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SCOTTISH STATUTORY INSTRUMENTS

2006 No. 1
PUBLIC PROCUREMENT
The Public Contracts (Scotland) Regulations 2006

	Made	4th January 2006
	Laid before the Scottish Parliament	5th January 2006
	Coming into force	31st January 2006

ARRANGEMENT OF REGULATIONS

PART 1
GENERAL

1.	Citation commencement and extent

2.	Interpretation

3.	Contracting authorities

4.	Economic operators

5.	Application

6.	General exclusions

7.	Reserved contracts

8.	Thresholds

PART 2
TECHNICAL SPECIFICATIONS

9.	Technical specifications in the contract documents

10.

Variants

PART 3
PROCEDURES LEADING TO THE AWARD OF A PUBLIC CONTRACT

11.	Prior information notices

12.	Selection of contract award procedures

13.	Use of the negotiated procedure with prior publication of a contract notice

14.	Use of the negotiated procedure without prior publication of a contract notice

15.	The open procedure

16.	The restricted procedure

17.	The negotiated procedure

18.	The competitive dialogue procedure

19.	Framework agreements

20.	Dynamic purchasing systems

21.	Electronic auctions

22.	Central purchasing bodies

PART 4
SELECTION OF ECONOMIC OPERATORS

23.	Criteria for the rejection of economic operators

24.	Information as to economic and financial standing

25.	Information as to technical or professional ability

26.	Supplementary information

27.	Official lists of approved economic operators

28.

Consortia

29.	Corporations

PART 5
THE AWARD OF A PUBLIC CONTRACT

30.	Criteria for the award of a public contract

31.	Contract award notice

32.	Information about contract award procedures

PART 6
SPECIALISED CONTRACTS

33.	Design contests

34.	Subsidised public works contracts and public services contracts

35.	Subsidised housing scheme works contracts

36.	Public works concession contracts

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

PART 7
MATTERS RELATING TO A PUBLIC CONTRACT

38.	Obligations relating to taxes, environmental protection, employment protection and working conditions

39.	Conditions for performance of contracts

PART 8
MISCELLANEOUS

40.	Statistical and other reports

41.	Provision of reports

42.	Publication of notices

43.	Confidentiality of information

44.	Means of communication

45.	Sub-contracting

46.	Public service bodies

PART 9
APPLICATIONS TO THE COURT

47.	Enforcement of obligations

PART 10
REPEALS, REVOCATIONS, SAVINGS, TRANSITIONAL PROVISIONS

48.	Repeals and revocations

49.	Savings and transitional provisions

SCHEDULE 1 —

GPA ANNEX 1 CONTRACTING AUTHORITIES

SCHEDULE 2 —

ACTIVITIES CONSTITUTING WORKS

SCHEDULE 3 —

CATEGORIES OF SERVICES

SCHEDULE 4 —

EXTENSION TO NON-MEMBER STATES

SCHEDULE 5 —

GOODS FOR THE PURPOSES OF THE THRESHOLDS

SCHEDULE 6 —

PROFESSIONAL OR TRADE REGISTERS

SCHEDULE 7 —

REPEALS AND REVOCATIONS

The Scottish Ministers in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 [1], hereby make the following Regulations:

PART 1
GENERAL
Citation commencement and extent
     1. —(1) These Regulations may be cited as the Public Contracts (Scotland) Regulations 2006 and come into force on 31st January 2006.

    (2) These Regulations extend to Scotland only.

Interpretation
     2. —(1) In these Regulations–

"buyer profile" means a page on the internet set up by a contracting authority containing one or more of the following: prior information notices, information on ongoing invitations to tender, prospective and concluded contracts, cancelled procedures and any useful general information such as a contact point, a telephone number, a facsimile number, a postal address or an e-mail address;

"carrying out" in relation to a work or works means the construction or the design and construction of that work or those works;

"central purchasing body" means a contracting authority which–

"the Commission" means the European Commission;

"Commission Regulations (EC) No. 1564/2005" means Commission Regulation (EC) No. 1564/2005 of 7th September 2005 establishing standard forms for the publication of notices in the framework of public procurement procedures pursuant to Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council[

2

3

"competitive dialogue procedure" means a procedure–

"concessionaire" means a person who has entered into a public works concession contract with a contracting authority;

"contract documents" means the invitation to tender for or to negotiate a contract, the descriptive document (if any), the proposed conditions of contract, the specifications or descriptions of the goods, services, work or works required by the contracting authority and of the materials or goods to be used in or for such work or works, and all documents supplementary thereto;

"contract notice" means, except in regulation 49, a notice sent to the Official Journal in accordance with these Regulations;

"contracting authority" has the meaning given to it by regulation 3;

"contractor" means a person who offers on the market work or works and–;

4

"CPV" means Common Procurement Vocabulary;

"design contest" means a competition, particularly in the fields of planning, architecture, civil engineering and data processing–

5

"disability" has the same meaning as in the Disability Discrimination Act 1995;

"dynamic purchasing system" means a completely electronic system of limited duration which is–

"EC Treaty" means the Treaty establishing the European Community signed on 25th March 1957 as amended by the Community Treaties;

"economic operator" has the meaning given to it by regulation 4;

"electronic auction" means a repetitive electronic process for the presentation of prices to be revised downwards or of new and improved values of quantifiable elements of tenders, including price, which–

"electronic means" means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

"established" has the same meaning as in the Community Treaties:

"European standard" has the meaning given to it in regulation 9(1);

"financial year" unless the context otherwise requires, means the period of 12 months ending on the date in any year in respect of which the accounts of any person are prepared;

"framework agreement" means an agreement or other arrangement between one or more contracting authorities and one or more economic operators which establishes the terms (in particular the terms as to price and, where appropriate, quantity) under which the economic operator will enter into one or more contracts with a contracting authority in the period during which the framework agreement applies;

"goods" includes electricity, substances, growing crops and things attached to or forming part of the land which are agreed to be severed before the purchase or hire under a public supply contract and any ship, aircraft or vehicle;

"government department" includes a Northern Ireland department or the head of such department;

6

"GPA" means the Government Procurement Agreement;

"indicative tender" means a tender prepared by an economic operator seeking admission to a dynamic purchasing system which sets out the terms on which it would be prepared to enter into a contract with a contracting authority should that contracting authority propose to award a contract under the system;

"international standard" has the meaning given to it in regulation 9(1);

"Minister of the Crown" means the holder of an office in Her Majesty's Government in the United Kingdom and includes the Treasury;

"national of a relevant State" means, in the case of a person who is not an individual, a person formed in accordance with the laws of a relevant State and which has its registered office, central administration or principal place of business in a relevant State;

"negotiated procedure" means a procedure leading to the award of a contract whereby the contracting authority negotiates the terms of the contract with one or more economic operators selected by it;

7

"Official Journal" means the Official Journal of the European Union;

"open procedure" means a procedure leading to the award of a contract whereby all interested economic operators may tender for the contract;

"prior information notice" means a notice sent to the Official Journal in accordance with regulation 11;

"public contract" means a public services contract, a public supply contract or a public works contract;

8

"public services contract" means a contract, in writing, for consideration (whatever the nature of the consideration) under which a contracting authority engages a person to provide services but does not include–

but a contract for both goods and services shall be considered to be a public services contract if the value attributable to those services exceeds that of the goods covered by the contract and a contract for services which includes activities specified in Schedule 2 that are only incidental to the principal object of the contract shall be considered to be a public services contract.

"public supply contract" means a contract, in writing, for consideration (whatever the nature of the consideration)–

and for any siting or installation of those goods, but where under such a contract services are also to be provided, the contract shall only be a public supply contract where the value of the consideration attributable to the goods and any siting or installation of the goods is equal to or greater than the value attributable to the services;

"public telecommunications services" means telecommunications services the provision of which the relevant States have specifically assigned, in particular, to one or more telecommunications entities;

"public works concession contract" means a public works contract under which the consideration given by the contracting authority consists of or includes the grant of a right to exploit the work or works to be carried out under the contract;

"public works contract" means a contract, in writing, for consideration (whatever the nature of the consideration)–

"relevant State" has the meaning given to it by regulation 4(4);

"restricted procedure" means a procedure leading to the award of a contract whereby only economic operators selected by the contracting authority may submit tenders for the contract;

"Schedule 1 entity" means an entity specified in Schedule 1 pursuant to its inclusion in the list of central government bodies in Annex I to the GPA, and for which these Regulations make particular provisions;

"services concession contract" means a public services contract under which the consideration given by the contracting authority consists of or includes the right to exploit the service or services to be provided under the contract;

"services provider" means a person who offers on the market services and–

(b) who is a national of a relevant State and established in a relevant State;

"ship" includes any boat and other description of a vessel used in navigation;

"substance" means any natural or artificial substance, whether in solid, liquid or gaseous form or in the form of vapour;

"supplier" means a person who offers on the market goods for purchase or hire and–

"telecommunications services" means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television;

9

" work" means the outcome of any works which is sufficient of itself to fulfil an economic and technical function;

10

"works" means any of the activities specified in Schedule 2;

"written" or "in writing" means any expression consisting of words or figures that can be read, reproduced and subsequently communicated and it may include information transmitted and stored by electronic means; and

"year" means a calendar year.

(2) Subject to paragraph (3), in these Regulations–

(3) Where services specified in both Parts A and B of Schedule 3 are to be provided under a single contract, then the contract shall be treated as–

(4) Where a thing is required to be done under these Regulations–

Contracting authorities
3. —(1) For the purposes of these Regulations each of the following is a contracting authority–

(a) a Minister of the Crown;

(b) a government department;

(c) the House of Commons;

(d) the House of Lords;

(e) the Scottish Ministers;

(f) the Scottish Parliamentary Corporate Body;

(g) the National Assembly for Wales;

(h) the Northern Ireland Assembly Commission;

(i) a local authority, which for the purposes of these Regulations, means–

(i) a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[

11

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(j) a fire authority constituted by a combination scheme under the Fire Services Act 1947[13];

(k) a fire and rescue authority–

14

(l) a joint fire board constituted by an administration scheme under section 147 of the Local Government (Scotland) Act 1973[15];

(m) the Fire Authority for Northern Ireland;

(n) a police authority established under section 3 of the Police Act 1996[16];

(o) the Metropolitan Police Authority established under section 5B of the Police Act 1996;[17]

(p) a police authority established under section 2 of the Police (Scotland) Act 1967[18];

(q) a joint police board constituted by an amalgamation scheme made or approved under section 21B of the Police (Scotland) Act 1967[19];

(r) the Northern Ireland Policing Board;

(s) an authority established under section 10 of the Local Government Act 1985[20];

(t) a joint authority established by Part IV of the Local Government Act 1985;

(u) any body established in accordance with an order under section 67 of the Local Government Act 1985;

(v) a joint board established by order under the Local Government etc. (Scotland) Act 1994[21];

(w) the Broads Authority;

(x) any joint board, the constituent members of which consist of any of the bodies specified in paragraphs (i),(j), (l), (n), (o), (p) (q), (r), (s), (t), (u) and (v);

(y) a National Park authority established by an Order under section 63 of the Environment Act 1995[22];

(z) a National Park authority established by an Order under section 6 of the National Parks (Scotland) Act 2000[23];

(aa) a corporation established, or a group of individuals appointed to act together, for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and–

(bb) an association of or formed by one or more of the above; and

(cc) to the extent not specified in sub paragraphs (a) to (z), an entity specified in Schedule 1.

    (2) Where an entity specified in paragraph (1) does not have the capacity to enter into a contract, the contracting authority in relation to that entity is a person whose function it is to enter into contracts for that entity.

Economic operators
     4. —(1) In these Regulations, an "economic operator" means a contractor, a supplier or a services provider.

    (2) When these Regulations apply, a contracting authority shall not treat a person who is not a national of a relevant State and established in a relevant State more favourably than one who is.

    (3) A contracting authority shall–

(a) treat economic operators equally and without discrimination; and

(b) act in a transparent and proportionate manner.

    (4) In these Regulations a relevant State is a member State or a State listed in column 1 of Schedule 4; the agreements with the European Union by which the provisions in relation to public procurement are extended to those States are specified in column 2 of that Schedule and the statutory provision designating them as European Treaties under section 1(3) of the European Communities Act 1972[24] are specified in column 3 to that Schedule.

Application
     5. —(1) Subject to paragraph (3) and regulation 8(21), these Regulations apply whenever a contracting authority seeks offers in relation to a proposed public supply contract, public works contract, Part A services contract, framework agreement or dynamic purchasing system other than a contract, framework agreement or dynamic purchasing system excluded from the application of these Regulations by regulation 6 or 8.

    (2) Whenever a contracting authority seeks offers in relation to a proposed Part B services contract other than one excluded by virtue of regulation 6 or 8–

(a) Parts 1, 9 and 10 apply; and

(b) the following provisions in Parts 2 to 8 apply–

(3) In these Regulations, a reference to a public works contract does not include a public works concession contract except in–

(a) Parts 1, 9 and 10; and

(b) the following provisions in Parts 6, 7 and 8–

General exclusions
6. —(1) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system where the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts (Scotland) Regulations 2006[25] and–

(f) where that utility is engaged in an activity excluded from the Utilities Contract (Scotland) Regulations 2006 by virtue of regulation 9 of those Regulations.

(2) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system–

(e) for the acquisition of land, including existing buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land;

(f) for the acquisition, development, production or co-production of programme material intended for broadcasting by broadcasters or for the purchase of broadcasting time;

(g) for arbitration or conciliation services;

(h) for financial services in connection with the issue, purchase, sale or transfer of securities or other financial instruments in particular transactions by the contracting authorities to raise money or capital;

(i) for central bank services;

(j) for employment and other contracts of service;

(k) for research and development services unless–

(l) under which services are to be provided by a contracting authority, or by a person which is a contracting authority in another relevant State for the purposes of the Public Sector Directive, because that contracting authority or person has an exclusive right–

in accordance with any published law, regulation or administrative provision, which is compatible with the EC Treaty; or

(m) which is a services concession contract awarded by a contracting authority, subject to the application of regulation 46.

Reserved contracts
7. —(1) In this regulation–

"supported business" means a service where more than 50% of the workers are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported business" shall be interpreted accordingly;

"supported employment programme" means a scheme under which work is provided for disabled persons and where more than 50% of the workers so supported are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported employment programmes" shall be interpreted accordingly; and

"supported factory" means an establishment where more than 50% of the workers are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported factories" shall be interpreted accordingly.

    (2) A contracting authority may reserve the right to participate in a public contract award procedure, framework agreement or dynamic purchasing system to economic operators which operate supported businesses, supported employment programme or supported factories.

    (3) Where a contracting authority has reserved the right to participate in a public contract, framework agreement or dynamic purchasing system, in accordance with paragraph (2), it shall follow the contract award procedures set out in these Regulations.

    (4) When seeking offers in relation to a public contract, a framework agreement or dynamic purchasing system, a contracting authority shall specify in the contract notice if it is using the approach referred to in paragraph (2).

Thresholds
     8. —(1) These Regulations do not apply to the seeking of offers in relation to a proposed public contract, framework agreement or dynamic purchasing system, where the estimated value of the contract (net of value added tax) at the relevant time is less than the relevant threshold.

    (2) For the purposes of paragraph (1), the relevant threshold is 5,278,000 euro in the case of a public works contract and a public works contract subsidised as referred to in regulation 34.

    (3) Subject to paragraph (4), the relevant threshold for the purposes of paragraph (1) in the case of a Part A public services contract is–

(a) 137,000 euro where offers are sought by Schedule 1 entitles; and

(b) 211,000 euro where offers are sought by any other contracting authority.

