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Statutory Instrument 2006 No. 5
The Public Contracts Regulations 2006
(The document as of February, 2008)
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STATUTORY INSTRUMENTS
2006 No. 5
PUBLIC PROCUREMENT, ENGLAND AND WALES, PUBLIC PROCUREMENT NORTHERN IRELAND
The Public Contracts Regulations 2006
| | Made | 9th January 2006 | | | | Laid before Parliament | 9th January 2006 | | | | Coming into force | 31st January 2006 | |
ARRANGEMENT OF REGULATIONSPART 1GENERAL
| 1. | Citation, commencement and extent |
| 3. | Contracting authorities |
PART 2TECHNICAL SPECIFICATIONS
| 9. | Technical specifications in the contract documents |
PART 3PROCEDURES 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 |
| 16. | The restricted procedure |
| 17. | The negotiated procedure |
| 18. | The competitive dialogue procedure |
| 20. | Dynamic purchasing systems |
| 22. | Central purchasing bodies |
PART 4SELECTION 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 |
PART 5THE AWARD OF A PUBLIC CONTRACT
| 30. | Criteria for the award of a public contract |
| 32. | Information about contract award procedures |
PART 6SPECIALISED CONTRACTS
| 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 7MATTERS RELATING TO A PUBLIC CONTRACT
| 38. | Obligations relating to taxes, environmental protection, employment protection and working conditions |
| 39. | Conditions for performance of contracts |
PART 8MISCELLANEOUS
| 40. | Statistical and other reports |
| 42. | Publication of notices |
| 43. | Confidentiality of information |
| 44. | Means of communication |
PART 9APPLICATIONS TO THE COURT
| 47. | Enforcement of obligations |
PART 10CONSEQUENTIAL AMENDMENTS, REPEALS, REVOCATIONS, SAVINGS AND TRANSITIONAL PROVISIONS
| 48. | Consequential amendments, repeals and revocations |
| 49. | Savings and transitional provisions |
| | SCHEDULE 1— | GPA 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— | CONSEQUENTIAL AMENDMENTS, REPEALS AND REVOCATIONS |
The Treasury, being designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to public procurement, in exercise of the powers conferred upon them by the said section 2(2), make the following Regulations— PART 1GENERALCitation, commencement and extent 1.—(1) These Regulations may be cited as the Public Contracts Regulations 2006 and come into force on 31st January 2006. (2) These Regulations do not extend to Scotland. Interpretation 2.—(1) In these Regulations— "to award" means to accept an offer made in relation to a proposed contract; "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 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— (a) acquires goods or services intended for one or more contracting authorities;
(b) awards public contracts intended for one or more contracting authorities; or
(c) concludes framework agreements for work, works, goods or services intended for one or more contracting authorities;
"the Commission" means the European Commission; "Commission Regulation (EC) No 1564/2005" means Commission Regulation (EC) No 1564/2005 of 7 September 2005[3]; "Common Procurement Vocabulary" means the reference nomenclature applicable to public contracts as adopted by Regulation (EC) No 2195/2002 of 5 November 2002 of the European Parliament and of the Council on the Common Procurement Vocabulary[4]; "competitive dialogue procedure" means a procedure— (a) in which any economic operator may make a request to participate; and
(b) whereby a contracting authority conducts a dialogue with the economic operators admitted to that procedure with the aim of developing one or more suitable alternative solutions capable of meeting its requirements and on the basis of which the economic operators chosen by the contracting authority are invited to tender;
"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— (a) who sought, who seeks, or would have wished, to be the person to whom a public works contract is awarded; and
(b) who is a national of and established in a relevant State;
"CPC" means Central Product Classification of the United Nations[5]; "CPV" means Common Procurement Vocabulary; "design contest" means a competition, particularly in the fields of planning, architecture, civil engineering and data processing— (a) which is conducted by or on behalf of a contracting authority and in which that contracting authority invites the entry by economic operators of plans and designs;
(b) under the rules of which the plans or designs entered will be judged by a jury;
(c) under which prizes may or may not be awarded; and
(d) which enables the contracting authority to acquire the use or ownership of plans or designs selected by the jury;
"disabled person" means any person recognised as disabled within the meaning of the Disability Discrimination Act 1995[6] and "disabled persons" shall be interpreted accordingly; "disability" has the same meaning as in that Act; "dynamic purchasing system" means a completely electronic system of limited duration which is— (a) established by a contracting authority to purchase commonly used goods, work, works or services; and
(b) open throughout its duration for the admission of economic operators which—
(i) satisfy the selection criteria specified by the contracting authority; and
(ii) submit an indicative tender to the contracting authority or person operating the system on its behalf which complies with the specification required by that contracting authority or person;
"EC Treaty" means the Treaty establishing the European Community signed on 25 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— (a) takes place after the initial evaluation of tenders; and
(b) enables tenders to be ranked using automatic evaluation methods;
