that round (“bid total”).
2
Where the bid total is more than one there shall be another round.
3
Where the bid total is one or zero or where there are no valid bids—
a
that round shall be the final round; and
b
OFCOM shall determine the winning bid and the licence fee in accordance with regulation 30.
Participation in subsequent rounds19
Where there is another round in accordance with regulation 18(2), a bidder may make a bid in that round only if it made a valid bid in the previous round at an amount equal to the round price.
Determination of round prices for rounds20
1
In the first round, the round price shall be fifteen thousand pounds.
2
3
The round price shall be higher than the round price in the previous round.
4
The round price shall not be more than twice the round price in the previous round.
Amount of bids21
1
A bid made during the first round shall be at an amount in whole pounds that is—
a
at least ten thousand pounds; and
b
not more than the amount of the round price for the first round.
2
A bid made during a subsequent round shall be at an amount in whole pounds that is—
a
more than the amount of the round price for the preceding round; and
b
not more than the amount of the round price for that round.
Valid bids22
1
A bid shall only be taken into consideration for the purposes of determining—
a
the bid total in accordance with regulation 18(1);
b
the winning bid in accordance with regulation 30(2); and
c
the licence fee payable by the winning bidder in accordance with regulation 30(5)
if it satisfies the conditions set out in paragraph (2) (“valid bid”).
2
The conditions are that—
a
the bid is made on a bid form that has been completed in accordance with regulation 16(1);
b
the bid is submitted in accordance with the restriction set out in regulation 16(3);
c
the bidder complies with regulations 19 and 21;
d
e
if regulation 26 applies, the bid is not rejected in accordance with regulation 26(3).
CHAPTER 3Procedure for rounds
Notice to bidders23
1
Before the start of a round, OFCOM shall notify each bidder of—
a
the day on which, and the times on that day during which, subject to paragraph (2), the round will be held; and
b
the round price for that round.
2
The time notified by OFCOM under paragraph (1)(a) as the end of the round may be treated by a bidder in respect of—
a
no more than two rounds; and
b
for each round in respect of which paragraph (3) applies to the bidder, a further round,
3
This paragraph applies to a bidder where—
a
in respect of a previous round, the bidder treated the end of that round as extended by thirty minutes in accordance with paragraph (2);
b
the bidder submitted its completed bid form for that round so that it was received by OFCOM by the end of the round so extended; and
c
OFCOM have notified the bidder that they are satisfied that, in respect of that round, circumstances existed which were beyond the bidder’s control which had the effect that the bidder could not have submitted its bid form so that it was received by OFCOM by the end of the round without such an extension.
4
Where there is a round extension in accordance with paragraph (2), OFCOM shall notify bidders when the round has been extended and when it has been concluded.
Submission of bid form to OFCOM24
1
Except as provided for in regulation 25, a bidder must submit the completed bid form to OFCOM by using the electronic auction system.
2
The completed bid form must be received by OFCOM by the time notified by OFCOM under regulation 23(1)(a) as the end of that round.
Alternative method for submission of bid form25
1
Where OFCOM are satisfied that a bidder is unable to submit a bid form by using the electronic auction system because of technical failure (or an event or circumstance with similar effect on the bidder’s ability to use the electronic auction system), OFCOM shall notify the bidder of an alternative method of submitting the bid form and any requirements relating to the authentication of communications made by means of the alternative method.
2
The bidder must submit the bid form by means of the alternative method and must comply with any requirements which have been notified to it under paragraph (1) relating to the authentication of communications.
Incomplete or defective bid forms26
1
Where, due to the manner of completion, a bid form is incomplete or defective but OFCOM believe that they can ascertain the bidder’s intention in relation to the making of the bid, OFCOM shall ask the bidder to confirm in a notice to OFCOM by a specified deadline that OFCOM have correctly ascertained the bidder’s intention in relation to the making of the bid.
2
Where the bidder confirms in a notice given to OFCOM by the specified deadline which is signed by two authorised persons of that bidder that OFCOM have correctly ascertained the bidder’s intention, the bid form in its entirety shall be accepted by OFCOM on that basis.
3
Where the bidder does not give such confirmation, the bid form in its entirety shall be rejected by OFCOM and the bid submitted on the bid form shall not be a valid bid.
Notification that bid is not valid27
Where a bidder submits a bid that is not a valid bid during a round OFCOM shall, after the end of that round, notify the bidder of that fact and shall give the reasons why the bid is not a valid bid.
Release of information on bids28
After the end of a round and before the start of a subsequent round, OFCOM shall notify each bidder of the number of bidders in that round that made—
a
a valid bid at the round price for that round; and
b
a valid bid at an amount less than the round price for that round.