(4) For the purposes of paragraph (1), the relevant threshold is 211,000 euro in the case of a public services contract which is–

(a) subsidised as referred to in regulation 34;

(b) for telecommunications services specified under CPV references 64200000 8 to 64228200 2, 72318000-7, and 72530000 9 to 72532000 3 within category 5 of Part A of Schedule 3;

(c) for research and development services specified in category 8 of Part A of Schedule 3; or

(d) a Part B services contract to which regulation 34 does not apply.

(5) For the purposes of paragraph (1), the relevant threshold in the case of a public supply contract is–

(a) 137,000 euro where offers are sought by–

(b) 211,000 euro in relation to all other contracts.

    (6) The value in pounds sterling of any amount expressed in these Regulations in euro shall be calculated by reference to the rate for the time being applying for the purposes of the Public Sector Directive as published from time to time in the Official Journal.

    (7) For the purposes of paragraph (1), the estimated value of a public contract shall be the value of the total consideration payable, net of value added tax (calculated in accordance with this regulation), which the contracting authority expects to be payable under the contract.

    (8) In determining the value of the total consideration which the contracting authority expects to be payable under a public contract it shall, where appropriate, take account of–

(a) any form of option;

(b) any renewal of the contract;

(c) any prize or payment awarded by the contracting authority to the economic operator;

(d) the premium payable and other forms of remuneration for insurance services;

(e) fees, commission, interest or other forms of remuneration payable for banking and other financial services; and

(f) fees, commission or other forms of remuneration payable for design services.

(9) For the purposes of paragraph (1), the estimated value of a public supply contract for the hire of goods is–

(a) the value of the consideration which the contracting authority expects to be payable under the contract if the term of the contract is of fixed duration; or

(b) the value of the monthly consideration payable under the contract multiplied by 48 if the term of the contract is indefinite or uncertain at the time the contract is entered into.

(10) For the purposes of paragraph (1), the estimated value of a public services contract which does not indicate a total price is–

(a) the aggregate of the value of the consideration which the contracting authority expects to be payable under the contract if the term of the contract is fixed for 48 months or less; or

(b) the value of the consideration which the contracting authority expects to be payable in respect of each month of the period multiplied by 48 if the term of the contract is fixed for more than 48 months, or over an indefinite period.

(11) Subject to paragraphs (12) and (15), where a contracting authority has a single requirement for goods or services or for the carrying out of a work or works and a number of contracts have been entered into or are to be entered into to fulfil that requirement, the estimated value for the purposes of paragraph (1) of each of those contracts is the aggregate of the value of the consideration which the contracting authority expects to be payable under each of those contracts.

(12) Paragraph (11) does not apply to any contract (unless the contracting authority chooses to apply that paragraph to a contract) if the contract has an estimated value of less than–

(a) 80,000 euro for a public services contract or a public supply contract; or

(b) 1,000,000 euro for a public works contract;

and the aggregate value of that contract and any other such contract is less than 20% of the aggregate value of the consideration which the contracting authority has given or expects to be payable under all the contracts entered into or to be entered into to fulfil the single requirement for goods, services or for the carrying out of work or works.

(13) Subject to paragraph (15), where a contracting authority has a requirement over a period for goods or services and for that purpose enters into–

(a) a series of contracts, or

(b) a contract which under its terms is renewable,

the estimated value for the purposes of paragraph (1) of the contract shall be the amount calculated under paragraph (14).

(14) The contracting authority shall calculate the amount referred to in paragraph (13) either–

(a) by taking the aggregate of the value of the consideration payable under the contracts which–

during the last financial year of the contracting authority ending before, or the period of 12 months ending immediately before, the relevant time, and by adjusting that amount to take account of any expected changes in quantity and cost of the goods to be purchased or hired or services to be provided in the period of 12 months commencing with the relevant time; or

(b) by estimating the aggregate of the value of the consideration which the contracting authority expects to be payable under contracts which have similar characteristics, and which are for the same type of goods or services during–

(15) Notwithstanding paragraphs (11) and (13), in relation to a public supply contract or a public services contract, when the goods or services are required for the sole purpose of a discrete operational unit within the organisation of a contracting authority and–

(a) the decision whether to procure those goods or services has been devolved to such a unit; and

(b) that decision is taken independently of any other part of the contracting authority;

the valuation methods described in paragraphs (11) and (14) shall be adapted by aggregating only the value of the consideration which was payable or the contracting authority expects to be payable, as the case may be, under a public supply contract or a public services contract which was or is required for the sole purpose of that unit.

(16) Where a contracting authority intends to provide any goods to the economic operator awarded a public works contract for the purpose of carrying out that contract, the value of the consideration of the public works contract for the purposes of paragraphs (7) and (11) shall be taken to include the estimated value at the relevant time of those goods.

(17) The relevant threshold for the purposes of paragraph (1) for a framework agreement or dynamic purchasing system is the threshold for–

(a) a public works contract, where the framework agreement or dynamic purchasing system relates to the carrying out of work or works;

(b) a public services contract, where the framework agreement or dynamic purchasing system relates to the provision of services; or

(c) a public supply contract, where the framework agreement or dynamic purchasing system relates to the purchase or hire of goods.

    (18) The estimated value of a framework agreement or dynamic purchasing system is the aggregate of the values estimated in accordance with this regulation of all the contracts which could be entered into under the framework agreement or dynamic purchasing system.

    (19) A contracting authority shall not enter into separate contracts nor exercise a choice under a valuation method with the intention of avoiding the application of these Regulations to those contracts.

    (20) The relevant time for the purposes of paragraphs (1), (14) and (16) means the date on which a contract notice would be sent to the Official Journal if the requirement to send such a notice applied to that contract in accordance with these Regulations.

    (21) When a contracting authority proposes to award a public contract which has an estimated value for the purpose of paragraph (1) which is below the relevant threshold, or where a proposed public contract is otherwise exempt from the requirement for prior publication of a contract notice, the contracting authority shall, if required by its general Community obligations, for the benefit of any potential economic operator, ensure a degree of advertising which is sufficient to enable open competition and meet the requirements of the principles of equal treatment, non discrimination and transparency.

PART 2
TECHNICAL SPECIFICATIONS
Technical specifications in the contract documents
9. —(1) In this regulation–

"common technical specification" means a technical specification drawn up in accordance with a procedure recognised by the member States with a view to uniform application in all member States and which has been published in the Official Journal;

"European standard" means a standard adopted by a European standards organisation and made available to the general public;

"European technical approval" means an approval of the fitness for use of a product, issued by an approval body designated for the purpose by a member State, following a technical assessment of whether the product fulfils the essential requirements for building works, having regard to the inherent characteristics of the product and the defined conditions of application and use;

"international standard" means a standard adopted by an international standards organisation and made available to the general public;

"British standard" means a standard adopted by a British standards organisation and made available to the general public;

"recognised bodies" means test and calibration laboratories and certification and inspection bodies which comply with applicable European standards and "recognised body" shall be interpreted accordingly;

"standard" means a technical specification approved by a recognised standardisation body for repeated or continuous application, compliance with which is not compulsory and which is an international standard, a European standard, or a British standard;

"technical reference" means any product produced by European standardisation bodies, other than official standards, according to procedures adopted for the development of market needs; and

"technical specifications" means–

(2) Where a contracting authority wishes to lay down technical specifications which must be met by–

it shall specify those technical specifications in the contract documents.

    (3) When laying down technical specifications in accordance with paragraph (2), a contracting authority shall, wherever possible, take into account accessibility criteria for disabled persons or the suitability of the design for all users.

    (4) A contracting authority shall ensure that technical specifications afford equal access to economic operators and do not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

    (5) Subject to technical requirements which are mandatory in the United Kingdom and to the extent that those requirements are compatible with Community obligations, a contracting authority shall define the technical specifications required for a contract in accordance with paragraph (6), (7), (8) or (9).

    (6) A contracting authority may define the technical specifications referred to in paragraph (5)–

(b) in the absence of the technical specifications referred to in sub paragraph (a), by reference to the following technical specifications–

and each reference to a technical specification made in accordance with this paragraph shall be accompanied by the words "or equivalent".

    (7) A contracting authority may define the technical specifications referred to in paragraph (5) in terms of performance or functional requirements (which may include environmental characteristics) provided that the requirements are sufficiently precise to allow an economic operator to determine the subject of the contract and a contracting authority to award the contract.

    (8) A contracting authority may define the technical specifications referred to in paragraph (5) by defining performance and functional requirements as referred to in paragraph (7) with reference to the technical specifications referred to in paragraph (6) as a means of presuming conformity with such performance or functional requirements.

    (9) A contracting authority may define the technical specifications referred to in paragraph (5) by reference to technical specifications referred to in paragraph (6) for certain characteristics and by reference to performance or functional requirements referred to in paragraph (7) for other characteristics.

    (10) Where a contracting authority defines technical specifications as referred to in paragraph (6), it shall not reject an offer on the basis that the materials, goods or services offered do not comply with those technical specifications if an economic operator proves to the satisfaction of the contracting authority by any appropriate means that the one or more solutions that economic operator proposes in its tender satisfy the requirements of those technical specifications in an equivalent manner.

    (11) Where a contracting authority defines technical specifications in terms of performance or functional requirements as referred to in paragraph (7), it shall not reject an offer for materials, goods, services, work or works which complies with–

if those technical specifications address the performance or functional requirements referred to by the contracting authority and the economic operator proves in its tender to the satisfaction of the contracting authority by any appropriate means that the work, works, materials, goods or services meet the performance or functional requirements of the contracting authority.

(12) Where a contracting authority lays down environmental characteristics in terms of performance or functional requirements as referred to in paragraph (7), it may use the detailed technical specifications, or if necessary, parts thereof, as defined by European, national or multi national eco-labels or by any other eco-label, provided that–

    (13) A contracting authority may indicate in the contract documents that the materials, goods or services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents and shall accept any other appropriate means of proof that the materials, goods or services comply with those technical specifications.

    (14) The term "appropriate means" referred to in paragraphs (10), (11) and (13) includes a technical dossier of a manufacturer or a test report from a recognised body.

    (15) A contracting authority shall accept certificates from recognised bodies established in other member States when considering whether a tender for a contract conforms with the technical specifications laid down by the contracting authority in accordance with paragraph (2).

    (16) Subject to paragraph (17), a contracting authority shall not lay down technical specifications in the contract documents which refer to–

which have the effect of favouring or eliminating particular economic operators.

(17) Notwithstanding paragraph (16), exceptionally, a contracting authority may incorporate the references referred to in paragraph (16) into the technical specifications in the contract documents provided that the references are accompanied by the words "or equivalent", where–

Variants
     10. —(1) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous in accordance with regulation 30(1)(a), it shall indicate in the contract notice whether or not it authorises economic operators to submit offers which contain variants on the requirements specified in the contract documents and a contracting authority shall not accept an offer which contains a variant without that indication.

    (2) Where a contracting authority authorises a variant in accordance with paragraph (1) it shall state in the contract documents the minimum requirements to be met by the variant and any specific requirements for the presentation of an offer which contains variants.

    (3) A contracting authority shall only consider variants which meet its minimum requirements as stated in the contract documents in accordance with paragraph (2).

    (4) A contracting authority shall not reject an offer which contains variants on the requirements specified in the contract documents on the ground that–

(a) where it intends to award a public services contract, the offer would lead to the award of a public supply contract; or

(b) where it intends to award a public supply contract, the offer would lead to the award of a public services contract.

PART 3
PROCEDURES LEADING TO THE AWARD OF A PUBLIC CONTRACT
Prior information notices
11. —(1) Subject to paragraphs (4), (5) and (6), a contracting authority shall send a notice in the form of the prior information notice in Annex I to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified to the Commission or publish it on that contracting authority's buyer profile as soon as possible after–

(2) The notice referred to in paragraph (1) shall contain information in respect of–

and that notice shall be sub divided to give that information separately for each product area of goods by reference to the CPV nomenclature of each category of works or services as specified in Schedules 2 and 3.

(3) Where a contracting authority publishes a notice on its buyer profile in accordance with paragraph (1), it shall also send a notice in the form of a notice on a buyer profile in Annex VIII to Commission Regulation (EC) No. 1564/2005 informing the Commission by electronic means in accordance with the format and procedure for sending notices specified in paragraph (3) of Annex VIII to the Public Sector Directive of that publication.

(4) The obligation to publish a prior information notice in accordance with paragraph (1) applies only to proposed public contracts or framework agreements which are not excluded from the application of these Regulations by regulation 6 or 8 and where, at the date of despatch of the notice–

is equal to or exceeds 750 000 euro; or

(b) the total consideration which the contracting authority expects to be payable under public works contracts or framework agreements for the carrying out of work or works is equal to or exceeds 5,278,000 euro.

    (5) The obligation to publish a prior information notice applies only where the contracting authority takes the option of shortening the time limits for the receipt of tenders in accordance with regulation 15(7) or 16(18).

    (6) This regulation does not apply to a proposed public contract where the procedure for the award of the contract is the negotiated procedure without the prior publication of a contract notice in accordance with regulation 14.

Selection of contract award procedures
     12. —(1) Subject to paragraph (2), for the purpose of seeking offers in relation to a proposed public contract, a contracting authority shall use–

(a) the open procedure in accordance with regulation 15; or

(b) the restricted procedure in accordance with regulation 16;

in all circumstances, except where it may use–

(i) the negotiated procedure in accordance with regulation 17 in the circumstances referred to in regulations 13 and 14; or

(ii) the competitive dialogue procedure in accordance with regulation 18.

(2) Paragraph (1) shall not apply in the case of a subsidised housing scheme works contract which is subject to regulation 35.

Use of the negotiated procedure with prior publication of a contract notice
13. A contracting authority may use the negotiated procedure with the prior publication of a contract notice in accordance with regulation 17(3) in the following circumstances–

(a) subject to regulation 14(1)(a)(i), in the event that the procedure leading to the award of a contract by the contracting authority using the open procedure, the restricted procedure or the competitive dialogue procedure was discontinued because of–

but only if the original terms of the proposed contract offered in the discontinued procedure have not been substantially altered in the negotiated procedure;

(b) exceptionally, when the nature of the work or works to be carried out, the goods to be purchased or hired or the services to be provided under the contract or the risks attaching to them are such as not to permit prior overall pricing;

(c) in the case of a public services contract, when the nature of the services to be provided, in particular in the case of services specified in category 6 of Part A of Schedule 3 and intellectual services, such as services involving the design of work or works, is such that specifications cannot be established with sufficient precision to permit the award of the contract using the open procedure or restricted procedure; or

(d) in the case of a public works contract, when the work or works are to be carried out under the contract solely for the purpose of research, testing or development but not with the aim of ensuring profitability or to recover research and development costs.

Use of the negotiated procedure without prior publication of a contract notice
14. —(1) A contracting authority may use the negotiated procedure without the prior publication of a contract notice in accordance with regulation 17(3) in the following circumstances–

(a) in the case of a public contract–

cannot be met;

(b) in the case of a public supply contract–

(iii) for the purchase or hire of goods quoted and purchased on a commodity market;

(iv) to take advantage of particularly advantageous terms for the purchase of goods in a closing down sale or in a sale brought about because a supplier is subject to a procedure referred to in regulation 23(4)(a), (b) or (c);

(c) in the case of a public services contract, when the rules of a design contest require the contract to be awarded to the successful contestant or to one of the successful contestants, provided that all successful contestants are invited to negotiate the contract;

(d) in the case of a public works contract or a public services contract–

(ii) subject to paragraph (5), when a contracting authority wants an economic operator which has entered into a public works contract or a public services contract with that contracting authority to carry out new work or works or provide new services which are a repetition of the work or works carried out or the services provided under the original contract and which are in accordance with the project for the purpose of which the first contract was entered into.

    (2) A contracting authority using the negotiated procedure in accordance with paragraph (1)(a)(ii) shall, if the Commission requests it, submit a report recording the fact that it has used that procedure to the Scottish Ministers for onward transmission to the Commission.