"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" means, unless the context otherwise requires, 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 that department; "Government Procurement Agreement" means the Agreement on Government Procurement between certain parties to the World Trade Organisation (WTO) signed in Marrakesh on 15 April 1994[7]; "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); "letter" has the same meaning as in the Postal Services Act 2000[8]; "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; "Office of Government Commerce" means the office of the Treasury having that title[9]; "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; "Public Sector Directive" means Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004[10]; "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— (a) a public works contract; or
(b) a public supply contract;
but a contract for both goods and services shall be considered to be a public services contract if the value of the consideration 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)— (a) for the purchase of goods by a contracting authority (whether or not the consideration is given in instalments and whether or not the purchase is conditional upon the occurrence of a particular event), or
(b) for the hire of goods by a contracting authority (both where the contracting authority becomes the owner of the goods after the end of the period of hire and where it does not);
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 a relevant State has 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)— (a) for the carrying out of a work or works for a contracting authority; or
(b) under which a contracting authority engages a person to procure by any means the carrying out for the contracting authority of a work corresponding to specified requirements;
"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 in accordance with 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— "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— (a) who sought, who seeks, or who would have wished, to be the person to whom a public supply contract is awarded; and
(b) who is a national of and established in a relevant State;
"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; "Utilities Directive" means Directive 2004/17/EC of the European Parliament and of the Council of 31st March 2004[11]; "work" means the outcome of any works which is sufficient of itself to fulfil an economic and technical function; "working day" means a day other than a Saturday, Sunday or Bank Holiday within the meaning of the Banking and Financial Dealings Act 1971[12]; "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—
(a) "a Part A services contract" is a contract under which services specified in Part A of Schedule 3 are to be provided;
(b) "a Part B services contract" is a contract under which services specified in Part B of Schedule 3 are to be provided;
(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—
(a) a Part A services contract if the value of the consideration attributable to the services specified in Part A is greater than that attributable to those specified in Part B; and
(b) a Part B services contract if the value of the consideration attributable to the services specified in Part B is equal to or greater than that attributable to those specified in Part A.
(4) Where a thing is required to be done under these Regulations—
(a) within a certain period after an action is taken, the day on which that action is taken shall not be counted in the calculation of that period;
(b) within a certain period, that period must include at least two working days; and
(c) except for regulation 32(3), within a certain period and the last day of that period is not a working day, the period shall be extended to include the next working day.
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 Northern Ireland Assembly Commission;
(f) the Scottish Ministers;
(g) the Scottish Parliamentary Corporate Body;
(h) the National Assembly for Wales;
(i) a local authority;
(j) a fire authority constituted by a combination scheme under the Fire Services Act 1947[13];
(k) a fire and rescue authority—
(i) within the meaning of section 1 of the Fire and Rescue Services Act 2004[14];
(ii) constituted by a scheme under section 2 of that Act; or
(iii) constituted by a scheme to which section 4 of that Act applies;
(l) the Fire Authority for Northern Ireland;
(m) a police authority established under section 3 of the Police Act 1996[15];
(n) the Metropolitan Police Authority established under section 5B[16] of the Police Act 1996;
(o) a police authority established under section 2 of the Police (Scotland) Act 1967[17];
(p) the Northern Ireland Policing Board;
(q) an authority established under section 10 of the Local Government Act 1985[18];
(r) a joint authority established by Part IV of that Act;
(s) any body established in accordance with an order under section 67 of that Act;
(t) the Broads Authority;
(u) any joint board, the constituent members of which consist of any of the bodies specified in paragraphs (i), (j), (m), (n), (o), (p), (q), (r) and (s);
(v) a National Park authority established by an Order under section 63 of the Environment Act 1995[19];
(w) 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—
(i) financed wholly or mainly by another contracting authority;
(ii) subject to management supervision by another contracting authority; or
(iii) more than half of the board of directors or members of which, or, in the case of a group of individuals, more than half of those individuals, are appointed by another contracting authority;
(x) an association of or formed by one or more of the above; and
(y) to the extent not specified in sub-paragraphs (a) to (v), an entity specified in Schedule 1.
