The Public Contracts (Amendment) Regulations 2009

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Public Contracts Regulations 2006 (“the principal Regulations”). The principal Regulations implemented, for England, Wales and Northern Ireland, Directive 2004/18/EC of the European Parliament and Council on the co-ordination of procedures for the award of public works contracts, public supply contracts and public services contracts (OJ L 134, 30.4.2004, p114) (“the 2004 Directive”) and Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30.12.1989, p33) as amended(1) (“the principal Remedies Directive”).

Except where otherwise stated below, these Regulations implement, for England, Wales and Northern Ireland article 1 of Directive 2007/66/EC of the European Parliament and Council amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ L 335, 20.12.2007, p31) (“the amending Remedies Directive”), which amends the principal Remedies Directive.

Regulation 10 substitutes new provisions for the existing Part 9 in the principal Regulations. Part 9 governs the proceedings that may be taken in the High Court for remedies in respect of breaches of the principal Regulations. In particular, the new provisions—

• change the time limits within which proceedings must be started (the new regulations 47D and 47E);

• change what must be done when proceedings are started (the new regulation 47F);

• require contracting authorities to refrain from entering into a contract where, before it is entered into, proceedings are started in respect of the authority’s decision to award that contract (the new regulation 47G). The Court is given power to terminate this requirement (the new regulation 47H);

• introduce a new remedy of a declaration of ineffectiveness, which must be granted if any of the three grounds for ineffectiveness set out in the new regulation 47K applies, except where the general interest grounds for not making such a declaration set out in the new regulation 47L are met (the new regulations 47J, 47K and 47L);

• address the consequences of a declaration of ineffectiveness, including power for the Court to make orders about consequential matters (the new regulation 47M);

• require the Court to impose a civil financial penalty on the contracting authority where a declaration of ineffectiveness is made (the new regulations 47J and 47N);

• require the Court to impose such a penalty and/or make an order shortening the duration of the contract where a declaration of ineffectiveness is withheld on general interest grounds or where there has been a breach of certain specific requirements (the new regulations 47J and 47N);

• put framework agreements in the same position as contracts for these purposes (the definition of ‘contract’ in the new regulation 47(1); and

• address how ineffectiveness and other penalties affect specific contracts based on a framework agreement (the new regulation 47O).

Regulations 8 and 9 change requirements about information that must be given by contracting authorities about its decision to award a contract or conclude a framework agreement, and modify the obligation on contracting authorities not to enter into a contract or conclude a framework agreement within a certain period of time (“the standstill period”) after such information is given to various participants in the procurement process. In particular, the amendments—

• modify the information that must be included in the decision notice, the class of economic operators to which the notice must be sent, and the circumstances in which it must be sent (regulation 8); and

• provide for a standstill period of 10 or 15 days, and for how this is to be calculated depending, in particular, on the means of communication that is used and whether the period is reckoned from the sending or receipt of the notice (regulation 9).

Regulation 6 introduces a specific requirement to notify applicants who are excluded prior to the stage at which the contracting authority makes its contract award decision. This is not required by the amending Remedies Directive, but arises out of the 2004 Directive.

Regulation 7 ensures that the form of contract award notice to be used by contracting authorities reflects amendments to the annex which prescribes that form in Commission Regulation (EC) No 1564/2005.

Regulation 4(a) amends the definition of “working day” in the principal Regulations to add Christmas Day and Good Friday to the days which are not working days. This affects references throughout the principal Regulations, including provisions which implement the 2004 Directive as well as the principal Remedies Directive as amended.

Regulation 11 contains transitional provisions. Their effect is that these Regulations (except the amendment to the definition of “working day”) do not affect contract award procedures commenced before the commencement date of these Regulations, or the award of specific contracts under a dynamic purchasing system that was established, or a framework agreement that was concluded, before that date.

A transposition note and a full Impact Assessment of the effect that this instrument will have on the costs to business and the voluntary sector are available from the OGC website (www.ogc.gov.uk). They are also annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website (www.opsi.gov.uk).

(1)

By Council Directive 92/50/EEC relating to the coordination of procedures for the award of public services contracts (OJ L 209, 24.7.1992, p1)