    (3) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(b)(ii) if the term of the proposed contract, or the term of that contract and of any other contract entered into for the same purpose, is more than three years, unless there are reasons why it is unavoidable that this period should be exceeded.

    (4) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(d)(i), where the aggregate value of the consideration to be given under contracts for the additional work, works or services exceeds 50 per cent of the value of the consideration payable under the original contract.

    (5) A contracting authority shall not use the negotiated procedure in accordance with paragraph (1)(d)(ii) unless–

(a) the contract notice relating to the original contract stated that a public works contract or a public services contract for new work, works or services which would be a repetition of the work or works carried out or the services provided under the original contract may be awarded using the negotiated procedure in accordance with paragraph (1)(d)(ii);

(b) in determining the estimated value of the original contract for the purposes of regulation 11, the contracting authority took into account the value of the consideration which it expected to be payable for the new work, works or services; and

(c) the procedure for the award of the new contract is commenced within 3 years of the original contract being entered into.

The open procedure
     15. —(1) A contracting authority using the open procedure shall comply with this regulation.

    (2) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No. 1564/2005, inviting tenders and containing the information therein specified.

    (3) Subject to paragraphs (5), (6) and (7), the date which the contracting authority fixes as the last date for the receipt by it of tenders made in response to the contract notice shall be specified in the contract notice and shall be not less than 52 days from the date of despatch of the notice.

    (4) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt by it of tenders.

    (5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive[26], the time limits referred to in paragraphs (3) and (7) may be reduced by 7 days.

    (6) The contracting authority may reduce the time limits for the receipt by it of tenders by 5 days provided that–

(7) Where–

the contracting authority may substitute for the period of not less than 52 days specified in paragraph (3), a shorter period of generally not less than 36 days and in any event not less than 22 days.

    (8) Where the contracting authority does not offer unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (6), the contracting authority shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator, provided that the documents are requested in good time before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (9) The contracting authority shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator, provided that the request is received in sufficient time to enable the contracting authority to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (10) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

(11) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude a tender from the evaluation of offers made in accordance with regulation 30 only if the economic operator–

(12) The contracting authority may require an economic operator to satisfy minimum levels of–

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

    (13) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (6).

The restricted procedure
     16. —(1) A contracting authority using the restricted procedure shall comply with this regulation.

    (2) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No. 1564/2005, inviting requests to be selected to tender and containing the information therein specified.

    (3) Subject to paragraph (5), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to tender shall be specified in the contract notice and shall be not less than 37 days from the date of the despatch of the notice.

    (4) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for the receipt of requests to be selected to tender and for receipt by it of tenders.

    (5) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (3) may be reduced by 7 days.

    (6) Where compliance with the minimum time limit of 37 days referred to in paragraph (3) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit–

(a) a time limit of not less than 15 days from the date of despatch of the contract notice; or

(b) where the contracting authority has transmitted the contract notice by electronic means in accordance with paragraph (5), a time limit of not less than 10 days from the date of despatch of the contract notice.

(7) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to tender only if the economic operator–

(a) may be treated as ineligible to tender on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of–

(8) The contracting authority shall make the selection of the economic operators to be invited to tender in accordance with regulations 23, 24, 25 and 26 and shall award the contract in accordance with regulation 30.

(9) Where there is a sufficient number of economic operators suitable to be selected to be invited to tender, the contracting authority may limit the number of economic operators which it intends to invite to tender provided that the contract notice specifies–

(a) the objective and non discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which shall be not less than 5, which the contracting authority intends to invite to tender and, where appropriate, the maximum number.

(10) The contracting authority shall ensure that the number of economic operators invited to tender is–

(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number specified by the contracting authority in accordance with paragraph (9)(b).

(11) Subject to paragraph (10)(a), where–

(a) the contracting authority carries out a selection in accordance with regulations 23, 24, 25 and 26; and

(b) the number of economic operators selected to be invited to tender is less than the minimum number specified by the contracting authority in the contract notice;

the contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

(12) The contracting authority may require an economic operator to satisfy minimum levels of–

(a) economic and financial standing; and/or

(b) technical or professional ability;

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

(13) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to tender for the contract and the invitation shall–

(a) be accompanied by the contract documents; or

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(14) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

(15) The contracting authority shall include the following information in the invitation–

(a) the final date for the receipt by it of tenders, the address to which they must be sent and the language or languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (2);

(c) an indication of the information to be included with the tender which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (2).

    (16) Subject to paragraphs (18) and (19), the date which the contracting authority fixes as the last date for the receipt by it of tenders and which shall be specified in the invitation to tender in accordance with paragraph (15)(a), shall be not less than 40 days from the date of the despatch of the invitation.

    (17) Where compliance with the minimum time limit of 40 days referred to in paragraph (16) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit, a time limit of not less than 10 days from the date of despatch of the invitation.

    (18) Where–

(a) the contracting authority has published a prior information notice in accordance with regulation 11;

(b) the prior information notice contained as much of the information referred to in the form of a contract notice in Annex II to Commission Regulation (EC) No. 1564/2005 as was available at the time of publication; and

(c) the prior information notice was sent to the Official Journal at least 52 days and no more than 12 months before the date on which the contract notice provided for in paragraph (2) is despatched;

the contracting authority may substitute for the period of not less than 40 days in paragraph (16), a period of generally not less than 36 days and in any event not less than 22 days.

(19) The contracting authority may reduce the time limits for the receipt by it of tenders referred to in paragraphs (16) and (18) by 5 days provided that–

(a) the contracting authority offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub paragraph (a) are available.

(20) The contracting authority or entity referred to in paragraph (13)(c) shall supply such further information relating to the contract documents as may be reasonably requested by an economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.

(21) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraph (20) and, for whatever reason, the contract documents or further information are not supplied in accordance with that paragraph; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

    (22) The contracting authority may combine the reductions in the periods of time referred to in paragraphs (5) and (19).

The negotiated procedure
     17. —(1) Subject to paragraph (2), a contracting authority using the negotiated procedure shall comply with this regulation.

    (2) A contracting authority using the negotiated procedure in accordance with regulation 14 need only comply with paragraphs (9) and (10) of this regulation.

    (3) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No. 1564/2005, inviting requests to be selected to negotiate and containing the information therein specified.

    (4) The contracting authority shall indicate whether the negotiated procedure will take place in successive stages in accordance with paragraph (22)–

(a) in the contract notice; or

(b) in that notice and the contract documents.

    (5) Subject to paragraphs (7) and (8), the date which the contracting authority fixes as the last date for the receipt by it of requests to be selected to negotiate shall be specified in the contract notice and shall be not less than 37 days from the date of despatch of the notice.

    (6) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract when fixing time limits for the receipt of requests to be selected to negotiate the contract.

    (7) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (5) may be reduced by 7 days.

    (8) Where compliance with the minimum time limit of 37 days referred to in paragraph (5) is rendered impractical for reasons of urgency, the contracting authority may substitute for that time limit–

(a) a time limit of not less than 15 days from the date of despatch of the contract notice; or

(b) where the contracting authority has transmitted the contract notice by electronic means in accordance with paragraph (7), a time limit of not less than 10 days from the date of despatch of the contract notice.

(9) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to negotiate the contract only if the economic operator–

(a) may be treated as ineligible on a ground specified in regulation 23;

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of–

(10) The contracting authority shall make the selection of the economic operators to be invited to negotiate in accordance with regulations 23, 24, 25 and 26 and shall award the contract in accordance with regulation 30.

(11) Where there is a sufficient number of economic operators suitable to be selected to negotiate, the contracting authority may limit the number of economic operators which it intends to invite to negotiate the contract provided that the contract notice specifies–

(a) the objective and non discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which shall be not less than 3, which the contracting authority intends to invite to negotiate and, where appropriate, the maximum number.

(12) The contracting authority shall ensure that the number of economic operators invited to negotiate is–

(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number set by the contracting authority in accordance with paragraph (11)(b).

(13) Subject to paragraph (12)(a), where–

(a) the contracting authority carries out a selection in accordance with regulations 23, 24, 25 and 26; and

(b) the number of economic operators selected to be invited to negotiate is less than the minimum number specified by the contracting authority in the contract notice;

the contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

(14) The contracting authority may require an economic operator to satisfy minimum levels of–

(a) economic and financial standing; and/or

(b) technical or professional ability;

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

(15) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to negotiate and the invitation shall–

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(16) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

(17) The contracting authority shall include in the invitation–

(a) the final date for the receipt by it of replies, the address to which they must be sent and the one or more languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (3);

(c) an indication of the information to be included with the reply which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph (3).

(18) The contracting authority or entity referred to in paragraph (15)(c) shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it–

(a) not less than 6 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders; or

(b) in the case of urgency where paragraph (8) applies, not less than 4 days before the date specified in the invitation to tender as the final date for the receipt by it of tenders.

(19) The contracting authority shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

(a) an economic operator requests the contract documents in sufficient time to allow a contracting authority to respond in accordance with paragraph (18) and, for whatever reason, the contract documents are not supplied in accordance with that paragraph; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

    (20) Where the contracting authority needs to identify the best tender in order to award the public contract in accordance with regulation 30(1), that contracting authority shall negotiate with economic operators which have submitted tenders with the aim of adapting the tenders to the requirements specified in the contract documents.

    (21) During any negotiations which take place in accordance with this regulation, a contracting authority shall ensure equal treatment among all economic operators and in particular, shall not provide information in a discriminatory manner which may give some economic operators an advantage over other economic operators.

    (22) The contracting authority may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria in the contract documents.

    (23) Where the contracting authority provides for the negotiated procedure to take place in successive stages in accordance with paragraph (22), it shall ensure that the number of economic operators to be invited to negotiate the contract at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of economic operators to do so.

The competitive dialogue procedure
     18. —(1) In this regulation–

"particularly complex contract" means a contract where a contracting authority is not objectively able to–

(a) define the technical means in accordance with regulation 9(7), (8) and (9) capable of satisfying its needs or objectives; or

(b) specify either the legal or financial make-up of a project or both; and

"participant" means an economic operator selected by a contracting authority using the procedure referred to in paragraph (2) to participate in the competitive dialogue procedure.

    (2) Where a contracting authority wishes to award a particularly complex contract and considers that the use of the open or restricted procedure will not allow the award of that contract, the contracting authority may use the competitive dialogue procedure.

    (3) A contracting authority using the competitive dialogue procedure shall comply with the following paragraphs of this regulation.

    (4) The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal, as soon as possible after forming the intention a notice, in the form of a contract notice in Annex II to Commission Regulation (EC) No. 1564/2005, inviting requests to participate and containing the information therein specified.

    (5) The contracting authority shall specify its needs and requirements in the contract notice and shall define those needs and requirements–

(a) in the contract notice;

(b) in the descriptive document; or

(c) in both those documents.

(6) The contracting authority shall indicate that it may provide for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (22)–

(a) in the contract notice; or

(b) in that notice and the descriptive document.

    (7) Subject to paragraph (9), the date which the contracting authority shall fix as the last date for the receipt by it of requests to be selected to participate shall be specified in the contract notice and shall be not less than 37 days from the date of the despatch of the notice.

    (8) Subject to any minimum time limit specified by this regulation, the contracting authority shall take account of all the circumstances, in particular, the complexity of the contract when fixing time limits for the receipt by it of requests to be selected to participate in the dialogue.

    (9) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (7) may be reduced by 7 days.

    (10) The contracting authority shall make its evaluation in accordance with regulations 23, 24, 25 and 26 and may exclude an economic operator from those economic operators from which it will make the selection of economic operators to be invited to participate in the dialogue only if the economic operator–

(a) may be treated as ineligible on a ground specified in regulation 23; or

(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of–

(11) The contracting authority shall make the selection of the economic operators to be invited to participate in the dialogue in accordance with regulations 23, 24, 25 and 26.

(12) Where there is a sufficient number of economic operators suitable to be selected to participate in the dialogue, the contracting authority may limit the number of economic operators which it intends to invite to participate in the dialogue provided that the contract notice specifies–

(a) the objective and non discriminatory criteria to be applied in order to limit the number of economic operators in accordance with this paragraph; and

(b) the minimum number of economic operators, which shall be not less than 3, which the contracting authority intends to invite to participate in the dialogue and, where appropriate, the maximum number.

(13) The contracting authority shall ensure that the number of economic operators invited to participate in the dialogue is–

(a) sufficient to ensure genuine competition; and

(b) at least equal to the minimum number set by the contracting authority in accordance with paragraph 12(b).

(14) Subject to paragraph (13)(a), where–

(a) the contracting authority carries out a selection in accordance with regulations 23, 24, 25 and 26; and

(b) the number of economic operators selected to be invited to participate in the dialogue is less than the minimum number specified by the contracting authority in the contract notice;

that contracting authority may continue the award procedure with the economic operators which have been selected, provided that any economic operator not selected or which did not request to participate is not included.

(15) The contracting authority may require an economic operator to satisfy minimum levels of–

(a) economic and financial standing; and/or

(b) technical or professional ability;

provided that those minimum levels are specified in the contract notice and are related to and proportionate to the subject matter of the contract.

(16) The contracting authority shall send invitations in writing simultaneously to each economic operator selected to participate in the dialogue and the invitation shall–

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents; or

(c) where the contract documents are held by an entity other than the contracting authority, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(17) Where the contract documents are held by an entity other than the contracting authority, the contracting authority shall ensure that the contract documents are sent to economic operators by the most rapid means of communication possible.

(18) The contracting authority shall include the following information in the invitation–

(a) the date specified for the commencement of the competitive dialogue, the address to which replies must be sent and the one or more languages in which they must be drawn up;

(b) a reference to the contract notice published in accordance with paragraph (4);

(c) an indication of the information to be included with the reply which the contracting authority may require to be provided in accordance with regulations 24, 25 and 26; and

(d) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance for such criteria, if this information was not specified in the contract notice published in accordance with paragraph(4).

    (19) The contracting authority or entity referred to in paragraph (16)(c) shall supply such further information to the economic operator relating to the contract documents or the descriptive document as may reasonably be requested by that economic operator provided that the request for such information is received in sufficient time to enable the contracting authority to supply it not less than 6 days before the date specified in the invitation to tender as the final date of the receipt by it of tenders.

    (20) The contracting authority shall open with the participants selected in accordance with regulations 23, 24, 25 and 26 a dialogue the aim of which shall be to identify and define the means best suited to satisfying its needs.

    (21) During the competitive dialogue procedure, a contracting authority–

(a) may discuss all aspects of the contract with the participants selected;

(b) shall ensure equality of treatment among all participants and in particular, shall not provide information in a discriminatory manner which may give some participants an advantage over others; and

(c) shall not reveal to the other participants solutions proposed or any confidential information communicated by a participant without that participant's agreement.

    (22) The contracting authority may provide for the competitive dialogue procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria in the contract notice or in the descriptive document.

    (23) Where the contracting authority provides for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (22), it shall ensure that the number of economic operators to be invited to participate at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of economic operators to do so.

    (24) The contracting authority may continue the competitive dialogue procedure until it can identify one or more solutions, if necessary after comparing them, capable of meeting its needs.

    (25) Where the contracting authority declares that the dialogue is concluded, it shall–

(a) inform each participant that the dialogue is concluded;

(b) request each participant to submit a final tender containing all the elements required and necessary for the performance of the project on the basis of any solution presented and specified during the dialogue; and

(c) specify in the invitation to submit a tender the final date for the receipt by it of tenders, the address to which they must be sent and the language or languages in which they must be drawn up.

    (26) The contracting authority may request a participant to clarify, specify or fine-tune a tender referred to in paragraph (25)(b), but such clarification, specification, fine-tuning or additional information shall not involve changes to the basic features of the tender or the call for tender when those variations are likely to distort competition or have a discriminatory effect.