(2) In the application of these Regulations to a local authority in England, "local authority" in paragraph (1) means—
(a) a county council, a district council, a London borough council, a parish council, the Council of the Isles of Scilly;
(b) the Common Council of the City of London in its capacity as local authority or police authority; or
(c) the Greater London Authority or a functional body within the meaning of the Greater London Authority Act 1999[20].
(3) In the application of these Regulations to a local authority in Wales, "local authority" in paragraph (1) means a county council, a county borough council or a community council.
(4) In the application of these Regulations to a local authority in Scotland, "local authority" in paragraph (1) has the same meaning as in section 235(1) of the Local Government (Scotland) Act 1973[21] and also includes a joint board or joint committee within the meaning of section 235(1) of that Act.
(5) In the application of these Regulations to a local authority in Northern Ireland, "local authority" in paragraph (1) means a district council within the meaning of the Local Government Act (Northern Ireland) 1972[22].
(6) 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 (in accordance with Article 2 of the Public Sector Directive)—
(a) treat economic operators equally and in a non-discriminatory way; and
(b) act in a transparent way.
(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[23] is specified in column 3 of that Schedule.
Application
5.—(1) Subject to paragraph (3), 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, 8 and 9 apply; and
(b) the following provisions in Parts 2 to 7 apply—
(i) regulation 9 (technical specifications in the contract documents);
(ii) regulation 31 (contract award notice);
(iii) regulation 40(2) (statistical and other reports);
(iv) regulation 41 (provision of reports); and
(v) regulation 42 (publication of notices).
(3) In these Regulations, a reference to a public works contract does not include a public works concession contract except in—
(a) Parts 1, 8 and 9; and
(b) the following provisions in Parts 6 and 7—
(i) regulation 34 (subsidised public works contracts and public services contracts);
(ii) regulation 36 (public works concession contracts);
(iii) regulation 37 (sub-contracting the work or works to be carried out under a public works concession contract);
(iv) regulation 39 (conditions for performance of contracts);
(v) regulation 41 (provision of reports);
(vi) regulation 42 (publication of notices);
(vii) regulation 43 (confidentiality of information);
(viii) regulation 44 (means of communication);
(ix) regulation 45 (sub-contracting); and
(x) regulation 46 (public service bodies).
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 Regulations 2006[24] and—
(a) that contract is for the purposes of carrying out an activity listed in any Part of Schedule 1 to those Regulations in which the utility is specified;
(b) that contract is for the provision of bus services to the public where other entities are free to provide those services, either in general or in a particular geographical area, under the same conditions as the utility;
(c) that contract is for the purpose of acquiring goods, work, works or services in order to sell, hire or provide them to another person unless the utility has a special or exclusive right to sell, hire or provide such goods, work, works or services or other persons are not free to sell, hire or provide them under the same conditions;
(d) that contract is for the purchase of water, where that utility is engaged in the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transportation or distribution of drinking water or the supply of drinking water to such networks;
(e) that contract is for the supply of energy or of fuels for the production of energy, where that utility is engaged in—
(aa) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat or the supply of gas or heat to such networks;
(bb) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity or the supply of electricity to such networks; or
(cc) exploring for or extracting oil, gas, coal or other solid fuels; or
(f) where that utility is engaged in an activity excluded from the Utilities Contracts 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—
(a) 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;
(b) 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;
(c) where Article 296 of the EC Treaty applies to that public contract, framework agreement or dynamic purchasing system;
(d) where different procedures govern the procedures leading to the award of the contract and it is to be entered into in accordance with—
(i) an international agreement concluded in conformity with the EC Treaty to which the United Kingdom and a State which is not a relevant State are parties and it relates to goods or the carrying out of a work or works or the provision of services intended for the joint implementation or exploitation of a project related to that agreement;
(ii) an international agreement relating to the stationing of troops and concerning the undertakings of a relevant State or a state which is not a relevant State; or
(iii) the contract award procedures of an organisation of which only States are members (an "international organisation") or of which only States or international organisations are members;
(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—
(i) the benefits are to accrue exclusively to the contracting authority for its use in the conduct of its own affairs; and
(ii) the services are to be wholly paid for by the contracting authority;
(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—
(i) to provide the services, or
(ii) which is necessary for the provision of the services;
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 businesses" 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 factories, supported businesses or supported employment programmes.
