The Public Contracts (Scotland) Regulations 2015

SECTION 4 Techniques and Instruments for Electronic and Aggregated Procurement

Framework Agreements

34.—(1) A contracting authority may conclude a framework agreement, provided that the authority applies the procedures provided for in these Regulations.

(2) The term of a framework agreement must not exceed 4 years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.

(3) A contract based on a framework agreement must be awarded in accordance with the procedures laid down in this regulation.

(4) The procedures referred to in paragraph (3) may be applied only between those contracting authorities clearly identified for that purpose in the call for competition or the invitation to confirm interest and those economic operators that are party to the framework agreement as concluded.

(5) A contract based on a framework agreement must under no circumstances entail substantial modifications to the terms laid down in that framework agreement, in particular in the case referred to in paragraph (6).

(6) Where a framework agreement is concluded with a single economic operator—

(a) a contract based on that agreement must be awarded within the limits laid down in the framework agreement; and

(b) for the award of such a contract, a contracting authority may consult in writing the economic operator which is party to the framework agreement, requesting it to supplement its tender as necessary.

(7) Where a framework agreement is concluded with more than one economic operator, that framework agreement must be performed in one of the following ways—

(a) following the terms and conditions of the framework agreement, without reopening competition, where it sets out—

(i) all the terms governing the provision of the works, supplies or services concerned; and

(ii) the objective conditions for determining which of the economic operators that are party to the framework agreement must perform those works, supplies or services (which conditions must be indicated in the procurement documents for the framework agreement);

(b) where the framework agreement sets out all the terms governing the provision of the works, supplies or services concerned—

(i) partly without reopening competition in accordance with sub-paragraph (a); and

(ii) partly through reopening competition amongst the economic operators which are party to the framework agreement,

where this possibility has been stipulated by the contracting authority in the procurement documents for the framework agreement; or

(c) where not all the terms governing the provision of the works, supplies or services are laid down in the framework agreement, through reopening competition amongst the economic operators which are parties to the framework agreement.

(8) For the purposes of paragraph (7)(b)—

(a) the choice of whether specific works, supplies or services shall be acquired following reopening of competition or directly on the terms set out in the framework agreement must be made pursuant to objective criteria, which must be set out in the procurement documents for the framework agreement; and

(b) those procurement documents must also specify which terms may be subject to reopening of competition.

(9) The possibilities provided for in paragraph (7)(b) must also apply to any lot of a framework agreement for which all the terms governing the provision of the works, supplies or services concerned are set out in the framework agreement, regardless of whether all the terms governing the provision of the works, supplies or services concerned under other lots have been set out.

(10) The competition referred to in paragraph (7)(b) and (c) must be based on the same terms as applied for the award of the framework agreement and, where necessary, more precisely formulated terms and, where appropriate, other terms referred to in the procurement documents for the framework agreement, in accordance with the following procedure—

(a) for every contract to be awarded, a contracting authority must consult in writing the economic operators capable of performing the contract;

(b) a contracting authority must fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;

(c) a contracting authority must require tenders to be submitted in writing and must not open the tenders until the stipulated time limit for reply has expired; and

(d) a contracting authority must award each contract to the tenderer that has submitted the most economically advantageous tender on the basis of the award criteria set out in the procurement documents for the framework agreement.

Dynamic Purchasing Systems

35.—(1) A contracting authority may use a dynamic purchasing system for commonly used purchases the characteristics of which, as generally available on the market, meet their requirements.

(2) The dynamic purchasing system must—

(a) be operated as a completely electronic process; and

(b) throughout the period of validity of the system, be open to any economic operator that satisfies the selection criteria.

(3) The dynamic purchasing system may be divided into categories of works, supplies or services that are objectively defined on the basis of characteristics of the procurement to be undertaken under the category concerned.

(4) The characteristics referred to in paragraph (3) may include reference to either or both of—

(a) the maximum allowable size of the subsequent specific contracts; and

(b) a specific geographic area in which subsequent specific contracts will be performed.

(5) In order to procure under a dynamic purchasing system, a contracting authority must follow the restricted procedure, and accordingly the provisions of regulation 29 (restricted procedure) apply, subject to the following provisions of this regulation.

(6) A contracting authority must admit to a dynamic purchasing system all of the candidates satisfying the selection criteria and must not limit the number of candidates to be admitted whether under regulations 29(4) (restricted procedure) or 66 (reduction of the number of otherwise qualified candidates to be invited to participate) or otherwise.