    (27) The contracting authority shall assess the tenders received on the basis of the award criteria specified in the contract notice or descriptive document and shall award the contract to the participant which submits the most economically advantageous tender in accordance with regulation 30(1)(a).

    (28) The contracting authority may request the participant identified as having submitted the most economically advantageous tender to clarify aspects of that tender or confirm commitments contained in the tender provided that this does not have the effect of modifying substantial aspects of the tender or of the call for tender and does not risk distorting competition or causing discrimination.

    (29) The contracting authority may specify that payments may be made to a participant in respect of the participant's expenses incurred in participating in the competitive dialogue procedure.

Framework agreements
     19. —(1) A contracting authority which intends to conclude a framework agreement shall comply with this regulation.

    (2) Where the contracting authority intends to conclude a framework agreement, it shall–

(a) follow one of the procedures set out in regulation 15, 16, 17 or 18 up to (but not including) the beginning of the procedure for the award of any specific contract set out in this regulation; and

(b) select an economic operator to be party to a framework agreement by applying award criteria set in accordance with regulation 30.

(3) Where the contracting authority awards a specific contract based on a framework agreement, it shall–

(a) comply with the procedures set out in this regulation; and

(b) apply those procedures only to the economic operators which are party to the framework agreement.

(4) When awarding a specific contract on the basis of a framework agreement neither the contracting authority nor the economic operator shall include in that contract terms that are substantially amended from the terms laid down in that framework agreement.

(5) Where the contracting authority concludes a framework agreement with one economic operator–

(a) it shall award any specific contract within the limits of the terms laid down in the framework agreement; and

(b) in order to award a specific contract, the contracting authority may consult in writing the economic operator which is party to the framework agreement requesting that economic operator to supplement its tender if necessary.

(6) Where the contracting authority concludes a framework agreement with more than one economic operator, the minimum number of economic operators shall be 3, insofar as there is a sufficient number of–

(a) economic operators to satisfy the selection criteria; or

(b) admissible tenders which meet the award criteria.

(7) Where the contracting authority concludes a framework agreement with more than one economic operator, a specific contract may be awarded–

(a) by application of the terms laid down in the framework agreement without re-opening competition; or

(b) where not all the terms of the proposed contract are laid down in the framework agreement, by re-opening competition between the economic operators which are parties to that framework agreement and which are capable of performing the proposed contract in accordance with paragraphs (8) and (9).

(8) Where the contracting authority is following the procedure set out in paragraph (7)(b), it shall re-open the competition on the basis of the same or, if necessary, more precisely formulated terms, and where appropriate other terms referred to in the contract documents based on the framework agreement.

(9) Where the contracting authority is following the procedure set out in paragraph (7)(b), for each specific contract to be awarded it shall–

(a) consult in writing the economic operators capable of performing the contract and invite them within a specified time limit to submit a tender in writing for each specific contract to be awarded;

(b) set a time limit for the receipt by it of the tenders which takes into account factors such as the complexity of the subject matter of the contract and the time needed to send in tenders;

(c) keep each tender confidential until the expiry of the time limit for the receipt by it of tenders; and

(d) award each contract to the economic operator which has submitted the best tender on the basis of the award criteria specified in the contract documents based on the framework agreement.

    (10) The contracting authority shall not conclude a framework agreement for a period which exceeds 4 years except in exceptional circumstances, in particular, circumstances relating to the subject of the framework agreement.

    (11) In this regulation, a "specific contract" means a contract based on the terms of a framework agreement.

    (12) The contracting authority shall not use a framework agreement improperly or in such a way as to prevent, restrict or distort competition.

Dynamic purchasing systems
     20. —(1) A contracting authority using a dynamic purchasing system shall comply with this regulation.

    (2) The contracting authority which seeks to establish a dynamic purchasing system shall comply with the requirements of regulation 44(2) to (7) and shall use only electronic means to–

(a) establish that system; and

(b) award contracts under it.

(3) The contracting authority shall use the open procedure in accordance with regulation 15 to establish a dynamic purchasing system up to the beginning of the procedure for the award of contracts under the system set out in this regulation.

(4) When establishing a dynamic purchasing system, the contracting authority shall–

(a) send to the Official Journal as soon as possible after forming the intention a notice, in the form of the contract notice in Annex II to Commission Regulation (EC) No. 1564/2005 stating that a dynamic purchasing system is to be established; and

(b) produce a specification which indicates–

(5) When establishing a dynamic purchasing system a contracting authority may also produce additional documents relating to the operation of the system.

(6) Where the contracting authority establishes a dynamic purchasing system it shall–

(a) offer unrestricted, direct and full access to the specification and to any additional documents by electronic means from the date of publication of the contract notice to the date when the system ceases to be operated; and

(b) indicate in the contract notice the internet address at which those documents may be examined.

(7) Throughout the duration of the dynamic purchasing system, the contracting authority shall–

(a) give any economic operator the opportunity to–

(b) complete the evaluation of an indicative tender within 15 days from the date of its submission or such longer period as the contracting authority may determine if no invitation to tender is issued under the system as provided in paragraph (13) within the 15 day period.

    (8) The contracting authority shall admit to the dynamic purchasing system each economic operator which satisfies the selection criteria and has submitted an indicative tender which complies with the specification and any additional documents produced by the contracting authority in accordance with paragraph (5) when establishing the system.

    (9) The contracting authority shall as soon as possible notify an economic operator of its admission to a dynamic purchasing system or of the rejection of its indicative tender.

    (10) An economic operator which is admitted to a dynamic purchasing system may improve its indicative tender at any time provided that the improved tender complies with the specification described in paragraph (4)(b).

    (11) Where the contracting authority proposes to award a contract under a dynamic purchasing system, it shall send to the Official Journal as soon as possible after forming the intention a notice, in the form of a simplified contract notice on a dynamic purchasing system in Annex IX to Commission Regulation (EC) No. 1564/2005, inviting economic operators to submit an indicative tender in accordance with paragraph (7)(a)(i) not less than 15 days from the date of the despatch of the simplified contract notice.

    (12) The indicative tenders received within the period specified in paragraph (11) shall be evaluated by a contracting authority for admittance to the dynamic purchasing system before it proceeds with the issue of invitations to submit tenders in relation to any contract to be awarded under the dynamic purchasing system to an economic operator admitted to the system.

    (13) The contracting authority shall invite all economic operators admitted to the dynamic purchasing system to submit a tender for each contract within a time limit specified by the contracting authority.

    (14) For each contract to be awarded under the dynamic purchasing system, the contracting authority–

(a) shall award the contract to the economic operator which submits the tender which best meets the award criteria specified in the contract notice for the establishment of the dynamic purchasing system; and

(b) may, if appropriate, formulate those award criteria more precisely in the invitation to submit tenders.

    (15) The contracting authority may not charge any economic operator seeking admission to a dynamic purchasing system or which has been admitted to such a system in relation to any aspect of that system.

    (16) A dynamic purchasing system established by a contracting authority may not be operated for more than 4 years, unless there are exceptional circumstances.

    (17) The contracting authority shall not use a dynamic purchasing system improperly or in such a way as to prevent, restrict or distort competition.

Electronic auctions
     21. —(1) A contracting authority which holds an electronic auction shall comply with this regulation.

    (2) Subject to paragraph (3), the contracting authority may hold an electronic auction when using–

(a) the open procedure;

(b) the restricted procedure;

(c) the negotiated procedure in the circumstances referred to in regulation 13(a) and 14(1)(a)(i);

(d) the procedure set out in regulation 19(7)(b) on the re-opening of competition among the parties to a framework agreement; or

(e) the procedure set out in regulation 20 on the opening of competition for contracts to be awarded under a dynamic purchasing system.

    (3) The contracting authority shall not hold an electronic auction to precede the award of a public services contract or a public works contract having as its subject matter intellectual performance, such as the design of works.

    (4) The contracting authority may only hold an electronic auction to precede the award of a contract when the contract specification can be established with precision.

    (5) The contracting authority shall base an electronic auction on–

(a) price alone where the contract is to be awarded on the basis of the lowest price; or

(b) price or the values of quantifiable elements of tenders indicated in the contract specification, where the contract is to be awarded on the basis of the offer which is the most economically advantageous in accordance with regulation 30(1)(a).

(6) When the contracting authority intends to hold an electronic auction it shall state this in the contract notice.

(7) A contract specification prepared by the contracting authority in relation to a contract the award of which is to be preceded by an electronic auction shall include–

(a) the quantifiable elements of tenders capable of expression in figures or percentages which will be the subject of the electronic auction;

(b) any limitations on the values for the quantifiable elements of tenders (resulting from the contract specification) which may be submitted in the electronic auction;

(c) the information to be made available to economic operators during the electronic auction and, where appropriate, an indication of when it will be made available to them;

(d) a description of the electronic auction process;

(e) the conditions under which the economic operators will be able to bid and, in particular, the minimum differences which may be required when bidding; and

(f) all relevant information concerning–

(8) Before proceeding with an electronic auction, the contracting authority shall–

(a) make an initial evaluation of the tenders in accordance with the award criteria specified and with any weighting fixed for them; and

(b) by electronic means simultaneously invite all the economic operators which have submitted admissible tenders to submit new prices or new values in the electronic auction.

(9) Where the contracting authority is to award a contract on the basis of the offer which is the most economically advantageous to it in accordance with regulation 30(1)(a), each invitation referred to in paragraph (8)(b) shall include the outcome of the evaluation of the tender submitted by the economic operator to which the invitation is sent, carried out in accordance with the weighting described in regulation 30(3).

(10) The contracting authority shall include in the invitation referred to in paragraph (8)(b)–

(a) all relevant information concerning individual connection to the electronic system to be used in the electronic auction;

(b) the date and time of the start of the electronic auction;

(c) the number of phases in the electronic auction;

(d) the mathematical formula to be used in the electronic auction to determine automatic re-ranking of tenders on the basis of the new prices or new values submitted by economic operators and incorporating the weighting of all the criteria set to determine the most economically advantageous tender;

(e) where variant bids are authorised by the contracting authority, a separate mathematical formula for each variation; and

(f) the basis on which the electronic auction is to be closed and the appropriate additional information specified in paragraph (16).

    (11) In relation to the formula referred to in paragraph (10)(d), any ranges used in the weighting of criteria shall be set at a specified value before the invitation is sent to economic operators.

    (12) At least two working days must elapse between the date on which the invitation referred to in paragraph (8)(b) is sent and the date of the electronic auction.

    (13) During each phase of an electronic auction, the contracting authority–

(a) shall instantaneously communicate to all economic operators participating in the auction at least sufficient information to enable them to ascertain their relative rankings in the auction at any time;

(b) may communicate to each economic operator other information concerning prices or values submitted by other economic operators provided that this has been stated in the contract specification; and

(c) may disclose the number of economic operators participating in that phase of the auction.

(14) During any phase of an electronic auction, the contracting authority shall not disclose the identity of any economic operator participating in the auction.

(15) The contracting authority shall close an electronic auction–

(a) at the date and time fixed for closure in the invitation referred to in paragraph (8)(b);

(b) when it receives no further new prices or new values which meet the requirements concerning minimum differences; or

(c) when the number of phases in the electronic auction specified in the invitation referred to in paragraph (8)(b) has been completed.

(16) Where a contracting authority intends to close an electronic auction–

(a) as described in paragraph (15)(b), it shall state in the invitation referred to in paragraph (8)(b) the period which it intends to allow to elapse before it closes the auction after receiving a submission from an economic operator participating in the auction; or

(b) as described in paragraph (15)(c), it shall state in the invitation referred to in paragraph (8)(b) the timetable for each phase in the auction.

    (17) After closing an electronic auction the contracting authority shall award the contract in accordance with regulation 30 on the basis of the results of the electronic auction.

    (18) The contracting authority shall not use an electronic auction improperly or in such a way as to prevent, restrict or distort competition or to change the subject matter of the contract as referred to in the contract notice and defined in the specification.

    (19) The references to values in paragraph (5)(b), (8)(b), (10)(d), (13)(b) and (15)(b) shall be interpreted as including price.

Central purchasing bodies
     22. —(1) A contracting authority may purchase work, works, goods or services from or through a central purchasing body.

    (2) Where a contracting authority makes purchases in accordance with paragraph (1), it shall be deemed to have complied with these Regulations to the extent that the central purchasing body has complied with them.

PART 4
SELECTION OF ECONOMIC OPERATORS
Criteria for the rejection of economic operators
23. —(1) Subject to paragraph (2), a contracting authority shall treat as ineligible and shall not select an economic operator in accordance with these Regulations if the contracting authority has actual knowledge that the economic operator or its directors or any other person who has powers of representation, decision or control of the economic operator has been convicted of any of the following offences–

(a) the common law offence of conspiracy where that conspiracy relates to participation in a criminal organisation as defined in Article 2(1) of Council Joint Action 98/733/JHA[

(f) money laundering within the meaning of the Money Laundering Regulations 2003[35];

(g) any other offence within the meaning of Article 45(1) of the Public Sector Directive as defined by the national law of any relevant state.

    (2) In any case where an economic operator or its directors or any other person who has powers of representation, decision or control has been convicted of an offence described in paragraph (1), a contracting authority may disregard the prohibition described there if it is satisfied that there are overriding requirements in the general interest which justify doing so in relation to that economic operator.

    (3) A contracting authority may apply to the relevant competent authority to obtain further information regarding the economic operator and in particular details of convictions of the offences listed in paragraph (1) if it considers it needs such information to decide on any exclusion referred to in that paragraph.

    (4) A contracting authority may treat an economic operator as ineligible or decide not to select an economic operator in accordance with these Regulations on one or more of the following grounds, namely that the economic operator–

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(5) The contracting authority may require an economic operator to provide such information as it considers it needs to make the evaluation in accordance with paragraphs (1) and (4) except that it shall accept as conclusive evidence that an economic operator does not fall within the grounds specified in paragraphs (1) and (4)(a), (b), (c), (d), (f) or (g) if that economic operator provides to the contracting authority–

(b) in relation to the grounds specified in paragraphs (4)(f) or (g), a certificate issued by the relevant competent authority; and

(c) in a relevant State where the documentary evidence specified in paragraphs (5)(a) and (b) is not issued in relation to one of the grounds specified in paragraphs (1), (4)(a), (b), (c), (d), (f) or (g), a declaration on oath made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths.

(6) In this regulation, "relevant" in relation to a judicial, administrative or competent authority, notary public or commissioner for oaths means an authority designated by, or a notary public or commissioner for oaths in the relevant State in which the economic operator is established.

(7) An economic operator established in the United Kingdom or Ireland shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator–

(8) In relation to procedures for the award of a public services contract, an economic operator established in Greece shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j)–

(9) An economic operator established in a relevant State, other than the United Kingdom or Ireland, which either has an equivalent professional or trade register which is not listed in Schedule 6 or which does not have an equivalent professional or trade register shall be treated as registered on a professional or trade register for the purposes of paragraph (4)(j) on production of either a certificate that the economic operator is registered on the equivalent professional or trade register or where no such register exists, a declaration on oath, or in a relevant State which does not provide for a declaration on oath a solemn declaration, made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths, that the economic operator exercises the particular profession or trade.