(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, framework agreement or dynamic purchasing system (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 services contract is—
(a) 137,000 euro where offers are sought by Schedule 1 entities; 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—
(i) Schedule 1 entities; and
(ii) the Secretary of State for Defence, but only in relation to a contract for the purchase or hire of goods specified in Schedule 5; and
(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 fixed for 12 months or less;
(b) 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 more than 12 months; or
(c) 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—
(i) have similar characteristics; and
(ii) are for the same type of goods or services;
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—
(i) in the case of public supply contracts, the period of 12 months from the first date of the delivery of the goods to be purchased or hired, or in the case of public services contracts, from the first date on which the services will be performed; or
(ii) the financial year if that is longer than 12 months.
(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 purposes 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 a 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.
PART 2TECHNICAL SPECIFICATIONSTechnical 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 and 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— (a) in the case of a public services contract or a public supply contract, a specification in a document defining the required characteristics of materials, goods or services, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of a product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods and conformity assessment procedures; and
(b) in the case of a public works contract, the totality of the technical prescriptions contained, in particular, in the contract documents, defining the characteristics required of the work, works, materials or goods, which permits the work, works, materials or goods to be described in a manner such that it fulfils the use for which it is intended by the contracting authority and these characteristics shall include—
(i) levels of environmental performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions and production processes and methods;
(ii) rules relating to design and costing, the test, inspection and acceptance conditions for work or works and methods or techniques of construction; and
(iii) all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished work or works and to the materials or parts which they involve.
(2) Where a contracting authority wishes to lay down technical specifications which must be met by—
(a) the services to be provided under a public services contract and the materials and goods used in or for it;
(b) the goods to be purchased or hired under a public supply contract; or
(c) the work or works to be carried out under a public works contract and the materials and goods used in or for it;
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)—
(a) by reference to technical specifications in the following order of preference—
(i) British standards transposing European standards;
(ii) European technical approvals;
(iii) common technical specifications;
(iv) international standards; or
(v) other technical reference systems established by the European standardisation bodies; or
(b) in the absence of the technical specifications referred to in sub-paragraph (a), by reference to the following technical specifications—
(i) British standards;
(ii) British technical approvals; or
(iii) British technical specifications relating to the design, calculation and execution of the work or works and use of the products;
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—
(a) a British standard transposing a European standard;
(b) a European technical approval;
(c) a common technical specification;
(d) an international standard; or
(e) a technical reference system established by a European standardisation body;
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—
(a) those technical specifications are appropriate to define the characteristics of the materials, goods or services that are the object of the contract;
(b) the eco-label requirements are drawn up on the basis of scientific information;
(c) the eco-label is adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations, are able to participate; and
(d) the technical specifications are accessible to any party interested.
(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—
(a) materials or goods of a specific make or source or to a particular process; or
(b) trademarks, patents, types, origin or means of production;
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—
(a) the subject of the contract makes the use of such references indispensable; or
(b) the subject of the contract cannot otherwise be described by reference to technical specifications which are sufficiently precise and intelligible to all economic operators.
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 variants 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—
(a) the beginning of the financial year in the case of public supply contracts or public services contracts or framework agreements for the purchase or hire of goods or for the provision of services; or
(b) the decision authorising the programme of public works contracts or framework agreements for the carrying out of work or works, in the case of public works contracts or framework agreements for the carrying out of work or works.