(7) Where a contracting authority has divided the system into categories of works, supplies or services in accordance with paragraph (3), the authority must specify the applicable selection criteria for each category.

(8) The minimum time limit for receipt of requests to participate shall be 30 days from the date on which—

(a) the contract notice is sent; or

(b) where a prior information notice is used as a means of calling for competition, the invitation to confirm interest is sent.

(9) No further time limits for receipt of requests to participate shall apply once the invitation to tender for the first specific procurement under the dynamic purchasing system has been sent.

(10) The minimum time limit for receipt of tenders shall be 10 days from the date on which the invitation to tender is sent.

(11) All communications in the context of a dynamic purchasing system must be made only by electronic means in accordance with regulation 23(1) to (7) and (11) to (20) (Rules applicable to communication).

(12) For the purposes of awarding contracts under a dynamic purchasing system, a contracting authority must—

(a) publish a call for competition making it clear that a dynamic purchasing system is involved;

(b) indicate in the procurement documents at least the nature and estimated quantity of the purchases envisaged, as well as all the necessary information concerning the dynamic purchasing system, including how the system operates, the electronic equipment used and the technical connection arrangements and specifications;

(c) indicate in the procurement documents any division into categories of works, supplies or services and the characteristics defining them; and

(d) throughout the period of validity of the system, offer unrestricted and full direct access to the procurement documents in accordance with regulation 54 (electronic availability of procurement documents).

(13) A contracting authority must, throughout the period of validity of the dynamic purchasing system, give any economic operator the possibility of requesting to participate in the system under the conditions referred to in paragraphs (5) to (12).

(14) A contracting authority must finalise evaluation of such requests in accordance with the selection criteria within 10 working days following their receipt.

(15) The deadline referred to in paragraph (14) may be extended to a maximum of 15 working days in individual cases where justified, in particular, because of the need to examine additional documentation or otherwise to verify whether the selection criteria are met.

(16) Despite paragraphs (14) and (15), as long as the invitation to tender for the first specific procurement under the dynamic purchasing system has not been sent, a contracting authority may extend the evaluation period provided that no invitation to tender is issued during the extended evaluation period.

(17) Where a contracting authority intends to extend the evaluation period in accordance with paragraph (16), the authority must indicate in the procurement documents the length of the extended period that the authority intends to apply.

(18) A contracting authority must inform the economic operator concerned at the earliest possible opportunity of whether or not it has been admitted to the dynamic purchasing system.

(19) A contracting authority must invite all admitted participants to submit a tender for each specific procurement under the dynamic purchasing system, in accordance with regulation 55 (invitations to candidates).

(20) Where the dynamic purchasing system has been divided into categories of works, supplies or services, a contracting authority must invite every relevant participant to submit a tender.

(21) In paragraph (20), “relevant participant” means an economic operator which has been admitted to the dynamic purchasing system in relation to the category corresponding to the specific procurement concerned.

(22) A contracting authority must award the contract to the tenderer that submitted the most economically advantageous tender on the basis of the award criteria set out in the contract notice for the dynamic purchasing system or, where a prior information notice is used as a means of calling for competition, in the invitation to confirm interest.

(23) Those criteria may, where appropriate, be formulated more precisely in the invitation to tender.

(24) A contracting authority may, at any time throughout the period of validity of the dynamic purchasing system, require admitted participants to submit a renewed ESPD within 5 working days from the date on which that request is transmitted.

(25) Regulation 60(8) to (11) (European Single Procurement Document: use, content and form of the ESPD) shall apply throughout the period of validity of the dynamic purchasing system.

(26) A contracting authority must indicate the period of validity of the dynamic purchasing system in the call for competition.

(27) A contracting authority must notify the Commission of any change to the period of validity using—

(a) where the period of validity is changed without terminating the system, the form used initially for the call for competition for the dynamic purchasing system;

(b) where the system is terminated, a contract award notice referred to in regulation 51 (contract award notice).

(28) No charges may be made to any economic operators which are interested in or are a party to the dynamic purchasing system.

Electronic Auctions

36.—(1) A contracting authority may use electronic auctions, in which economic operators present one or both of the following:—

(a) new prices, revised downwards; or

(b) new values concerning certain elements of tenders.

(2) A contracting authority must structure the electronic auction as a repetitive electronic process, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.

(3) Electronic auctions must not be used for public works contracts or public service contracts, which have as their subject-matter intellectual activities (such as the design of works) which cannot be ranked using automatic evaluation methods.