Information as to economic and financial standing
24. —(1) Subject to regulation 27 and paragraph (2), in assessing whether an economic operator meets any minimum standards of economic and financial standing required of economic operators by the contracting authority–

(a) for the purposes of regulations 15(11), 16(7) and 17(9) or 18(10); and

(b) in selecting the economic operators to be invited to tender for or to negotiate the contract, in accordance with regulations 16(8), 17(10) or 18(11);

a contracting authority may take into account any of the following information–

(i) appropriate statements from the economic operator's bankers or where appropriate, evidence of relevant professional risk indemnity insurance;

(ii) statements of accounts or extracts from those accounts relating to the business of the economic operator where publication of the statement is required under the law of the relevant State in which the economic operator is established; or

(iii) where appropriate, a statement, covering the 3 previous financial years of the economic operator, of–

    (2) Where the information specified in paragraph (1) is not appropriate in a particular case, a contracting authority may require an economic operator to provide other information to demonstrate the economic operator's economic and financial standing.

    (3) A contracting authority which requires information to be provided in accordance with paragraphs (1) and (2) shall specify in the contract notice or in the invitation to tender the information which the economic operator must provide.

    (4) Where appropriate–

(a) an economic operator or a group of economic operators as referred to in regulation 28 may rely on the capacities of other entities or members in the group, regardless of the legal nature of the link between the economic operator or group of economic operators and the other entities; and

(b) the economic operator or the group of economic operators shall prove to the contracting authority that the resources necessary to perform the contract will be available and the contracting authority may, in particular, require the economic operator to provide an undertaking from the other entities to that effect.

(5) Where an economic operator is unable for a valid reason to provide the information which the contracting authority has required, the contracting authority shall accept such other information provided by the economic operator as the contracting authority considers appropriate.

Information as to technical or professional ability
25. —(1) Subject to regulation 27, in assessing whether an economic operator meets any minimum standards of technical or professional ability required of economic operators by the contracting authority–

(a) for the purposes of regulation 15(11), 16(7), 17(9) or 18(10); and

(b) in selecting the economic operators to be invited to tender for or to negotiate the contract in accordance with regulation 16(8), 17(10) or 18(11),

a contracting authority may have regard to any means listed in paragraph (2) according to the purpose, nature, quantity or importance of the contract.

(2) The means referred to in paragraph (1) are–

(a) in the case of a public services contract, a public works contract or a public supply contract requiring the siting or installation of work, the economic operator's technical ability, taking into account in particular that economic operator's skills, efficiency, experience and reliability;

(b) a list of works carried out over the past 5 years together with (unless the contracting authority specifies that the following certificate should be submitted direct to the contracting authority by the person certifying) certificates of satisfactory completion for the most important of those works indicating in each case–

(c) a statement of the principal goods sold or services provided by the supplier or the services provider in the past 3 years and–

any declaration by the economic operator attesting the details of the goods sold or services provided;

(d) a statement of the technicians or technical services available to the economic operator to–

particularly those responsible for quality control, whether or not they are independent of the economic operator;

(e) in relation to the goods to be purchased or hired or the services to be provided under the contract, a statement of the supplier's or services provider's–

(f) where the goods to be sold or hired or the services to be provided under the contract are complex or, exceptionally, are required for a special purpose, a check carried out by the contracting authority or on its behalf by a competent official body of the relevant State in which the supplier or services provider is established–

(g) the services provider's or contractor's educational and professional qualifications where the services provider or contractor is an individual and–

(h) the environmental management measures, evidenced in accordance with paragraph (4), that the services provider or contractor is able to apply when performing the contract, but only where it is necessary for the performance of that contract;

(i) a statement of the services provider's or contractor's average annual number of staff and managerial staff over the previous 3 years;

(j) a statement of the tools, plant and technical equipment available to the services provider or contractor for performing the contract;

(k) a statement of any proportion of the contract which the services provider intends to sub contract to another person;

(l) any samples, descriptions and photographs of the goods to be purchased or hired under the public supply contract and certification of the authenticity of such samples, descriptions or photographs;

(m) certification by official quality control institutes or agencies of recognised competence, attesting that the goods to be purchased or hired under the public supply contract conform to standards and technical specifications (within the meaning of regulation 9(1)) identified by the contracting authority;

(n) a certificate–

(o) any other evidence of conformity to quality assurance measures which are equivalent to the standards referred to in sub paragraph (n)(i).

(3) Where appropriate–

(a) an economic operator or a group of economic operators as referred to in regulation 28 may rely on the capacities of other entities or members in the group, regardless of the legal nature of the link between the economic operator or group of economic operators and the other entities; and

(b) the economic operator or the group of economic operators shall prove to the contracting authority that the resources necessary to perform the contract will be available and the contracting authority may, in particular, require the economic operator to provide an undertaking from the other entities to that effect.

(4) The evidence referred to in paragraph (2)(h) is–

(a) a certificate–

(i) attesting conformity to environmental management standards based on–

(aa) the Community Eco Management and Audit Scheme [

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(ii) from an independent body established in any relevant State conforming to Community law or the relevant European or international standards concerning certification; or

(b) any other evidence of environmental management measures which are equivalent to the standards referred to in sub paragraph (a)(i).

    (5) A contracting authority which requires information to be provided in accordance with paragraph (2) shall specify in the contract notice or in the invitation to tender the information which the economic operator must provide.

Supplementary information
     26. Subject to regulation 27, the contracting authority may require an economic operator to provide information supplementing the information provided in accordance with regulation 23, 24 or 25 or to clarify that information, provided that the information so required relates to the matters specified in regulation 23, 24 or 25.

Official lists of approved economic operators
     27. —(1) This regulation applies where an economic operator is registered in accordance with paragraph (2) or certified in accordance with paragraph (3).

    (2) An economic operator is registered in accordance with this regulation where it is registered on the official list of approved contractors, services providers or suppliers in a relevant State which maintains such lists and in which the economic operator is established.

    (3) An economic operator is certified in accordance with this regulation where it is certified by a certification body complying with European certification standards in a relevant State which maintains such certification and in which the economic operator is established.

    (4) Where an economic operator which is registered or certified submits to the contracting authority–

(a) a certificate of registration issued by the authority administering the official list referred to in paragraph (2); or

(b) a certificate issued by the body administering the certification referred to in paragraph (3);

which specifies the information submitted to that authority or body which enabled the economic operator to be registered or certified and which states the classification given, the contracting authority shall accept the certificate as evidence of the matters referred to in paragraph (5).

(5) Subject to paragraph (6), where the certificate referred to in paragraph (4) deals with the grounds referred to in regulations 23(1), (4)(a) to(e), (h) and (j), 24(1)(b)(ii) and (iii) and–

(a) in the case of a contractor, regulation 25(2)(b), (d), (g), (i) and (j);

(b) in the case of a services provider, regulation 25(2)(c), (e), (f), (g), (h), (i), (j) and (k); or

(c) in the case of a supplier, regulation 25(2)(c), (d), (e), (f), (l) and (m),

the contracting authority shall–

(i) accept the certificate as evidence that the economic operator does not fall within the grounds specified in regulation 23(1), (4)(a) to (e), (h) and (j) and shall not be entitled to require the economic operator to submit such information relating to those grounds as is specified in regulation 23;

(ii) not be entitled to require the economic operator to provide information specified in regulation 24(1)(b)(ii) and (iii) and–

(iii) not be entitled to seek any supplementary information in accordance with regulation 26 in relation to the matters specified in sub paragraphs (c)(i) and (ii).

    (6) A contracting authority is not to be required to comply with paragraph (5) where it considers that it has justification for not doing so.

Consortia
     28. —(1) In this regulation a "consortium" means two or more persons, at least one of whom is an economic operator, acting jointly for the purpose of being awarded a public contract.

    (2) Subject to paragraph (3), a contracting authority shall not treat the tender of a consortium as ineligible nor decide not to include a consortium amongst those economic operators from which it will make the selection of economic operators to be invited to tender for or to negotiate a public contract or to be admitted to a dynamic purchasing system on the grounds that the consortium has not formed a legal entity for the purposes of tendering for or negotiating the contract or being admitted to a dynamic purchasing system.

    (3) Where a contracting authority awards a public contract to a consortium it may, if it is justified for the satisfactory performance of the contract, require the consortium to form a legal entity before entering into, or as a term of, the contract.

    (4) In these Regulations references to an economic operator where the economic operator is a consortium includes a reference to each person who is a member of that consortium.

Corporations
     29. —(1) A contracting authority shall not treat the tender of a services provider as ineligible nor decide not to include a services provider amongst those services providers from which it will make the selection of services providers to be invited to tender for or to negotiate a contract or to be admitted to a dynamic purchasing system on the ground that under the law of any part of the United Kingdom the services provider is required to be an individual, a corporation or other type of body, if under the law of the relevant State in which the services provider is established, that services provider is authorised to provide such services.

    (2) In the case of–

(a) a public services contract;

(b) a public works contract; or

(c) a public supply contract which includes services or siting and installation operations;

a contracting authority may require an economic operator which is not an individual to indicate in the tender, the indicative tender or in the request to be selected to tender for or to negotiate the contract, the names and relevant professional qualifications of the staff who will be responsible for the performance of the contract.

PART 5
THE AWARD OF A PUBLIC CONTRACT
Criteria for the award of a public contract
30. —(1) Subject to regulation 18(27) and to paragraphs (6) and (9) of this regulation, a contracting authority shall award a public contract on the basis of the offer which–

    (2) A contracting authority shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost effectiveness, after sales service, technical assistance, delivery date and delivery period or period of completion.

    (3) Where a contracting authority intends to award a public contract on the basis of the offer which is the most economically advantageous it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

    (4) When stating the weightings referred to in paragraph (3), a contracting authority may give the weightings a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract.

    (5) Where, in the opinion of the contracting authority, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the contracting authority shall indicate the criteria in descending order of importance in the contract notice or contract documents or, in the case of a competitive dialogue procedure, in the descriptive document.

    (6) If an offer for a public contract is abnormally low the contracting authority may reject that offer but only if it has–

(7) Where a contracting authority requests an explanation in accordance with paragraph (6), the information requested may, in particular, include—

(8) Where a contracting authority establishes that a tender is abnormally low because the economic operator has obtained State aid, the offer may be rejected on that ground alone only after–

    (9) Where a contracting authority rejects an abnormally low offer in accordance with paragraph (8), it shall send a report justifying the rejection to the Scottish Ministers for onward transmission to the Commission.

    (10) In this regulation "offer" includes a bid by one part of a contracting authority to provide services, to carry out a work or works or to make goods available to another part of the contracting authority when the former part is invited by the latter part to compete with the offers sought from other persons.

Contract award notice
     31. —(1) Subject to paragraphs (2) and (3), a contracting authority which has awarded a public contract or concluded a framework agreement shall, not later than 48 days after the award or conclusion, send to the Official Journal a notice, in the form of the contract award notice in Annex III to Commission Regulation (EC) No. 1564/2005 including the information therein specified.

    (2) Any of the information specified in the form of the contract award notice in Annex III to Commission Regulation (EC) No. 1564/2005 to be included in the contract award notice may be omitted in a particular case where to publish such information–

(a) would impede law enforcement;

(b) would otherwise be contrary to the public interest;

(c) would prejudice the legitimate commercial interest of any person; or

(d) might prejudice fair competition between economic operators.

(3) A contracting authority shall not be required to send a contract award notice in accordance with paragraph (1) where it awards a contract under a framework agreement which has been concluded in accordance with regulation 19.

(4) A contracting authority which has awarded a contract under a dynamic purchasing system in accordance with regulation 20 may–

(a) send the contract award notice in accordance with paragraph (1); or

(b) retain any notice it is proposing to send to the Official Journal in accordance with paragraph (1) for a period of 3 months from the date that the first notice was retained.

    (5) Where a contracting authority retains contract award notices in accordance with paragraph (4)(b), it shall send those contract award notices to the Official Journal not later than 48 days after the end of each period of 3 months.

    (6) A contracting authority which has awarded a Part B services contract shall state in the contract award notice whether or not it agrees to its publication.

Information about contract award procedures
     32. —(1) Subject to paragraph (13), a contracting authority shall as soon as possible after the decision has been made, inform any economic operator which submitted an offer, applied to be included amongst the economic operators to be selected to tender for or to negotiate the contract, or applied to be party to a framework agreement, of its decision in relation to–

(a) the award of a contract; or

(b) the conclusion of the framework agreement;

and shall do so by notice in writing by the most rapid means of communication practicable.

(2) The notice referred to in paragraph (1) shall include–

(a) the criteria for the award of the contract; or

(b) where practicable, the score obtained by–

(c) the name of the economic operator–

(a) inform that economic operator of the reasons why it was unsuccessful; and

(b) if the economic operator submitted an admissible tender, the contracting authority shall inform that economic operator of the characteristics and relative advantages of the successful tender and–

(10) The reasons referred to in paragraph (9)(a) shall include any reason for the contracting authority's decision that the economic operator did not meet the technical specifications–

(a) as specified in regulation 9(6) by an equivalent means; or

(b) in terms of the performance or functional requirements in regulation 9(7) by an equivalent means.

(11) Subject to paragraph (13), a contracting authority shall as soon as possible after the decision has been made, inform any economic operator which submitted an offer, which applied to be included amongst the economic operators to be selected to tender for, to negotiate the contract or to be admitted to a dynamic purchasing system, of its decision to abandon or to recommence a contract award procedure in respect of which a contract notice has been published, in relation to–

(a) the award of a contract;

(b) the conclusion of a framework agreement; or

(c) admittance to a dynamic purchasing system.

(12) A contracting authority which informs an economic operator of its decision in accordance with paragraph (11) shall–

(a) include the reasons for the decision; and

(b) provide the decision and reasons in writing if requested by the economic operator.

(13) A contracting authority may withhold any information to be provided in accordance with paragraph (1), (4), (8), (9) or (11) where the disclosure of such information–

(a) would impede law enforcement;

(b) would otherwise be contrary to the public interest;

(c) would prejudice the legitimate commercial interests of any economic operator; or

(d) might prejudice fair competition between economic operators.

(14) A contracting authority shall prepare a record in relation to each public contract awarded by it, framework agreement concluded by it or dynamic purchasing system established by it, specifying–

(a) the name and address of the contracting authority;

(b) the value of the consideration to be given under the contract, framework agreement or dynamic purchasing system and–

(c) where offers were evaluated in accordance with regulation 30, the names of the economic operators which submitted those offers and where the contracting authority has used the restricted procedure or negotiated procedure, the reasons why those economic operators were selected;

(d) the name of any economic operator–

(e) the names of the economic operators which were unsuccessful in the circumstances referred to in regulation 15(11), 16(7), 16(8), 17(9), 17(10), 18(10), 18(11), 20(8) or 30 and the reasons why they were unsuccessful;

(f) if known to the contracting authority, the parts of the contract or framework agreement that the economic operator to which the contract has been awarded or with which the framework agreement has been concluded, intends to sub contract to another economic operator;

(g) in the case of a contracting authority which used the negotiated procedure, which of the circumstances specified in regulation 13 or 14 constituted grounds for using that procedure;

(h) in the case of a contracting authority which used the competitive dialogue procedure, details of the circumstances which constituted grounds for using that procedure in accordance with regulation 18(2); and

(i) where a contracting authority has abandoned a contract award procedure, the conclusion of a framework agreement or the establishment of a dynamic purchasing system, the reasons why the contracting authority has decided not to award the contract, to conclude the framework agreement or to establish the dynamic purchasing system as the case may be.

(15) A contracting authority shall keep appropriate information to document the progress of contract award procedures conducted by electronic means.

(16) If the Commission requests a report containing the information specified in paragraph (14), the contracting authority shall send a written report containing that information, or the main features of it, to the Scottish Ministers for onward transmission to the Commission.

PART 6
SPECIALISED CONTRACTS
Design contests
33. —(1) A contracting authority which organises a design contest–

    (2) This regulation applies to a design contest if it is organised as part of a procedure leading to the award of a public services contract whose estimated value (net of value added tax and including the value of any prizes or payments) is not less than the relevant threshold described in paragraphs (4) and (5).

