The Public Contracts (Works, Services and Supply) (Amendment) Regulations 2000

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement European Parliament and Council Directive 97/52/EC (OJ No. L328, 28.11.97, p.1) in its entirety and for England, Wales, Scotland and Northern Ireland. Directive 97/52/EC amends Council Directives 92/50/EEC (OJ No. L209, 24.7.92, p.1), 93/36/EEC (OJ No. L199, 9.8.93, p.1), and 93/37/EEC (OJ No. L199, 9.8.93, p. 54) concerning the co-ordination of procedures for the award of public services contracts, public supply contracts and public works contracts respectively. Those directives have been implemented for the United Kingdom by the Public Services Regulations 1993 (S.I. 1993/3228) (“the Services Regulations”); the Public Supply Contracts Regulations 1995 (S.I. 1995/201) (“the Supply Regulations”) and the Public Works Contracts Regulations 1991 (S.I. 1991/2680) (“the Works Regulations”), respectively.

The Works Regulations, the Services Regulations and the Supply Regulations specify the procedures to be followed by public bodies, called “contracting authorities”, when they seek offers for certain contracts for the provision of works, services or supplies. The principal purpose of Directive 97/52/EC is to ensure that contractors, service-providers and suppliers in the European Union are treated no less favourably under the Council Directives on public procurement than third country contractors, service-providers and suppliers are treated under the WTO Government Procurement Agreement (GPA) where it applies. These Regulations amend the requirements of the Works Regulations, the Services Regulations and the Supply Regulations accordingly. Information on the GPA (Cm 2572) and where it applies may be found on the WTO web-site (www.wto.org).

In the interest of transparency, these Regulations bring up to date the descriptions of the contracting authorities to whom the Works Regulations, Services Regulations and Supply Regulations apply and modify the lists of relevant States in Europe whose contractors, service-providers and suppliers are owed duties of compliance under those Regulations, in the same way as contractors, service-providers and suppliers who are nationals of or established in a Member State.

Where the GPA applies, these Regulations extend the benefit of the duty of compliance with the Works Regulations, Services Regulations and Supply Regulations to contractors, service-providers and suppliers who are nationals of or established in third country signatories to the GPA.

Thus these Regulations make the following amendments to the Works Regulations, the Services Regulations and the Supply Regulations respectively:

(a) The definition of “contracting authority” is revised and up-dated (regulations 3(2), 4(2) and 5(2)), as is the definition of a “relevant state” (regulations 3(1), (3), 4(1), (3), 5(1), (3) and Schedules 2, 5 and 8);

(b) The financial thresholds, for the purpose of defining contracts to which the Works Regulations, Services Regulations and Supply Regulations apply are modified to align these with the thresholds of the GPA (regulations 3(4), 4(4), 4(11) and 5(4));

(c) Contracting authorities are permitted to reduce the time limit for the receipt of tenders when using the open and restricted procedures provided certain conditions are met (regulations 3(6), 3(8), 4(6), 4(8), 5(6) and 5(8));

(d) Contracting authorities are permitted to authorise the submission of tenders by electronic means and other alternative methods to submission in person or by post, provided certain conditions are met (regulations 3(7), 3(9), 4(7), 4(9), 5(7) and 5(9));

(e) Additional requirements about the information to be given by contracting authorities when de-briefing unsuccessful candidates and tenderers are specified (regulations 3(10), 4(10) and 5(10));

(f) Contracting authorities are required to comply with amended statistical reporting obligations (regulations 3(11), 4(12) and 5(12));

(g) The benefit of a contracting authority’s duty of compliance with the Works Regulations, Services Regulations and Supply Regulations is extended to contractors, service-providers and suppliers respectively who are nationals of or established in GPA states, where the GPA applies (regulations 3(12), 4(13) and 5(13)); and

(h) Revised forms of model notices for publication in the Official Journal are provided (Schedules 1, 3 and 7).