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Statutory Instruments

2011 No. 1631

Public Procurement, England And Wales

Public Procurement, Northern Ireland

The Cleaner Road Transport Vehicles Regulations 2011

Made

30th June 2011

Laid before Parliament

6th July 2011

Coming into force

31st July 2011

The Secretary of State is a Minister designated M1 for the purposes of section 2(2) of the European Communities Act 1972 M2 in relation to public procurement.

Marginal Citations

M21972 c.68. Section 2(2) was amended by the Legislative and Regulatory Reform Act 2006 (c.51), section 27(1), and by the European Union (Amendment) Act 2008 (c.7), section 3(3) and Part 1 of the schedule. Paragraph 1A of schedule 2 was inserted by the Legislative and Regulatory Reform Act 2006, section 28 and amended by the European Union (Amendment) Act 2008, section 3(3) and Part 1 of the schedule. There are other instruments amending section 2(2) or paragraph 1A of schedule 2 but none is relevant.

These Regulations make provision for a purpose mentioned in section 2(2) of that Act and it appears to the Secretary of State that it is expedient for any reference in these Regulations to the Annex to Directive 2009/33/EC of the European Parliament and of the Council of 23rd April 2009 on the promotion of clean and energy-efficient road transport vehicles M3 to be construed as a reference to that Annex as amended from time to time.

Marginal Citations

M3OJ No L 120, 15.5.2009, p 5.

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of schedule 2 to, that Act.

Citation, commencement and extentE+W+N.I.

1.—(1) These Regulations may be cited as the Cleaner Road Transport Vehicles Regulations 2011 and come into force on 31st July 2011.

(2) These Regulations do not extend to Scotland.

InterpretationE+W+N.I.

2.—(1) In these Regulations—

  • F1...

  • [F2“associated tender documents” has the same meaning as in section 21(4) of the Procurement Act 2023;]

  • [F2“contract documents” means any tender notice or associated tender documents;]

  • [F3 “contracting authority” has the meaning given to “ contracting authorities ” in regulation 2(1) of the Public Contracts Regulations 2015] [F4, regulation 4 of the Utilities Contracts Regulations or regulation 4 of the Concession Contracts Regulations 2016 (as applicable)];

  • [F2“contract notice” means a notice which is a contract notice within the meaning of Part 2 of the Public Contracts Regulations 2015 or the Utilities Contracts Regulations 2016 (as applicable);]

  • [F2“contracting authority” has the same meaning as in section 2 of the Procurement Act 2023, but as if section 2(5)(b), and the reference to paragraph (b) in section 2(5)(d)(ii), were omitted;]

  • “the Directive” means Directive 2009/33/EC of the European Parliament and of the Council of 23rd April 2009 on the promotion of clean and energy-efficient road transport vehicles;

  • “economic operator” means—

    (a)

    a person who is an economic operator within the meaning of the [F5Public Contracts Regulations 2015] [F6, the Utilities Contracts Regulations 2016 or the Concession Contracts Regulations 2016 (as applicable)];

    (b)

    a person who—

    (i)

    offers on the market road transport vehicles for purchase or leasing;

    (ii)

    sought, seeks, or would have wished, to be the person with whom an operator enters into a contract for the purchase or leasing of road transport vehicles; and

    (iii)

    is a national of and established in [F7the United Kingdom or Gibraltar];

  • “Official Journal” means the Official Journal of the European Union;

  • “operator” means a person required to perform public service obligations under a public service contract;

  • “procurement procedure” means—

    (a)

    [F8“the open procedure, the restricted procedure, the competitive procedure with negotiation, competitive dialogue, the negotiated procedure without prior publication or an innovation partnership within the meaning of the Public Contracts Regulations 2015;”]

    (b)

    [F9the open procedure, the restricted procedure, the negotiated procedure with prior call for competition, the negotiated procedure without prior call for competition, competitive dialogue or an innovation partnership within the meaning of the Utilities Contracts Regulations 2016;]

    (c)

    any procedure by means of which an operator advertises for, and considers, offers in relation to a proposed contract;

  • “public service contract” and “public service obligation” have the same meaning as in [F10the Public Service Obligations in Transport Regulations 2023];

  • “road transport vehicle” has the meaning given in article 4(3) of the Directive;