(4) A contracting authority which decides to hold an electronic auction must state that fact in the contract notice or in the invitation to confirm interest.

(5) In open or restricted procedures or competitive procedures with negotiation when the content of the procurement documents, in particular the technical specifications, can be established with precision a contracting authority—

(a) may decide that the award of a public contract shall be preceded by an electronic auction;

(b) may hold an electronic auction—

(i) on the reopening of competition among the parties to a framework agreement as provided for in regulation 34(7)(b) or (c) (framework agreements); or

(ii) on the opening for competition of contracts to be awarded under a dynamic purchasing system.

(6) The electronic auction must be based on prices, on the new values of the features of the tenders indicated in the procurement documents or on both, where the contract is awarded on the basis of the best price-quality ratio.

(7) Where a contracting authority has decided to hold an electronic auction, the procurement documents must include at least the following—

(a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;

(b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;

(c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;

(d) information concerning the electronic auction process;

(e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding; and

(f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.

(8) Before proceeding with an electronic auction, a contracting authority must make a full initial evaluation of the tenders in accordance with the award criteria and with the weighting fixed for them.

(9) A tender must be considered admissible where—

(a) it has been submitted by a tenderer who has not been excluded pursuant to regulation 58 (exclusion grounds) and who meets the selection criteria; and

(b) it is in conformity with the technical specifications without being irregular, unacceptable or unsuitable.

(10) A tender must be considered to be irregular for the purposes of paragraph (9)(b) where—

(a) it does not comply with the procurement documents;

(b) it was received late;

(c) there is evidence of collusion or corruption; or

(d) it has been found by the contracting authority to be abnormally low.

(11) A tender must be considered to be unacceptable for the purposes of paragraph (9)(b) where—

(a) it was submitted by a tenderer which does not have the required qualifications; or

(b) the price tendered exceeds the contracting authority’s budget as determined and documented prior to the commencement of the procurement procedure.

(12) A tender must be considered not to be suitable for the purpose of paragraph (9)(b) where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the contracting authority’s needs and requirements as specified in the procurement documents.

(13) All tenderers that have submitted admissible tenders must be invited simultaneously to participate in the electronic auction using, as of the date and time specified in the invitation, the technical connection arrangements referred to in accordance with the instructions set out in the invitation.

(14) The electronic auction may take place in a number of successive phases.

(15) The electronic auction must not start sooner than 2 working days after the date on which invitations are sent out.

(16) The invitation must be accompanied by the outcome of a full evaluation of the relevant tender, carried out in accordance with the weighting provided for in regulation 67(9) (contract award criteria).

(17) The invitation must also state the mathematical formula to be used in the electronic auction to determine the automatic re-rankings on the basis of the new prices or new values submitted, or both.

(18) The formula referred to in paragraph (17) must incorporate the weighting of all the criteria established to determine the most economically advantageous tender, as indicated in the notice used as a means of calling for competition or in other procurement documents.

(19) For the purpose of paragraph (18), any ranges of weightings must be reduced beforehand to a specified value.

(20) Where variants are authorised in accordance with regulation 46 (variants), a separate formula must be provided for each variant.

(21) Throughout each phase of an electronic auction the contracting authority must instantaneously communicate to all tenderers at least sufficient information to enable the tenderers to ascertain their relative rankings at any moment.

(22) A contracting authority may, where this has been previously indicated, communicate other information concerning other prices or values submitted.

(23) A contracting authority may also at any time announce the number of participants in the current phase of the auction.

(24) In no case, however, may a contracting authority disclose the identities of the tenderers during any phase of an electronic auction.

(25) A contracting authority must close an electronic auction—

(a) at the previously indicated date and time;

(b) when the authority receives no more new prices or new values which meet the requirements concerning minimum differences specified in accordance with paragraph (7)(e), provided that the authority has previously stated the time which they will allow to elapse after receiving the last submission before they close the electronic auction; or

(c) when all of the previously indicated number of phases in the auction have been completed.

(26) Where the contracting authority intends to close an electronic auction in accordance with paragraph (25)(c), whether or not in combination with any arrangements laid down in paragraph (25)(b), the authority must indicate in the invitation to participate in the auction the timetable for each phase of the auction.

(27) After closing an electronic auction, a contracting authority must award the contract in accordance with regulation 67 (contract award criteria) on the basis of the results of the electronic auction.

Electronic catalogues

37.—(1) Where the use of electronic means of communication is required, a contracting authority may require tenders to be presented in the format of an electronic catalogue or to include an electronic catalogue.

