The Public Works Contracts Regulations 1991

Sub-contracting the work or works to be carried out under a public works concession contract

26.  –

(1) A contracting authority seeking offers in relation to a public works concession contract shall either–

(a) include in the invitation to tender for, or to apply to be selected to tender for or to negotiate, the concession contract a request that the applicant specify whether he would intend, if awarded the concession contract, to sub-contract to persons who are not affiliated to him any of the work or works to be carried out under the concession contract and, if so, how much as a proportion of the value of such work or works would be so sub-contracted, or

(b) require as a term of the concession contract–

(i) that the concessionaire sub-contract to persons who are not affiliated to the concessionaire some or all of the work or works to be carried out under the concession contract, and

(ii) that the amount of the works so sub-contracted be not less than 30%, or such higher percentage as may be specified in the contract at the option of the contracting authority or the concessionaire, of the value of the consideration which the contracting authority would expect to give for the carrying out of the work or works if it did not grant a concession.

(2) Where the concessionaire is a contracting authority that contracting authority shall comply with the provisions of these Regulations in respect of public works contracts it seeks offers in relation to for the purpose of sub-contracting the work or works to be carried out under the public works concession contract.

(3) Where the concessionaire is not a contracting authority the concessionaire shall–

(a) publicise his intention to seek offers in relation to any contract to which this paragraph applies by virtue of paragraph (4) below by sending to the Official Journal as soon as possible after forming the intention a notice in a form substantially corresponding to that set out in Part G of Schedule 2 and containing the information therein specified in relation to the contract;

(b) comply with regulation 30 in relation to that notice as if the concessionaire were a contracting authority;

(c) if that notice invites tenders, fix as the last date for the receipt by the concessionaire of tenders a date of not less than 40 days from the date of the despatch of the notice and specify that date in paragraph 4(a) of the notice; and

(d) if the notice invites applications to be selected to tender for or negotiate the contract–

(i) fix as the last date for the receipt of such applications a date not less than 37 days from the date of despatch of the notice and specify that date in paragraph 4(a) of the notice; and

(ii) fix as the last date for the receipt of tenders following selection of the persons to be invited to tender a date of not less than 40 days from the date of despatch of the invitation and specify that date in the invitation.

(4) Paragraph (3) above applies to a contract–

(a) in relation to which the concessionaire is seeking offers for the purpose of sub-contracting any of the work or works to be carried out under the public works concession contract,

(b) which the conc essionaire does not intend to enter into with a person affiliated to him,

(c) which would, if the concessionaire were a contracting authority, be a public works contract other than a public works contract in respect of which a contracting authority would be entitled to use the negotiated procedure pursuant to regulation 10(2)(d) to (h).

(5) For the purposes of this regulation a person is to be treated as affiliated to another person if either exercises, directly or indirectly, a dominant influence over the other or any person exercises, directly or indirectly, a dominant influence over both of them or if they are both members of any consortium formed for the purpose of performing the public works concession contract; and a person shall be taken to exercise a dominant influence over another person–

(a) if he possesses the greater part of the issued share capital of that person or controls the voting power attached to such greater part, or

(b) if he may appoint more than half of the individuals who are ultimately responsible for managing that person’s affairs.

(6) A contracting authority shall require applicants for a public works concession contract to submit a list of all persons affiliated to the applicant with the application and to update that list from time to time to take account of any changes in the persons affiliated to the applicant.