(2) The notice referred to in paragraph (1) shall contain information in respect of—
(a) the public supply contracts, the public services contracts or the framework agreements referred to in paragraph (1)(a) which the contracting authority expects to award or conclude during the period of 12 months beginning with the date of the notice; and
(b) the public works contracts or the framework agreements referred to in paragraph (1)(b) which the contracting authority expects to award or conclude;
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—
(a) the total consideration which the contracting authority expects to be payable under—
(i) public supply contracts or framework agreements for the purchase or hire of goods falling within the same product area; or
(ii) Part A services contracts or framework agreements for the provision of services falling within the same category specified in Part A of Schedule 3;
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) does 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—
(i) irregular tenders; or
(ii) unacceptable tenders following an evaluation made in accordance with regulation 15(11) or 16(7);
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 the 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—
(i) when a contracting authority is using the negotiated procedure in accordance with regulation 13(a) and invites to negotiate the contract every economic operator which submitted a tender following an invitation made during the course of the discontinued open procedure or restricted procedure (not being a tender which was excluded in accordance with regulation 15(11) or 16(7));
(ii) subject to paragraph (2), in the absence of tenders, suitable tenders or applications in response to an invitation to tender by the contracting authority using the open procedure or the restricted procedure but only if the original terms of the proposed contract offered in the discontinued procedure have not been substantially altered in the negotiated procedure;
(iii) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the public contract may be awarded only to a particular economic operator;
(iv) when (but only if it is strictly necessary) for reasons of extreme urgency brought about by events unforeseeable by, and not attributable to, the contracting authority, the time limits specified in—
(aa) regulation 15 for the open procedure;
(bb) regulation 16 for the restricted procedure; or
(cc) regulation 17 for the negotiated procedure;
cannot be met;
(b) in the case of a public supply contract—
(i) when the goods to be purchased or hired under the contract are to be manufactured solely for the purpose of research, experiment, study or development but not when the goods are to be purchased or hired with the aim of ensuring profitability or to recover research and development costs;
(ii) subject to paragraph (3), when the goods to be purchased or hired under the contract are required by the contracting authority as a partial replacement for, or in addition to, existing goods or an installation and when to obtain the goods from a supplier other than the supplier which supplied the existing goods or the installation would oblige the contracting authority to acquire goods having different technical characteristics which would result in—
(aa) incompatibility between the existing goods or the installation and the goods to be purchased or hired under the contract; or
(bb) disproportionate technical difficulties in the operation and maintenance of the existing goods or the installation;
(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—
(i) subject to paragraph (4), when a contracting authority wants an economic operator which has entered into a public works contract or a public services contract with the contracting authority to carry out additional work or works or provide additional services which were not included in the project initially considered or in the original public works contract or public services contract but which through unforeseen circumstances have become necessary, and such work, works or services—
(aa) cannot for technical or economic reasons be carried out or provided separately from those under the original contract without major inconvenience to the contracting authority; or
(bb) can be carried out or provided separately from those under the original contract but are strictly necessary to the later stages of the performance of that contract; and
(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 Office of Government Commerce 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 [25], 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—
(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.
(7) 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 the 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 not 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 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—
(a) an economic operator requests the contract documents in sufficient time to allow the contracting authority to respond in accordance with paragraphs (8) and (9) and, for whatever reason, the contract documents or further information 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.
(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—
(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—
(i) economic and financial standing; or
(ii) technical or professional ability.
(12) The contracting authority may require an economic operator to satisfy minimum levels of—
(a) economic and financial standing; 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 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 informing 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—
(i) economic and financial standing; or
(ii) technical or professional ability.
(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;
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.
(12) The contracting authority may require an economic operator to satisfy minimum levels of—
(a) economic and financial standing; 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;
(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 one or more 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 not 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 that 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 by it 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; or
(b) fails to satisfy the minimum standards required of economic operators by the contracting authority of—
(i) economic and financial standing; or
(ii) technical or professional ability.
(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 specified 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;
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.
(14) The contracting authority may require an economic operator to satisfy minimum levels of—
(a) economic and financial standing; 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 fixes 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—
(i) economic and financial standing; or
(ii) technical or professional ability.
(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 specified 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; 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
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