  • [F11“supplier” means—

    (a)

    a person or public entity or group of such persons and entities, including any temporary association of undertakings, which offers the execution of works or a work, the supply of products or the provision of services on the market;

    (b)

    a person who—

    (i)

    offers on the market road transport vehicles for purchase or leasing,

    (ii)

    sought, seeks or would have wished, to be the person with whom an operator enters into a contract for the purchase or leasing of road transport vehicles, and

    (iii)

    is a national of, and established in, the United Kingdom or Gibraltar;]

  • [F11“tender notice” has the same meaning as in section 21(2) of the Procurement Act 2023;]

  • “type approval requirement” has the meaning given in section 54(1) of the Road Traffic Act 1988 M4;

  • [F12“work” means the outcome of a building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function.]

  • F13...

(2) In these Regulations (including provisions of the Directive incorporated by reference), references to the Annex to the Directive are to be construed as references to that Annex as amended from time to time.

Textual Amendments

Marginal Citations

M41988 c 52.

Scope of the RegulationsE+W+N.I.

3.—(1) Subject to paragraphs (2) to (6), these Regulations apply to contracts for the purchase or leasing of road transport vehicles by contracting authorities F14... or operators.

(2) These Regulations do not apply to contracts for the purchase or leasing of road transport vehicles referred to in Article 2(3) of [F15Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles], [F16as in force on IP completion day,] provided that those vehicles are not subject to type approval requirements.

(3) These Regulations do not apply to any contract unless—

[F17(a)the Procurement Act 2023 applies in respect of that contract; or]

F18(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F19(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F20(d)that contract is to be entered into by an operator and the condition specified in paragraph (4) is satisfied.]

(4) That condition is that—

(a)if that operator were a contracting authority, that contract would not be excluded from the application of the [F21Procurement Act 2023 by section 3 (public contracts) of that Act (whether or not it would also be so excluded for any other reason).]

F22(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F23(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) These Regulations do not apply to any contract entered into pursuant to a procurement procedure which began before 31st July 2011.

(6) For the purposes of paragraph (5), a procurement procedure began before 31st July 2011 if before that date and for the purposes of that procedure the contracting authority, utility or operator carrying out the procedure —

(a)sent a contract notice to the Official Journal in accordance with the Public Contracts Regulations 2006 or the Utilities Contracts Regulations 2006 in order to invite—

(i)offers; or

(ii)requests to be selected to tender or to negotiate;

(b)published any form of advertisement seeking offers or expressions of interest; or

(c)contacted any economic operator in order to seek offers or expressions of interest.

Textual Amendments

Purchase and leasing of clean and energy-efficient road transport vehiclesE+W+N.I.

4.—(1) Any contracting authority F24... or operator when purchasing or leasing road transport vehicles must take into account the operational lifetime energy and environmental impacts referred to in paragraph (2) in respect of the vehicles to be purchased or leased.

(2) Those operational lifetime energy and environmental impacts are—

(a)energy consumption;

(b)carbon dioxide emissions; and

(c)emissions of—

(i)oxides of nitrogen;

(ii)non-methane hydrocarbons; and

(iii)particulate matter.

(3) Such contracting authorities F25... and operators may also take into account other relevant environmental impacts.

(4) In satisfying the requirement of paragraph (1) a contracting authority F26... or operator must apply at least one of the options set out in paragraphs (5) and (6).

(5) Technical specifications may be set out in the contract documents for the purchase or leasing of road transport vehicles in respect of the impacts listed in paragraph (2) together with any other environmental impacts being considered under paragraph (3).

(6) The impacts referred to in paragraph (5) (“the energy and environmental impacts”) may be taken account of in the purchasing or leasing decision.

[F27(7) Where a contracting authority or operator applies the option set out in paragraph (6), and employs—

(a)a competitive tendering procedure or a direct award within the meaning of Part 3 of the Procurement Act 2023, or

(b)any other procedure by means of which they advertise for, and consider offers, in relation to a proposed contract,

that contracting authority or operator must use the energy and environmental impacts as award criteria.

(8) Where a contracting authority or operator applies the option set out in paragraph (6) and operational lifetime costs are attributed to the energy and environmental impacts, that contracting authority or operator must comply with regulation 5.]

Textual Amendments

Methodology for the calculation of operational lifetime costsE+W+N.I.