(2) Tenders presented in the form of an electronic catalogue may be accompanied by other documents, completing the tender.

(3) Electronic catalogues must be established by the candidates or tenderers with a view to participating in a given procurement procedure in accordance with the technical specifications and format established by the contracting authority.

(4) Electronic catalogues must also comply with the requirements for electronic communication tools set out in regulation 23 (rules applicable to communication) as well as with any additional requirements set by the contracting authority in accordance with that regulation.

(5) Where the presentation of tenders in the form of electronic catalogues is accepted or required, a contracting authority must—

(a) state that to be the case in the contract notice, or in the invitation to confirm interest where a prior information notice is used as a means of calling for competition; and

(b) indicate in the procurement documents all the necessary information pursuant to regulation 23(16) to (20) (rules applicable to communication) concerning the format, the electronic equipment used and the technical connection arrangements and specifications for the catalogue.

(6) Where a framework agreement has been concluded with more than one economic operator following the submission of tenders in the form of electronic catalogues, a contracting authority may provide that the reopening of competition for a specific contract is to take place on the basis of updated catalogues.

(7) Where a contracting authority requires updated catalogues in accordance with paragraph (6), the authority must—

(a) invite tenderers to resubmit their electronic catalogues, adapted to the requirements of the contract in question; or

(b) notify tenderers that the authority intends to collect from the electronic catalogues which have already been submitted the information needed to constitute tenders adapted to the requirements of the contract in question, provided that the use of that method has been indicated in the procurement documents for the framework agreement.

(8) Where a contracting authority reopens competition for a specific contract in accordance with paragraph (7)(b), the authority must—

(a) notify tenderers of the date and time at which the authority intends to collect the information needed to constitute tenders adapted to the requirements of the specific contract in question, and

(b) allow tenderers to refuse such collection of information.

(9) A contracting authority must allow an adequate period of time between the notification referred to in paragraph (8)(a) and the collection of information.

(10) Before awarding the contract, a contracting authority must present the collected information to the tenderer concerned and give the tenderer the opportunity to contest or confirm that the tender thus constituted does not contain any material errors.

(11) A contracting authority may award a contract based on a dynamic purchasing system by requiring that offers for a specific contract are to be presented in the format of an electronic catalogue.

(12) A contracting authority may also award a contract based on a dynamic purchasing system in accordance with paragraphs (7)(b) and (8) to (10) provided that the request for participation in the dynamic purchasing system is accompanied by an electronic catalogue in accordance with the technical specifications and format established by the contracting authority.

(13) For the purpose of paragraph (12), the catalogue must be completed subsequently by the candidates, when they are informed of the contracting authority’s intention to constitute tenders by means of the procedure set out in paragraph (7)(b).

Centralised purchasing activities and central purchasing bodies

38.—(1) A contracting authority may acquire supplies, services or both from a central purchasing body offering the centralised purchasing activity referred to in paragraph (9)(a).

(2) A contracting authority may acquire works, supplies or services by using—

(a) a contract awarded by a central purchasing body;

(b) a dynamic purchasing system operated by a central purchasing body; or

(c) to the extent set out in regulation 34(4) (framework agreements), a framework agreement concluded by a central purchasing body offering the centralised purchasing activity.

(3) Where a dynamic purchasing system which is operated by a central purchasing body may be used by another contracting authority, this must be mentioned in the call for competition setting up that dynamic purchasing system.

(4) Subject to paragraph (5), where a contracting authority makes an acquisition in accordance with paragraphs (1) or (2), the contracting authority fulfils its obligations under these Regulations in relation to such acquisition.

(5) A contracting authority referred to in paragraph (4) is responsible for fulfilling the obligations imposed by these Regulations in respect of any part of the procedure that the authority conducts itself, such as—

(a) awarding a contract under a dynamic purchasing system which is operated by a central purchasing body;

(b) conducting a reopening of competition under a framework agreement that has been concluded by a central purchasing body; or

(c) determining, pursuant to regulation 34(7)(a) or (b) (framework agreements), which of the economic operators, that are party to a framework agreement that has been concluded by a central purchasing body, shall perform a given task under such framework agreement.

(6) All procurement procedures conducted by a central purchasing body must be performed using electronic means of communication, in accordance with the requirements set out in regulation 23 (rules applicable to communication).

(7) A contracting authority may, without applying the procedures provided for in these Regulations, award a public service contract for the provision of centralised purchasing activities to a central purchasing body.