Further deposit for subsequent rounds29
1
Where, in respect of a bid, the amount specified by a bidder is greater than the total amount that the bidder has on deposit OFCOM may, having regard to the desirability of securing an efficient outcome of the auction stage, subsequently notify the bidder that the bidder is required to pay a further sum in pounds as a deposit.
2
The further sum shall be an amount such that the total amount that the bidder has on deposit is not less than the amount of the highest valid bid that the bidder made before OFCOM gave notice to the bidder under paragraph (1).
3
Any such sum shall be paid into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the bidder, by a deadline specified by OFCOM.
4
Where a bidder does not satisfy the requirements set out in paragraph (3), OFCOM shall notify the bidder of that fact, and following notice being given under this paragraph the bidder shall not submit a bid in any subsequent round.
CHAPTER 4Determination of winning bid, grant of licence and completion of award process
Determination of the winning bid and the licence fee30
1
Following the final round, OFCOM shall determine the winning bid and the identity of the winning bidder.
2
Subject to paragraph (3), the winning bid shall be the highest valid bid made in the auction stage.
3
Where there is more than one valid bid of equal highest value, OFCOM shall employ a method of random selection amongst those bids to determine which shall be the winning bid.
4
The winning bidder shall be the bidder which submitted the winning bid.
5
Subject to paragraph (6), the licence fee shall be the amount of the highest valid bid in the auction stage that was not made by the winning bidder.
6
Where there is only one valid bid in the first round, the licence fee shall be ten thousand pounds.
Notification of results of the auction stage31
OFCOM shall notify the winning bidder of the winning bid and the licence fee.
Procedure where amount of winning bidder’s deposit is less than the licence fee32
1
Where the amount of the winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 29, but not including any sum forfeited under regulation 36) is an amount that is less than the amount of the licence fee calculated in accordance with regulation 30—
a
OFCOM shall notify the bidder of a deadline by when the bidder must comply with sub-paragraph (b); and
b
the winning bidder must by that deadline pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the winning bidder, a sum in pounds calculated in accordance with paragraph (2).
2
The sum which the bidder must pay to OFCOM shall be the difference between the amount of the licence fee calculated in accordance with regulation 30 and the amount of the winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 29, but not including any sum forfeited under regulation 36).
3
Where the winning bidder has satisfied the requirement set out in paragraph (1)(b), OFCOM shall grant the winning bidder the licence.
4
Where the winning bidder has not satisfied the requirement set out in paragraph (1)(b), that bidder—
a
shall not be entitled to the grant of the licence under these Regulations; and
b
shall not receive a refund of its initial deposit and any sum paid as a deposit under regulation 29, which shall (where not already forfeited under regulation 36) be forfeited.
Procedure where amount of winning bidder’s deposit is greater than or equal to the licence fee33
1
Where the amount of the winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 29, but not including any sum forfeited under regulation 36) is greater than or equal to the amount of the licence fee calculated in accordance with regulation 30, OFCOM shall—
a
grant the winning bidder the licence; and
b
refund to the winning bidder a sum in pounds calculated in accordance with paragraph (2).
2
The sum which OFCOM shall refund to the winning bidder shall be the difference (if any) between the amount of the winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 29, but not including any sum forfeited under regulation 36) and the amount of the licence fee calculated in accordance with regulation 30, but not any interest which has accrued on the deposit.
Licences not awarded34
1
Where OFCOM do not grant the licence to the winning bidder because that bidder has failed to make payment in accordance with regulation 32(1)(b), OFCOM shall select the appropriate bidder (from among the remaining bidders) which should next be offered the licence in accordance with the order of precedence set out in paragraph (3) and OFCOM shall follow paragraphs (5) and (6) of regulation 30 but having regard only to valid bids made by the remaining bidders to determine the licence fee and the procedures in regulation 31 and either regulation 32 or 33 (as the case may be) in order to receive payment of the licence fee and grant the licence.
2
Should that bidder fail to make payment, OFCOM shall follow the same procedure to offer the licence to the next bidder in the order of precedence until the licence is awarded or the list of remaining bidders is exhausted.
3
The order of precedence amongst the list of remaining bidders shall be determined by the amount of the highest valid bid made by each of those bidders such that higher amounts shall prevail over lower amounts and, where the highest valid bids of any two or more bidders are for equal amounts, OFCOM shall employ a method of random selection to determine the precedence among those bidders.