5.—[F28(1)] Where regulation 4(7)(b) applies, the operational lifetime costs for—

(a)energy consumption; and

(b)carbon dioxide emissions and pollutant emissions set out in Table 2 in the Annex to the Directive,

are to be calculated using the methodology set out in Article 6 of the Directive.

[F29(2) Any reference in Table 2 in the Annex to the Directive to a specified number of Euros (“EUR”) is to be read, for the purpose of paragraph (1), as that sum converted into pounds sterling (“GBP”) using the exchange rate of GBP1 = EUR1.11003.]

Textual Amendments

Enforcement of dutiesE+W+N.I.

6.—(1) The obligation of a contracting authority F30... or operator to comply with these Regulations is a duty owed to [F31a supplier].

(2) Subject to paragraph (4), [F32Part 9 of the Procurement Act 2023] has effect as if any reference in that Part to—

(a)the duty owed in accordance with [F33section 100 of that Act] included reference to the duty owed in accordance with paragraph (1);

(b)a contracting authority included reference to an operator;

(c)[F34a supplier] included any person who is [F34a supplier] for the purposes of these Regulations.

F35(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F36(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F37(4) [F38Where Part 9 of the Procurement Act 2023 has effect in relation to a supplier by virtue of paragraph (2)(b)—]

(a)the operator does not owe any duty under that Part to a person who is not a national of or established in [F39the United Kingdom or Gibraltar];

(b)in proceedings against an operator under that Part the Court may not make [F40an order setting aside the contract or modification,] an order imposing a civil financial penalty or an order shortening the duration of the contract;

(c)the operator is not required to refrain from entering into any contract by reason of any proceedings having been started under that Part.]

Textual Amendments

P. Hammond

Secretary of State for Transport

Department for Transport

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement, for England and Wales and Northern Ireland, Directive 2009/33/EC (“the Directive”) of the European Parliament and of the Council of 23rd April 2009 on the promotion of clean and energy-efficient road transport vehicles (OJ No L 120, 15.5.2009, p 5).

Regulation 3(1) specifies the persons to whom the Regulations apply when contracting to purchase or lease motor vehicles. Regulation 3(2) provides that the Regulations do not apply to certain categories of vehicle that are not subject to type approval. Regulations 3(3) and (4) provide that the Regulations do not apply to contracts entered into by a contracting authority or utility which are not subject to the Public Contracts Regulations 2006 or the Utilities Contracts Regulations 2006, or contracts entered into by a private sector operator which would not meet the financial thresholds in those regulations if the operator were a contracting authority or utility. Regulations 3(5) and (6) provide that the Regulations do not apply to contracts entered into under a procurement process which began before the Regulations came into force.

Regulation 4 sets out the obligation imposed on persons to whom the Regulations apply in respect of the purchase or leasing of motor vehicles. Those persons are required to take into account operational lifetime energy and environmental impacts (set out in regulation 4(2)). They may do so by establishing technical specifications in respect of those impacts for the vehicles to be purchased or leased (regulation 4(5)), or by taking account of those impacts in the purchasing or leasing decision (regulation 4(6)). Where those impacts are taken account of in the purchasing or leasing decision, that may be done by way of award criteria (where a procurement procedure is used) or by applying a specified methodology to calculate the operational lifetime costs of the impacts (regulation 4(7)).

Regulation 5 specifies the methodology for the calculation of the operational lifetime costs by way of cross reference to Article 6 of the Directive. By virtue of regulation 2(2), the cross reference will capture future changes to Article 6.

Regulation 6 cross-refers to Part 9 of the Public Contracts Regulations 2006 and Part 9 of the Utilities Contracts Regulations 2006 to ensure compliance with the requirements imposed under the Directive.

An impact assessment of the effect this instrument will have on the costs of the business, voluntary and public sectors has been produced and is available from the Office of Low Emission Vehicles, Department for Transport, Zone 1/33, Great Minster House, 76 Marsham Street, London SW1P 4DR or may be accessed via the Department's website at www.dft.gov.uk. A copy has been placed in the library of each House of Parliament.

A Transposition Note is also available and may be accessed as above.

Both the impact assessment and the Transposition Note are annexed to the Explanatory Memorandum which is available alongside the instrument on the National Archives website ( www.legislation.gov.uk).

A copy of Directive 2009/33/EC may be obtained from the Stationery Office or viewed in the Official Journal of the European Union via the EU website at http://eur-lex.europa.eu.

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