    (3) This regulation applies to a design contest whether or not it is organised as part of a procedure leading to the award of a public services contract if the aggregate value of the prizes or payments for the contest, including the estimated value (net of value added tax) of the contract which might subsequently be awarded in accordance with regulation 14(1)(c) (provided that the contracting authority does not exclude such an award), is not less than the relevant threshold described in paragraphs (4) and (5).

    (4) Subject to paragraph (5), the relevant threshold for the purposes of paragraphs (2) and (3) is–

(5) For the purposes of paragraphs (2) and (3), the relevant threshold is 211,000 euro in the case of a public services contract which is–

(6) This regulation does not apply to a design contest–

(e) which is otherwise excluded from the scope of these Regulations.

    (7) The contracting authority shall publicise its intention to hold a design contest by sending to the Official Journal a notice in the form of the design contest notice in Annex XII to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified.

    (8) The contracting authority shall make the rules of the design contest available to economic operators which wish to participate in the contest.

    (9) Regulations 28(2) and 29 apply to design contests as they apply to the seeking of offers in relation to a proposed public contract.

    (10) Regulation 42(1)(b) to (8) applies to notices relating to design contests as they apply to notices in relation to a proposed public contract.

    (11) Regulation 44(1), (2) and (4) applies to all communications relating to design contests as they apply to a proposed public contract.

    (12) The contracting authority shall ensure that the specified means of communication and the of information storage enables–

(13) Where the contracting authority requires that proposals are to be received by electronic means, it shall ensure that–

(14) Where the contracting authority restricts the number of economic operators in the design contest, it shall–

(15) A contracting authority shall ensure that–

(g) the jury may invite the economic operators to answer any questions to clarify issues noted in the minutes referred to in sub paragraph (f) and shall record complete minutes of any such communications with economic operators.

    (16) The contracting authority shall, not later than 48 days after the date the jury makes its selection, publicise the results of the design contest by sending to the Official Journal a notice in the form of the notice of the results of a design contest in Annex XIII to Commission Regulation (EC) No. 1564/2005 and including the information therein specified.

    (17) The contracting authority shall retain evidence of the date of despatch to the Official Journal of each notice.

    (18) Any of the information specified in the form of the notice referred to in paragraph (16) to be included in that notice may be omitted in a particular case where to publish such information—

Subsidised public works contracts and public services contracts
34. —(1) Where–

(a) a contracting authority undertakes to contribute more than half of the consideration to be or expected to be paid under a contract to which this paragraph applies by virtue of paragraph (2); and

(b) the contract has been or is to be entered into by a person other than another contracting authority (in this regulation referred to as "the subsidised body"), that contracting authority shall–

(2) Paragraph (1) applies to a contract which, if the subsidised body were a contracting authority, would be

(a) a public works contract to which these Regulations apply by virtue of regulation 8 and which is for the carrying out of–

(b) a public services contract to which these Regulations apply by virtue of regulation 8 for providing services in connection with a contract referred to in sub paragraph (a) of this paragraph.

Subsidised housing scheme works contracts
     35. —(1) For the purpose of seeking offers in relation to a subsidised housing scheme works contract to which the circumstances of paragraph (2) apply, a contracting authority may, except as indicated in the following paragraphs, depart from the provisions of these Regulations insofar as it is necessary to do so to select the contractor which is most suitable for integration into the team referred to in paragraph (2).

    (2) The circumstances referred to in paragraph (1) are where the size and complexity of the scheme and the estimated duration of the works involved require that the planning of the scheme be based from the outset on a close collaboration of a team comprising representatives of the contracting authority, experts and the contractor.

    (3) The contracting authority shall comply with the provisions of–

(a) regulations 4(3), 11, 31, 32, 42 and 44; and

(b) the time limits referred to in regulations 15, 16, 17 and 18.

    (4) The contracting authority shall include in the contract notice a job description which is as accurate as possible so as to enable contractors to form a valid idea of the scheme and of the minimum standards relating to the business or professional status, the economic and financial standing, the technical ability and any quality assurance standards which the contractor awarded the contract will be expected to fulfil in accordance with regulations 23, 24, 25 and 26.

Public works concession contracts
     36. —(1) A contracting authority seeking offers in relation to a public works concession contract shall comply with this regulation.

    (2) These Regulations do not apply to the seeking of offers in relation to a proposed public works concession contract where the estimated value of the contract (net of value added tax) at the relevant time is less than 5,278,000 euro.

    (3) In this regulation "relevant time" has the same meaning it has in regulation 8(20).

    (4) The estimated value of a public works concession contract for the purposes of paragraph (2) shall be 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 propose to grant a concession.

    (5) The value of the consideration under a public works concession contract shall be calculated in accordance with regulation 8(6).

    (6) These Regulations shall not apply to the seeking of offers in relation to a proposed public works concession contract–

(a) where–

(b) where the principal purpose of the contract is to permit the contracting authority to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services;

(c) which is classified as secret or where the performance of the contract must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom require it;

(d) where Article 296 of the EC Treaty applies to that public works concession contract;

(e) where different procedures govern the procedures leading to the award of the contract and it is to be entered into in accordance with–

(f) subject to paragraph (7), when a contracting authority wants an economic operator which has entered into a public works concession contract with the contracting authority to carry out additional work or works which were not included in the project initially considered or in the original public works concession contract but which through unforeseen circumstances have become necessary, and such work or works–

(7) Paragraph (6)(f) does not apply where the aggregate value of the consideration to be given under contracts for the additional work or works exceeds 50% of the value of the consideration payable under the original contract.

(8) The contracting authority shall–

(a) publicise its intention to seek offers in relation to the public works concession contract by sending to the Official Journal as soon as possible after forming the intention a notice in the form of the public works concession contract notice in Annex X to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified and any other information which the contracting authority considers useful; and

(b) comply with regulation 42 in relation to a public works concession contract notice as it would comply in relation to a proposed public contract.

    (9) Subject to paragraphs (10) and (13), the date which the contracting authority fixes as the last date for the receipt by it of tenders or of requests to be selected to tender for or to negotiate the contract, shall be specified in the contract notice and shall be not less than 52 days from the date of despatch of the notice.

    (10) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (9) may be reduced by 7 days.

    (11) The contracting authority shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator provided that the documents are requested in good time and any fee specified in the contract notice has accompanied the request.

    (12) The contracting authority shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the contracting authority to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (13) The contracting authority shall extend the time limit for the receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraphs (11) and (12) and, for whatever reason, the contract documents are not supplied in accordance with those paragraphs; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

Sub contracting the work or works to be carried out under a public works concession contract
37. —(1) A contracting authority seeking offers in relation to a public works concession contract shall either–

(a) include in the invitation to tender for, to apply to be selected to tender for or to negotiate, the concession contract, a request that the economic operator specify whether it would intend, if awarded the concession contract, to sub contract to economic operators which are not related to it–

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

(2) Where the concessionaire is a contracting authority, that contracting authority shall comply with the provisions of these Regulations in respect of any public works contract in relation to which it seeks offers 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 its intention to seek offers in relation to any contract to which this paragraph applies by virtue of paragraph (4) by sending to the Official Journal as soon as possible after forming the intention a notice in the form of the contract notice for contracts to be awarded by a concessionaire in Annex XI to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified and any other information which the concessionaire considers useful;

(b) comply with regulation 42 in relation to that contract notice as if the concessionaire were a contracting authority; and

(c) subject to paragraphs (5), (6) and (9)–

(4) Paragraph (3) 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 concessionaire does not intend to enter into with an economic operator related to it; and

(c) which would, if the concessionaire were a contracting authority, be a public works contract, other than a public works contract–

(5) Where the concessionaire has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limits referred to in paragraph (3)(c) may be reduced by 7 days.

(6) The concessionaire may reduce the time limits for the receipt of tenders by 5 days provided that–

(a) the concessionaire offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub paragraph (a) are available.

    (7) The concessionaire shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator provided that the documents are requested in good time and any fee specified in the contract notice has accompanied the request.

    (8) The concessionaire shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the concessionaire to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (9) The concessionaire shall extend the time limit for the receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

(a) an economic operator requests the contract documents in sufficient time to allow the concessionaire to respond in accordance with paragraphs (7) and (8) and, for whatever reason, the contract documents are not supplied by that date; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

(10) The concessionaire may combine the reduction in the periods of time referred to in paragraphs (5) and (6).

(11) In this regulation an economic operator is to be treated as related to another economic operator–

(a) if one economic operator exercises, directly or indirectly, a dominant influence over the other; or

(b) if both those economic operators are subject to the dominant influence of another economic operator.

(12) An economic operator shall be taken to exercise a dominant influence over another economic operator within the meaning of paragraph (11)–

(a) if it possesses the greater part of the issued share capital of that economic operator or controls the voting power attached to such greater part; or

(b) if it may appoint more than half of the individuals which are ultimately responsible for managing that economic operator's affairs.

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

PART 7
MATTERS RELATING TO A PUBLIC CONTRACT
Obligations relating to taxes, environmental protection, employment protection and working conditions
38. —(1) A contracting authority may include in the contract documents relating to a public works contract or to a public services contract information as to where a contractor or services provider may obtain information about the obligations relating to taxes, environmental protection, employment protection and working conditions which will apply to–

(2) A contracting authority which provides the information referred to in paragraph (1) shall request contractors or services providers to indicate that they have taken account of the obligations relating to those employment protection provisions and those working conditions in preparing their tender or in negotiating the contract.

Conditions for performance of contracts
39. —(1) A contracting authority may stipulate conditions relating to the performance of a public contract, provided that those conditions are compatible with Community law and are indicated in–

(a) the contract notice and the contract documents; or

(b) the contract documents.

(2) The conditions referred to in paragraph (1) may, in particular, include social and environmental considerations.

PART 8
MISCELLANEOUS
Statistical and other reports
40. —(1) Subject to regulation 41, a contracting authority shall, not later than 31st July in each year, send to the Scottish Ministers a report specifying in relation to each public contract awarded by it or framework agreement concluded by it during the reporting period–

(g) the nationality of the economic operator to which the contract was awarded or the framework agreement was concluded and the relevant State in which that economic operator is established.

    (2) Subject to regulation 41, a contracting authority shall send to the Scottish Ministers a report containing such other information as the Scottish Ministers may from time to time require in respect of a particular public contract or framework agreement (including a public contract or framework agreement which is excluded from the application of these Regulations by regulation 6 or 8) for the purposes of providing the Commission with information.

    (3) In this regulation "the reporting period" means the year preceding the year in which the reports referred to in paragraph (1) are to be made.

Provision of reports
     41. —(1) Where a contracting authority is a Scottish public authority it shall send the report to the Scottish Ministers otherwise it shall send the report to the Minister responsible for that contracting authority and that Minister shall be responsible for sending the report to the Office of Government Commerce.

    (2) The Minister responsible for a contracting authority shall be the Minister of the Crown whose areas of responsibility are most closely connected with the functions of the contracting authority.

    (3) Any question as to which Minister of the Crown's areas of responsibility are most closely connected with the functions of a contracting authority in accordance with paragraph (2) shall be determined by the Office of Government Commerce whose determination shall be final.

    (4) The requirement on a contracting authority to send any report in accordance with paragraph (1) to the Minister of the Crown responsible for that contracting authority shall be enforceable, on the application of the Minister responsible to the Court of Session by specific implement or the High Court in England and Wales or Northern Ireland, by mandatory order.

Publication of notices
     42. —(1) Any notice required by these Regulations to be sent to the Official Journal shall be–

(a) in the correct format and contain the necessary information specified by Commission Regulation (EC) No. 1564/2005 and contain any other information which the contracting authority considers useful; and

(b) subject to paragraph (2), sent to the Office for Official Publications of the European Union by electronic means in the format and in accordance with the procedures specified in paragraph (3) of Annex VIII to the Public Sector Directive or by other means.

    (2) Where the contracting authority is applying the restricted procedure or the negotiated procedure and, for reasons of urgency, is applying the provisions of regulation 16(6), 16(17) or 17(8) the notice shall be sent by facsimile or by electronic means in the format and in accordance with the procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive.

    (3) Where a notice is not sent by electronic means in accordance with paragraph (1)(b) or (2), it shall not contain more than 650 words.

    (4) The contracting authority shall not place a notice in any publication–

(a) before the date on which the notice is despatched in accordance with paragraph (1)(b) or (2); or

(b) which contains any additional information to that contained in the notice despatched in accordance with paragraph (1)(b) or (2) or published on the contracting authority's buyer profile in accordance with regulation 11(1).

    (5) The contracting authority shall refer in the notice to the date of despatch of that notice to the Official Journal or the date of its publication on its buyer profile where it publishes a notice in the circumstances referred to in paragraph (4).

    (6) The contracting authority shall not publish a prior information notice on its buyer profile before the date on which notice of its publication in that form is despatched to the Commission in accordance with regulation 11(3) and the contracting authority shall refer to the date of that despatch on its buyer profile.

    (7) The contracting authority shall retain evidence of the date of despatch to the Official Journal of each notice.

    (8) Where the contracting authority is not required to send a contract notice to the Official Journal in respect of a particular public contract or framework agreement it may nevertheless publish such a notice in accordance with the provisions of this regulation.

Confidentiality of information
     43. —(1) Subject to the provisions of these Regulations, a contracting authority shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.

    (2) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders.

Means of communication
     44. —(1) A contracting authority may specify that any communication referred to in these Regulations may be made–

(a) by post;

(b) by facsimile;

(c) by electronic means in accordance with paragraphs (4) and (5);

(d) by telephone in the circumstances referred to in paragraph (8); or

(e) by a combination of the means of communication.

(2) The means of communication specified by a contracting authority shall be generally available and shall not restrict economic operators' access to the contract award procedures specified in these Regulations.

(3) A contracting authority shall ensure that the specified means of communication and the storage of information enables–

(a) the integrity of data provided by economic operators and the confidentiality of tenders and requests to be selected to tender for or to negotiate the contract to be maintained; and

(b) tenders and requests to be selected to tender for or to negotiate the contract to be opened only after the time limit for their submission has expired.

(4) The equipment used for communications made by electronic means shall be–

(a) non discriminatory;

(b) generally available; and

(c) interoperable with information and communication technology products in general use.

(5) Where a contracting authority requires that tenders and requests to be selected to tender for or to negotiate the contract are to be transmitted by electronic means, it shall ensure that–

(a) details of the equipment including any software which is necessary for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract, including encryption, are available to all interested economic operators; and

(b) the equipment for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract complies with the requirements of paragraph (6).

(6) The requirements referred to in paragraph (5)(b) are–

(a) electronic signatures relating to tenders and requests to participate shall comply with national provisions adopted in accordance with Directive 1999/93/EC of the European Parliament and of the Council of 13th December 1999 on a Community framework for electronic signatures[

40

(d) only authorised persons shall set or change the dates for opening data received from economic operators;

(e) access to any data shall be possible only through simultaneous action by authorised persons and only after the prescribed date; and

(f) data received and opened in accordance with these requirements must remain accessible only to authorised persons.

(7) A contracting authority may require any documents, certificates and declarations referred to in regulations 23, 24, 25, 26 and 27 which do not exist in electronic format to be submitted before the time limit has expired for the receipt by it of tenders or requests to be selected to tender for or to negotiate the contract.

(8) Requests to be selected to tender for or to negotiate the contract may be made–

(9) Where a request to be selected to tender for or to negotiate the contract is made by telephone, an economic operator shall confirm the request in writing before the deadline for receipt of such requests has expired.

(10) Where a request to be selected to tender for or to negotiate the contract is made by facsimile, a contracting authority–

Sub-contracting
45. A contracting authority may require an economic operator to indicate in its tender–

(a) any part of the contract that the economic operator intends to sub contract to any other person; and

(b) the identity of any person to whom that economic operator proposes to sub contract any part of the contract.