Completion of the award process35
After the grant of the licence, OFCOM shall complete the award process by—
a
publishing on their internet website details of all valid bids made by each bidder, the name of the person to whom the licence was granted, and the amount of the licence fee paid; and
b
refunding to—
i
applicants which were not qualified or which withdrew in accordance with regulation 9; and
ii
bidders which were not the winning bidder;
the initial deposit and any sum paid as a deposit under regulation 29 (where such deposits have not been forfeited under regulation 36) but not any interest which has accrued on the deposits.
PART 6ACTIVITY RULES
Forfeit of deposit and exclusion from award process36
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 37 are occurring (or have occurred) and that the occurrence would materially affect the outcome of the award process—
a
the initial deposit and any sum or sums paid as a deposit under regulation 29 shall be forfeited by, and not refunded to, the applicant or bidder concerned; and
b
that applicant or bidder may also be excluded by OFCOM from the award process by OFCOM giving that applicant or bidder notice in writing.
Events37
The events referred to in regulation 36, 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;
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 6(3);
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.
PART 7MISCELLANEOUS
General power of exclusion38
OFCOM may, at any time, notify any applicant or bidder of its exclusion from the award process if, in their opinion, the grant of the licence to that applicant or bidder would be prejudicial to the interests of national security or the applicant or bidder is not a fit and proper person to hold the licence.
Notification to OFCOM39
If, in accordance with any provision of these Regulations, an applicant or bidder is required, or wishes, to notify OFCOM of any fact or circumstance, it must do so by notice in writing which is marked for the attention of the OFCOM personnel who are specified by OFCOM for that purpose on OFCOM’s internet website and must deliver that notice to OFCOM—
a
by electronic mail to an electronic mail address dedicated to the award process which is published by OFCOM on their internet website;
b
by personal delivery to Riverside House, 2a Southwark Bridge Road, London, SE1 9HA; or
c
by fax to a number dedicated to the award process which is published by OFCOM on their internet website.
Changes to timing or location40
1
Paragraph (2) applies where OFCOM determine that it is impracticable for any reason—
a
for any document which is to be delivered to OFCOM under these Regulations to be delivered at the place specified or by the deadline specified under these Regulations; or
b
for any action which is required to be undertaken in accordance with these Regulations to be completed by the deadline specified.
2
Where this paragraph applies, OFCOM shall take all reasonable steps to notify the applicants or bidders (as the case may be) that—
a
delivery must be made on a different day or within different times on that day or at a different place;
b
the action must be completed on a different day or by a different deadline.
Changes to round times and use of electronic auction system41
1
Where a time for the start of a round has been notified to bidders and OFCOM determine that it is impracticable for any reason to start the round at that time, OFCOM shall take all reasonable steps to notify bidders of a revised time for the start of the round.
2
Where a time for the end of a round has been notified to bidders and OFCOM determine that it is impracticable for any reason for the round to end at that time, OFCOM shall take all reasonable steps to notify bidders of a revised time for the end of the round.
3
Where OFCOM determine that it is impracticable for any reason to use the electronic auction system for any of the purposes specified in Part 5 of these Regulations, OFCOM shall take all reasonable steps to notify bidders of an alternative method of participating in the award process and any requirements relating to the authentication of communications made by means of the alternative method.
4
Bidders must use the alternative method of participating in the award process in accordance with a notification under paragraph (3).
Rerunning rounds42
1
Where a round is in progress and OFCOM determine that it is not possible to continue the round because of technical failure (or an event or circumstance with similar effect on the continuation of the round), OFCOM shall—
a
notify bidders of their determination;
b
disregard the bids made in that round;
c
resume the award procedure from the end of the previous round (or, if there was no previous round, from the start of the first round).
2
Where OFCOM determine that it is not possible to continue the award process in accordance with the provisions of Part 5 of these Regulations because of technical failure (or an event or circumstance with similar effect on the continuation of the award process), OFCOM may, in order to secure a fair and efficient outcome—
a
disregard bids made in one or more rounds; and
b
resume the award process from the end of the latest round for which bids are not disregarded under sub-paragraph (a), or, where all bids are to be disregarded under that sub-paragraph, to resume the award process from the start of the first round.
3
OFCOM shall notify bidders of their determination under paragraph (2).
Refunds43
OFCOM may, in such cases as they think fit, refund, in whole or in part, sums which have been paid to them in accordance with any provision of these Regulations.
SCHEDULE 1APPLICATION FORM AND WARRANTY
SCHEDULE 2DOCUMENT FOR MEMBER OF APPLICANT’S BIDDER GROUP WHO IS NOT AN ASSOCIATE
(This note is not part of the Regulations)