(8) A public service contract referred to in paragraph (7) may also include the provision of ancillary purchasing activities.

Occasional joint procurement

39.—(1) Two or more contracting authorities may agree to perform certain specific procurements jointly.

(2) Contracting authorities shall be jointly responsible for fulfilling their obligations under these Regulations where—

(a) the conduct of a procurement procedure in its entirety is carried out jointly in the name of and on behalf of all the contracting authorities concerned; or

(b) one contracting authority manages the procedure, acting on its own behalf and on behalf of the other contracting authorities concerned.

(3) Where the conduct of a procurement procedure is not in its entirety carried out in the name of and on behalf of the contracting authorities concerned—

(a) the contracting authorities shall be jointly responsible only for those parts carried out jointly; and

(b) each contracting authority shall have sole responsibility for fulfilling its obligations under these Regulations in respect of the parts it conducts in its own name and on its own behalf.

Procurement involving contracting authorities from different member States

40.—(1) Without prejudice to regulation 13 (exclusions: public contracts between entities within the public sector), a contracting authority may act jointly with a contracting authority from another member State in the award of a public contract by using one of the means provided for in this regulation.

(2) A contracting authority must not use the means provided for in this regulation for the purpose of avoiding the application of mandatory public law provisions in the applicable law of the jurisdiction to which the authority is subject, where those provisions are in conformity with EU law.

(3) A contracting authority may use centralised purchasing activities offered by a central purchasing body located in another member State.

(4) A contracting authority may only use the provision of centralised purchasing activities by a central purchasing body located in another member State where they are conducted in accordance with the national provisions of the member State where the central purchasing body is located.

(5) The national provisions of the member State where the central purchasing body is located also apply to—

(a) the award of a contract under a dynamic purchasing system;

(b) the conduct of a reopening of competition under a framework agreement; and

(c) the determination, for the purpose of points (a) and (b) of Article 33(4) of the Directive (to which effect is given in these Regulations by regulation 34(7)(a) and (b)) (framework agreements), of which of the economic operators which are party to the framework agreement shall perform a given task.

(6) In the circumstances set out in paragraph (7), several contracting authorities from different member States may—

(a) jointly award a public contract, conclude a framework agreement or operate a dynamic purchasing system; and

(b) to the extent that they may do so in accordance with Article 33(2) of the Directive (to which effect is given in these Regulations by regulation 34(3) to (5) (framework agreements)), award contracts based on the framework agreement or award public contracts under the dynamic purchasing system.

(7) The circumstances referred to in paragraph (6) are that—

(a) unless the necessary elements have been regulated by an international agreement concluded between the member States concerned, the participating contracting authorities have concluded an agreement that determines—

(i) the responsibilities of the parties and the relevant applicable national provisions; and

(ii) the internal organisation of the procurement procedure, including the management of the procedure, the distribution of the works, supplies or services to be procured, and the conclusion of contracts; and

(b) the allocation of responsibilities and the applicable national law have been referred to in the procurement documents.

(8) When determining responsibilities and the applicable national law as referred to in paragraph (7)(a)(i), the participating contracting authorities may allocate specific responsibilities among them and determine the applicable provisions of the national laws of any of their respective member States.

(9) A participating contracting authority fulfils its obligations under these Regulations when it purchases works, supplies or services from a contracting authority which is responsible for the procurement procedure.

(10) Contracting authorities from different member States may set up a joint entity for the purpose of paragraph (1), subject to compliance with paragraph (11).

(11) The participating contracting authorities must, before undertaking any given procurement, by a decision of the competent body of the joint entity, agree on the applicable national procurement rules of—

(a) the member State where the joint entity has its registered office; or

(b) the member State where the joint entity is carrying out its activities.

(12) The agreement referred to in paragraph (11) may either apply for an undetermined period, when fixed in the constitutive act of the joint entity, or may be limited to a certain period of time, certain types of contract or one or more individual contract awards.

(13) The other provisions of these Regulations apply to procurement by the joint entity only where they are the national provisions applicable in accordance with paragraph (11).

(14) In this regulation—

“central purchasing body located in another member State” means any person which is a central purchasing body for the purposes of the Directive in the member State in which it is located; and

“contracting authority from another member State” means any person which is a contracting authority for the purposes of the Directive in a member State other than the United Kingdom, and references to “participating contracting authorities” shall, to the extent that they are from another member State, be interpreted accordingly.