Public service bodies
46. —(1) Where a contracting authority, other than one which is a contracting authority only by reason of being a Schedule 1 entity, grants to a person other than a contracting authority, special or exclusive rights to carry on a service for the benefit of the public, it shall impose an express duty on that person in the terms referred to in paragraph (2).

(2) The duty referred to in paragraph (1) is a duty not to discriminate in seeking offers in relation to, or in awarding, a contract for the purchase or hire of goods on the grounds–

(a) of nationality, against a person who is a national of a relevant State and established in a relevant State; or

(b) that the goods to be supplied under the contract originate in another relevant State.

PART 9
APPLICATIONS TO THE COURT
Enforcement of obligations
47. —(1) The obligation on–

is a duty owed to an economic operator.

(2) The duty owed to an economic operator in accordance with paragraph (1), except in relation to–

is a duty owed also to a GPA economic operator.

    (3) The duty owed to a GPA economic operator referred to in paragraph (2) shall only be owed by the Secretary of State for Defence in relation to public supply contracts for the purchase or hire of goods specified in Schedule 5.

    (4) References to an "economic operator" in paragraphs (6), (7) and (8) shall be construed as including a reference to a GPA economic operator.

    (5) In this regulation and notwithstanding regulation 4, references to an "economic operator" include, where the duty owed in accordance with paragraph (1) is the obligation on a concessionaire to comply with regulation 37(3), any person–

(6) A breach of the duty owed in accordance with paragraph (1) or (2) shall be actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the sheriff court, the Court of Session, or in England and Wales and Northern Ireland, the High Court.

(7) Proceedings under this regulation may not be brought unless–

(8) Subject to paragraph (9), but otherwise without prejudice to any other powers of the Court, in proceedings brought under this regulation the Court may–

    (9) In proceedings under this regulation the Court shall not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) or (2) if the contract in relation to which the breach occurred has been entered into.

    (10) Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947[41], in proceedings brought under this regulation against the Crown the Court shall have power to grant an interim order.

    (11) In this regulation

"GPA economic operator" means a person from a GPA State who sought, who seeks, or would have wished, to be the person to whom the contract is awarded;

42

"relevant time" means the date on which the contracting authority would have sent a contract notice in respect of the contract to the Official Journal if it had been required by these Regulations to do so.

PART 10
REPEALS, REVOCATIONS, SAVINGS, TRANSITIONAL PROVISIONS
Repeals and revocations
48. Subject to regulation 49–

Savings and transitional provisions
49. —(1) Where a contracting authority has commenced a contract award procedure or design contest before 31st January 2006, the Regulations specified in paragraph (4) shall continue to have effect on and after 31st January 2006 in relation to that contract award procedure, as if those Regulations had not been revoked in accordance with regulation 48.

(2) A contracting authority has commenced a contract award procedure as referred to in paragraph (1) where before 31st January 2006, in relation to that procedure–

(a) that contracting authority has sent a contract notice to the Official Journal in accordance with the specified Regulations in order to invite offers, requests to be selected to tender for or to negotiate in respect of a proposed public contract;

(b) in any case where there is no requirement to send a contract notice to the Official Journal in accordance with the specified Regulations, that contracting authority has despatched any form of advertisement seeking offers or expressions of interest in a proposed public contract;

(c) where there is no advertising as referred to in sub paragraph (a) or (b), that contracting authority has contacted any economic operator in order to seek expressions of interest or offers in respect of a proposed public contract; or

(d) that contracting authority has sent a notice to the Official Journal in accordance with the specified Regulations in order to hold a design contest.

(3) Where a framework agreement has been concluded before 31st January 2006, these Regulations do not apply to the award of any specific contract under that framework agreement.

(4) In this regulation–

(a) "specified Regulations" means–

(i) the Public Works Contracts Regulations 1991[

(b) "contract notice" means a contract notice within the meaning of the Regulations specified in sub paragraphs (i), (ii) and (iii).

TOM McCABE
A member of the Scottish Executive

St Andrew's House, Edinburgh
4th January 2006

SCHEDULE 1Regulation 2(1)

GPA ANNEX 1 CONTRACTING AUTHORITIES

Where an entity listed in this Schedule is succeeded by another entity, which is itself a contracting authority, the successor entity shall be deemed to be included in this Schedule.

Cabinet Office

Office of the Parliamentary Counsel

National School of Government

Central Office of Information

Charity Commission

Department for Constitutional Affairs

Boundary Commission for England

Circuit Offices and Crown, County and Combined Courts (England and Wales)

Combined Tax Tribunal

Council on Tribunals

Court of Appeal- Criminal

Immigration Appellate Authorities

Immigration Adjudicators

Immigration Appeals Tribunal

Lands Tribunal

Law Commission

Legal Aid Fund (England and Wales)

Office of the Social Security Commissioners

Pensions Appeal Tribunals

Public Trust Office

Supreme Court Group (England and Wales)

Transport Tribunal

Department for Culture, Media and Sport

British Library

British Museum

Commission for Architecture and the Built Environment

The Gambling Commission

Historic Buildings and Monuments Commission for England (English Heritage)

Imperial War Museum

Museums, Libraries and Archives Council

National Gallery

National Maritime Museum

National Portrait Gallery

National History Museum

Science Museum

Tate Gallery

Victoria and Albert Museum

Wallace Collection

Crown Prosecution Service

Crown Estate Commissioners (Vote Expenditure Only)

Department for Education and Skills

Higher Education Funding Council for England

Department for Environment, Food and Rural Affairs

Agricultural Dwelling House Advisory Committees

Agricultural Land Tribunals

Agricultural Wages Board and Committees

Cattle Breeding Centre

Countryside Agency

Plant Variety Rights Office

Royal Botanic Gardens, Kew

Royal Commission on Environmental Pollution

Department of Health

Dental Practice Board

National Health Service Strategic Health Authorities

NHS Trusts

Prescription Pricing Authority

Department for International Development

Department for Transport

Maritime and Coastguard Agency

Department of the Procurator General and Treasury Solicitor

Legal Secretariat to the Law Officers

Department of Trade and Industry

Central Transport Consultative Committees

Competition Commission

Electricity Committees

Employment Appeal Tribunal

Employment Tribunals

Gas Consumers' Council

National Weights and Measures Laboratory

Office of Manpower Economics

Patent Office

Department for Work and Pensions

Disability Living Allowance Advisory Board

Independent Tribunal Service

Medical Boards and Examining Medical Officers (War Pensions)

Occupational Pensions Regulatory Authority

Regional Medical Service

Social Security Advisory Committee

Export Credits Guarantee Department

Foreign and Commonwealth Office

Wilton Park Conference Centre

Government Actuary's Department

Government Communications Headquarters

Home Office

HM Inspectors of Constabulary

Parole Board and Local Review Committees

House of Commons

House of Lords

Ministry of Defence

Meteorological Office

Defence Procurement Agency

National Archives

National Assembly for Wales

Higher Education Funding Council for Wales

Local Government Boundary Commission for Wales

Royal Commission for Ancient and Historical Monuments in Wales

Valuation Tribunals (Wales)

Welsh National Health Service Authorities and Trusts

Welsh Rent Assessment Panels

National Audit Office

National Savings and Investments

Northern Ireland Assembly Commission

Northern Ireland Court Service

Coroners Courts

County Courts

Court of Appeal and High Court of Justice in Northern Ireland

Crown Court

Enforcement of Judgements Office

Legal Aid Fund

Magistrates' Courts

Pensions Appeals Tribunals

Northern Ireland, Department for Employment and Learning

Northern Ireland, Department for Regional Development

Northern Ireland, Department for Social Development

Northern Ireland, Department of Agricultural and Rural Development

Northern Ireland, Department of Culture, Arts and Leisure

Northern Ireland, Department of Education

Northern Ireland, Department of Enterprise, Trade and Investment

Northern Ireland, Department of the Environment

Northern Ireland, Department of Finance and Personnel

Northern Ireland, Department of Health, Social Services and Public Safety

Northern Ireland, Office of the First Minister and Deputy First Minister

Northern Ireland Office

Crown Solicitor's Office

Department of the Director of Public Prosecutions for Northern Ireland

Forensic Science Laboratory of Northern Ireland

Office of the Chief Electoral Officer for Northern Ireland

Police Service of Northern Ireland

Probation Board for Northern Ireland

State Pathologist Service

Office of the Deputy Prime Minister

Rent Assessment Panels

Office of Fair Trading

Office for National Statistics

National Health Service Central Register

Office of the Parliamentary Commissioner for Administration and Health Service Commissioners

Paymaster General's Office

Postal Business of the Post Office

Privy Council Office

Public Record Office

Royal Hospital, Chelsea

Royal Mint

Rural Payments Agency

Scotland, Auditor-General

Scotland, Crown Office and Procurator Fiscal Service

Scotland, General Register Office

Scotland, Queen's and Lord Treasurer's Remembrancer

Scotland, Registers of Scotland

The Scotland Office

The Scottish Ministers

Architecture and Design Scotland

Crofters Commission

Deer Commission for Scotland

Lands Tribunal for Scotland

National Galleries of Scotland

National Library of Scotland

National Museums of Scotland

Royal Botanic Garden Edinburgh

Royal Commission on the Ancient and Historical Monuments of Scotland

Scottish Further and Higher Education Funding Council

Scottish Law Commission

Local Health Councils

The NHS Education for Scotland Board

Scottish Council for Postgraduate Medical and Dental Education

Scottish National Health Service Authorities and Trusts

The Office of the Accountant of Court

High Court of Justiciary

Court of Session

HM Inspectorate of Constabulary

Parole Board for Scotland and Local Review Committees

Pensions Appeal Tribunals

Scottish Land Court

Sheriff Courts

Scottish Criminal Record Office

Scottish Crime Squad

Scottish Fire Service Training Squad

Scottish Police College

Office of the Social Security Commissioners

Rent Assessment Panel and Committees

The Scottish Parliamentary Corporate Body

Scottish Record Office

HM Revenue and Customs

The Revenue and Customs Prosecutions Office

HM Treasury

Office of Government Commerce

United Kingdom Debt Management Office

The Wales Office (Office of the Secretary of State for Wales)

SCHEDULE 2Regulation 2(1)

ACTIVITIES CONSTITUTING WORKS

Section F				Construction
Division	Group	Class	Subject	Notes	CPV Code
45			Construction	Construction of new buildings and works, restoring and common repairs	45000000
	45.1		Site preparation		45100000
		45.11	Demolition and wrecking of buildings; earth moving	Demolition of buildings and other structures Clearing of building sites Earth moving; excavation, landfill, levelling and grading of construction sites, trench digging, rock removal, blasting, etc. Site preparation for mining: overburden removal and other development and preparation of mineral properties and sites Building site drainage Drainage of agricultural or forestry land	45110000
		45.12	Test drilling and boring	Test drilling, test boring and core sampling for construction, geophysical, geological or similar purposes	45120000
	45.2		Building of complete constructions or parts thereof; civil engineering		45200000
		45.21	General construction of buildings and civil engineering works	Construction of all types of buildings Construction of civil engineering constructions Bridges, including those for elevated highways, viaducts, tunnels and subways Long-distance pipelines, communication and power lines Urban pipelines, urban communication and powerlines Ancillary urban works Assembly and erection of prefabricated constructions on the site	45210000
		45.22	Erection of roof coverings and frames	Erection of roofs Roof covering Waterproofing	45220000
		45.23	Construction of highways, roads, airfields and sport facilities	Construction of highways, streets, roads, other vehicular and pedestrian ways Construction of railways Construction of airfield runways Construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations Paintings of markings on road surfaces and car parks	45230000
		45.24	Construction of water projects	Construction of Waterways, harbour and river works, pleasure ports (marinas), locks, etc. Dams and dykes dredging Subsurface work	45240000
		45.25	Other construction work involving special trades	Construction activities specialising in one aspect common to different kinds of structures, requiring specialised skill or equipment Construction of foundations, including pile driving Water well drilling and construction, shaft sinking Erection of non self manufactured steel elements Steel bending Bricklaying and stone setting Scaffolds and work platform erecting and dismantling, including renting of scaffolds and work platforms; Erection of chimneys and industrial ovens	45250000
	45.3		Building installation		45300000
		45.31	Installation of electrical wiring and fittings	Installation in buildings or other construction projects of: Electrical wiring and fittings Telecommunications systems Electrical heating systems Residential antennas and aerials Fire alarms Burglar alarm systems Lifts and escalators Lightening conductors, etc.	45310000
		45.32	Insulation work activities	Installation in buildings or other construction projects of thermal, sound or vibration insulation	45320000
		45.33	Plumbing	Installation in buildings or other construction projects of: Plumbing and sanitary equipment Gas fittings Heating, ventilation, refrigeration or airconditioning equipment and ducts Sprinkler systems	45330000
		45.34	Other building installation	Installation of illumination and signalling systems for roads, railways, airports and harbours Installation in buildings or other construction projects of fittings and fixtures n.e.c	45340000
	45.4		Building completion		45400000
		45.41	Plastering	Application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials	45410000
		45.42	Joinery installation	Installation of non self manufactured doors, windows, door and window frames, fitted kitchens, staircases, shop fittings and the like, of wood or other materials Interior completion such as ceilings, wooden wall coverings, movable partitions, etc.	45420000
		45.43	Floor and wall covering	Laying, tiling, hanging or fitting in buildings or other construction projects of: Ceramic, concrete or cut stone wall or floor tiles Parquet and other wood floor coverings carpets and linoleum floor coverings carpets and linoleum floor coverings, including of rubber or plastic Terrazzo, marble, granite or slate floor or wall coverings Wallpaper	45430000
		45.44	Painting and glazing	Interior and exterior painting of buildings Painting of civil engineering structures Installation of glass, mirrors etc	45440000
		45.45	Other building completion	Installation of private swimming pools steam cleaning, sand blasting and similar activities for building exteriors Other building completion and finishing work n.e.c	45450000
	45.5		Renting of construction or demolition equipment with operator		45500000
		45.50	Renting of construction or demolition equipment with operator		45500000

SCHEDULE 3Regulation 2(2)

CATEGORIES OF SERVICES

Part A

Category	Services	CPC Reference No	CPV Code
1	Maintenance and repair of vehicles and equipment	6112, 6122, 633, 886	from 50100000 to 50982000 (except for 50310000 to 50324200 and 50116510-9, 50190000-3, 50229000-6, 50243000-0)
2	Transport by land, including armoured car services and courier services but not including transport of mail and transport by rail	712 (except 71235), 7512, 87304	from 60112000-6 to 60129300-1 (except 60121000 to 60121600, 60122200-1, 60122230-0), and from 64120000-3 to 64121200-2
3	Transport by air but not transport of mail	73 (except 7321)	from 62100000-3 to 62300000-5 (except 62121000-6, 62221000-7)
4	Transport of mail by land, other than by rail, and by air	71235, 7321	60122200-1, 60122230-0 62121000-6, 62221000-7
5	Telecommunications services	752	from 64200000-8 to 64228200-2, 72318000-7, and from 72530000-9 to 72532000-3
6	Financial services: (a) Insurance services (b) Banking and investment services other than financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments and central bank services	Ex 81, 812, 814	from 66100000-1 to 66430000-3 and from 67110000-1 to 67262000-1
7	Computer and related services	84	from 50300000-8 to 50324200-4, from 72100000-6 to 72591000-4 (except 72318000-7 and from 72530000-9 to 72532000-3)
8	Research and Development services where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs and the services are to be wholly paid for by the contracting authority	85	from 73000000-2 to 73300000-5 (except 73200000-4, 73210000-7, 7322000-0)
9	Accounting, auditing and book-keeping services	862	from 74121000-3 to 74121250-0
10	Market research and public opinion polling services	864	from 74130000-9 to 74133000-0, and 74423100-1, 74423110-4
11	Management consultancy services and related services, but not arbitration and conciliation services	865, 866	from 73200000-4 to 73220000-0, from 74140000-2 to 74150000-5 (except 74142200-8), and 74420000-9, 74421000-6, 74423000-0, 74423200-2, 74423210-5, 74871000-5, 93620000-0
12	Architectural services: engineering services and integrated engineering services: urban planning and landscape architectural services: related scientific and technical consulting services: technical testing and analysis services	867	from 74200000-1 to 74200000-1 to 74276400-8, and from 74310000-5 to 74323100-0, and 74874000-6
13	Advertising services	871	from 74400000-3 to 74422000-3 (except 74420000-9 and 74421000-6)
14	Building-cleaning services and property management services	874, 82201 to 82206	from 70300000-4 to 70340000-6, and 74710000-9 to 74760000-4
15	Publishing and printing services on a fee or contract basis	88442	from 78000000-7 to 78400000-1
16	Sewerage and refuse disposal service: sanitation and similar services	94	FROM 90100000-8 TO 903200000 6, AND 50190000 3, 50229000 6, 50243000 0

Part B

Category	Services	CPC Reference No	CPV Code
17	Hotel and restaurant services	64	from 55000000 0 to 55524000 9, and from 93400000-2 to 93411000-2
18	Transport by rail	711	60111000-9, and from 60121000-2 to 60121600-8
19	Transport by water	72	from 61000000-5 to 61530000-9, and from 63370000-3 to 63372000-7
20	Supporting and auxiliary transport services	74	62400000-6, 62440000-8, 62441000-5, 62450000-1, from 63000000-9 to 63600000-5 (except 63370000-3, 63371000-0, 63372000-7), and 74322000-2, 93610000-7
21	Legal services	861	from 74110000-3 to 74114000-1
22	Personnel placement and supply services	872	from 74500000-4 to 74540000-6 (except 74511000-4), and from 95000000-2 to 95140000-5
23	Investigation and security services, other than armoured car services	873 (except 87304)	from 74600000-5 to 74620000-1
24	Education and vocational health services	92	from 80100000-5 to 80430000-7
25	Health and social services	93	74511000-4, and from 85000000-9 to 85323000-9 (except 85321000-5 and 85322000-2)
26	Recreational, cultural and sporting services	96	from 74875000-3 to 74875200-5, and from 92000000-1 to 92622000-7 (except 92230000-2)
27	Other services

SCHEDULE 4Regulations 2(1) and 4(4)

EXTENSION TO NON-MEMBER STATES

Relevant States	Agreement with the European Union which extends the provisions relating to public procurement to the relevant State	Statutory provisions designating the agreements as European Treaties
1. Bulgaria	Europe Agreement[48]	S.I. 1994/758.
2. Iceland	European Economic Area Agreement[49]	European Economic Area Act 1993[50], section 1.
3. Liechtenstein	European Economic Area Agreement	European Economic Area Act 1993, section 1.
4 Norway	European Economic Area Agreement	European Economic Area Act 1993, section 1.
5. Romania	Europe Agreement[51]	S.I. 1994/760.

SCHEDULE 5Regulation 8(5)

GOODS FOR THE PURPOSES OF THE THRESHOLDS

The goods for the purpose of regulation 8(5) are those specified in the following chapters for the Customs Co-operation Council Nomenclature (CCCN).

Chapter 25:	Salt; sulphur; earths and stone, plastering materials, lime and cement
Chapter 26:	Metallic ores, slag and ash
Chapter 27:	Mineral fuels, mineral oils and products of their distillation, bituminous substances; mineral waxes except: ex 27.10: special engine fuels
Chapter 28:	Inorganic chemicals, organic and inorganic compounds of precious metals, of rare-earth metals, of radioactive elements and of isotopes except: ex 28.09: explosives ex 28.13: explosives ex 28.14: tear gas ex 28.28: explosives ex 28.32: explosives ex 28.39: explosives ex 28.50: toxic products ex 28.51: toxic products ex 28.54: explosives
Chapter 29:	Organic chemicals except: ex 29.03: explosives ex 29.04: explosives ex 29.07: explosives ex 29.08: explosives ex 29.11: explosives ex 29.12: explosives ex 29.13: toxic products ex 29.14: toxic products ex 29.15: toxic products ex 29.21: toxic products ex 29.22: toxic products ex 29.23: toxic products ex 29.26: explosives ex 29.27: toxic products ex 29.29: explosives
Chapter 30:	Pharmaceutical products
Chapter 31:	Fertilisers
Chapter 32:	Tanning and dyeing extracts, tannings and their derivatives, dyes, colours, paints and varnishes, putty, fillers and stoppings, inks
Chapter 33:	Essential oils and resinoids, parfumery, cosmetic or toilet preparations
Chapter 34:	Soap, organic surface-active agents, washing preparations, lubricating preparations, artificial waxes, prepared waxes, polishing and scouring preparations, candles and similar articles, modelling pastes and ‘dental waxes'
Chapter 35:	Albuminoidal substances, glues, enzymes
Chapter 37:	Photographic and cinematographic goods
Chapter 38:	Miscellaneous chemical products, except: ex 38.19: toxic products
Chapter 39:	Artificial resins and plastic materials, celluloses esters and ethers, articles thereof, except: ex 39.03 explosives
Chapter 40:	Rubber, synthetic rubber, factice, and articles thereof, except: ex 40.11: bullet-proof tyres
Chapter 41:	Raw hides and skins (other than furskins) and leather
Chapter 42:	Articles of leather, saddlery and harness, travel goods, handbags and similar containers, articles of animal gut (other than silkworm gut)
Chapter 43:	Furskins and artificial fur, manufactures thereof
Chapter 44:	Wood and articles of wood, wood charcoal
Chapter 45:	Cork and articles of cork
Chapter 46:	Manufactures of straw of esparto and of other plaiting materials, basketware and wickerwork
Chapter 47:	Paper-making material
Chapter 48:	Paper and paperboard, articles of paper pulp, of paper or of paperboard
Chapter 49:	Printed books, newspapers, pictures and other products of the printing industry, manuscripts, type-scripts and plans
Chapter 65:	Headgear and parts thereof
Chapter 66:	Umbrellas, sunshades, walking-sticks, whips, riding-crops and parts thereof
Chapter 67:	Prepared feathers and down and articles made of feathers or of down, artificial flowers, articles of human hair
Chapter 68:	Articles of stone, of plaster, of cement, of asbestos, of mica and of similar materials
Chapter 69	Ceramic products
Chapter 70:	Glass and glassware
Chapter 71: Pearls, precious and semi-precious stones, precious metals, rolled precious metals, and articles thereof:	imitation jewellery
Chapter 73:	Iron and steel and articles thereof
Chapter 74:	Copper and articles thereof
Chapter 75:	Nickel and articles thereof
Chapter 76:	Aluminium and articles thereof
Chapter 77:	Magnesium and beryllium and articles thereof
Chapter 78:	Lead and articles thereof
Chapter 79:	Zinc and articles thereof
Chapter 80:	Tin and articles thereof
Chapter 81:	Other base metals employed in metallurgy and articles thereof
Chapter 82:	Tools, implements, cutlery, spoons and forks, of base metal, parts thereof, except: ex 82.05: tools ex 82.07: tools, parts
Chapter 83:	Miscellaneous articles of base metal
Chapter 84:	Boilers, machinery and mechanical appliances, parts thereof, except: ex 84.06: engines ex 84.08: other engines ex 84.45: machinery ex 84.53: automatic data-processing machines ex 84.55 parts of machines under heading No 84.53 ex 84.59: nuclear reactors
Chapter 85:	Electrical machinery and equipment, parts thereof, except: ex: 85.13: telecommunication equipment ex: 85.15: transmission apparatus
Chapter 86:	Railway and tramway locomotives, rolling-stock and parts thereof, railway and tramway tracks fixtures and fittings, traffic signalling equipment of all kinds (not electrically powered), except: ex 86.02: armoured locomotives, electric ex 86.03: other armoured locomotives ex 86.05: armoured wagons ex 86.06 repair wagons ex 86.07 wagons
Chapter 87:	Vehicles, other than railway or tramway rolling-stock, and parts thereof, except: ex 87.08: tanks and other armoured vehicles ex 87.01: tractors ex 87.02: military vehicles ex 87.03: breakdown lorries ex 87.09: motorcycles ex 87.14: trailers
Chapter 89:	Ships, boats and floating structures, except: ex 89.01A: warships
Chapter 90:	Optical, photographic, cinematographic, measuring, checking, precision, medical and surgical instruments and apparatus, parts thereof, except: ex 90.05: binoculars ex 90.13: miscellaneous instruments, lasers ex 90.14: telemeters ex 90.28: electrical and electronic measuring instruments ex 90.11: microscopes ex 90.17: medical instruments ex 90.18: mechano-therapy appliances ex 90.19: orthopaedic appliances ex 90.20: X-ray apparatus
Chapter 91:	Manufacture of watches and clocks
Chapter 92:	Musical instruments, sound recorders or reproducers, television image and sound recorders or reproducers, parts and accessories of such articles
Chapter 94:	Furniture and parts thereof, bedding, mattresses, mattress supports, cushions and similar stuffed furnishings, except: ex 94.01A: aircraft seats
Chapter 95:	Articles and manufactures of carving or moulding material
Chapter 96:	Brooms, brushes, powder-puffs and sieves
Chapter 98:	Miscellaneous manufactured articles

SCHEDULE 6Regulation 23(4)(j)

PROFESSIONAL OR TRADE REGISTERS

PUBLIC SERVICES CONTRACTS
1. In relation to procedures for the award of a public services contract, the following are the appropriate professional or trade registers for the purposes of regulation 23(1)(j)–

in Austria, the Firmenbuch, Gewerberegister or Mitgliederverzeichnisse der Landeskammern;

in Belgium, the registre du commerce/Handelsregister or the orders professionels/ beroepsorden;

in Denmark, the Erhvervs- og Selskabstyrelsen;

in Finland, the Kaupparekisteri or Handelsregistret;

in France, the registre du commerce et des societes or the repertoire des metiers;

in Germany, the Handelsregister, the Handwerksrolle,the Verinsregister, Partnerschaftsregister or the Mitgliedsverzeichnisse de Berufskammern der Ländern;

in Iceland, the Firmaskrá or Hlutafélagaskrá;

in Italy, the Registro della Camera di commercio, industria, agricultura e artigianato, the Registro delle commissioni provinciali per l'artiginiato or the Consiglio nazionale degli ordini professionali;

in Luxembourg, the registre aux firmes and the role de la Chambre des metiers;

in the Netherlands, the Handelsregister;

in Norway, the Foretaksregisteret;

in Portugal, the Registo nacional das Pessoas Colectivas;

in Spain, the Registro Oficial de Empresas Clasificadas del Ministerio de Hacienda ; and

in Sweden, the Aktiebolags, Handelsellerföreningsregistret.

PUBLIC WORKS CONTRACTS
2. In relation to procedures for the award of a public works contract the following are the appropriate professional or trade registers for the purposes of regulation 23(1)(j)–

in Austria, the Firmenbuch, the Gewerberegister, the Mitgliederverzeichnisse der Landeskammern;

in Belgium, the Registre du commerce/Handelsregister;

in Denmark, the Erhvervs-og Selskabsstyrelsen;

in Finland, the Kaupparekisteri/Handelsregistret;

in France, the Registre du commerce et des societes or the Repertoire des metiers;

in Germany, the Handelsregister and the Handwerksrolle;

in Greece, the Μητρώο Ερολπτικών Επιχερήσεων ΜΕΕΠ of the Ministry for Environment, Town and Country Planning and Public Works (ΥΠΕΧΩΔΕ);

in Iceland, the Firmaskrá

in Italy, the Registro della Camera di commercio, industria, agricoltura e artigianato;

in Luxembourg, the Registre aux firmes and the Rôle de la chambre des metiers;

in the Netherlands, the Handelsregister;

in Norway, the Foretaksregisteret;

in Portugal, the Instituto dos Mercados de Obras Públicas e Particulares e do Imobiliário (IMOPPI) (CAEOPP);

in Spain, the Registro Official de Empresas Clasificadas del Ministerio de Hacienda; and

in Sweden, aktiebolags-, handels- eller föreningsregistren.

PUBLIC SUPPLY CONTRACTS
3. In relation to procedures for the award of a public supply contract the following are the appropriate professional or trade registers for the purposes of regulation 23(4)(j)–

in Austria, the Firmenbuch, the Gewerberegister, the Mitgliederverzeichnisse der Landeskammern;

in Belgium, the Registre du commerce/Handelsregister;

in Denmark, the Erhvervs-og Selskabsstyrelsen;

in Finland, the Kaupparekisteri/Handelsregistret;

in France, the Registre du commerce et des societés or the Repertoire des métiers;

in Germany, the Handelsregister and the Handwerksrolle;

in Greece, the Βιοτεχνικό ή Εµπορικό ή Βιοµηχανικό Επιµελητήριο

in Iceland, the Firmaskrá;

in Italy, the Registro della Camera di commercio, industria, agricoltura e artigianato and Registro delle commissioni provinciali per l'artigianato;

in Luxembourg, the Registre aux firmes and the Rôle de la chambre des métiers;

in Norway, the Foretaksregisteret;

in the Netherlands, the Handelsregister;

in Portugal, the Registo Nacional das Pessoas Colectivas;

in Spain, the Registro Mercantil; and

in Sweden, aktiebolags-, handels- eller föreningsregistren.

SCHEDULE 7Regulation 48

CONSEQUENTIAL AMENDMENTS, REPEALS AND REVOCATIONS

REPEALS AND REVOCATIONS
ENACTMENTS
European Economic Area Act 1993
1. In paragraph 3 of the Schedule to the European Economic Area Act 1993[52] (limitations on the application of section 2(1)), sub paragraphs (e) and (f) shall cease to have effect.

INSTRUMENTS
2.

Title	Number	Extent of revocation
1	2	3
Public Works Contracts Regulations 1991	S.I. 1991/2680	The whole Regulations.
Public Services Contracts Regulations 1993	S.I. 1993/3228	The whole Regulations.
Public Supply Contracts Regulations 1995	S.I. 1995/201	The whole Regulations.
Local Government (Translation Amendments)(Scotland) Order 1996	S.I. 1996/974	Paragraphs 9 and 11 of Schedule 1.
Secretary of State for Culture, Media and Sport Order 1997	S.I.1997/1744	Paragraph 5 of the Schedule.
Competition Act 1998 (Competition Commission) Transitional, Consequential and Supplemental Provisions Order 1999	S.I. 1999/506	Article 35.
Scotland Act 1998 (Consequential Modifications)(No. 1) Order 1999	S.I. 1999/1042	Paragraphs 20, 21 and 22 of Schedule 1 and paragraph 13 of Schedule 2.
Scotland Act 1998 (Consequential Modifications)(No. 2) Order 1999	S.I. 1999/1820	Paragraphs 148, 153 and 156 of Schedule 2.
Public Contracts (Works, Services and Supply)(Amendment) Regulations 2000	S.I. 2000/2009	The whole Regulations.
Postal Services Act 2000 (Consequential Modifications No. 1) Order 2001	S.I. 2001/1149	Paragraphs 100 and 106 of Schedule 1.
Nursing and Midwifery Order 2001 (Consequential Amendments) Order 2002	S.I. 2002/881	Paragraph 11 of the Schedule.
Public Contracts (Works, Services and Supply) and Utilities Contracts (Amendment) Regulations 2003	S.I. 2003/46	The whole Regulations.
Scottish Public Services Ombudsman Act 2002 (Consequential Modification of Instruments) Order 2003	S.S.I. 2003/242	Articles 2 and 4.