The Public Contracts (Scotland) Regulations 2015

Made: 16th December 2015

Laid before the Scottish Parliament: 18th December 2015

Coming into force in accordance with Regulation 1

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 and all other powers enabling them to do so.

These Regulations make provision for a purpose mentioned in that section and it appears to the Scottish Ministers that it is expedient for certain references in respect of the following EU Instruments to be construed as references to those EU Instruments or provisions of those EU Instruments (as appropriate) as amended from time to time—Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signatures ;Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary ;Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services ;Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC ;Commission Decision 2009/767/EC setting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2009) 7806 ;Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services (Audio-visual Media Services Directive) ;Commission Decision 2011/130/EU establishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081) ;Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC ;Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council ;Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts ;Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC ; and[Directive 2014/25/EU of the European Parliament and of the Council on procurement entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC ,

These Regulations make provision for a purpose mentioned in that section and it appears to the Scottish Ministers that it is expedient for certain references in respect of the following EU Instruments to be construed as references to those EU Instruments or provisions of those EU Instruments (as appropriate) as amended from time to time—

Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signatures ;

Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary ;

Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services ;

Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC ;

Commission Decision 2009/767/EC setting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2009) 7806 ;

Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services (Audio-visual Media Services Directive) ;

Commission Decision 2011/130/EU establishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081) ;

Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC ;

Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council ;

Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts ;

Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC ; and

[Directive 2014/25/EU of the European Parliament and of the Council on procurement entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC ,

and they are to be construed accordingly.

PART 1 — GENERAL

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Public Contracts (Scotland) Regulations 2015.

• (2) Subject to paragraphs (3) to (6), these Regulations come into force on 18th April 2016.

• (3) Regulation 23(1) to (7) (rules applicable to communication) comes into force—

• (a) for the purposes of regulations 35 (dynamic purchasing systems), 36 (electronic auctions), 37 (electronic catalogues), 52(1) (form and manner of sending notices for publication at EU level) and 54 (electronic availability of procurement documents) on 18th April 2016;

• (b) for the purpose of regulation 38(6) (centralised purchasing activities and central purchasing bodies) on 18th April 2017; and

• (c) for all other purposes on 18th October 2018.

• (4) Regulation 60(7) (European Single Procurement Document: electronic format) comes into force on 18thApril 2018.

• (5) Regulation 60(11)(b) (European Single Procurement Document: providing supporting documents) comes into force on 18th October 2018.

• (6) Regulation 62 (recourse to e-Certis) comes into force on 18th October 2018.

• (7) These Regulations extend to Scotland only.

Interpretation

2

• (1) In these Regulations—

• “accelerated procedure” means any of the following—an open procedure in which the contracting authority has exercised the power conferred by regulation 28(5) (open procedure) to fix a time limit for the receipt of tenders that is shorter than the minimum specified in regulation 28(3) (open procedure);a restricted procedure in which the contracting authority has exercised the power conferred by regulation 29(11) (restricted procedure) to fix a time limit—for the receipt of requests to participate that is shorter than the minimum specified in regulation 29(3) (restricted procedure), orfor the receipt of tenders that is shorter than the minimum specified in regulation 29(6) (restricted procedure);a competitive procedure with negotiation in which the contracting authority has exercised the power conferred by regulation 30(11) (competitive procedure with negotiation) to fix a time limit—for the receipt of requests to participate that is shorter than the minimum specified in regulation 30(5) (competitive procedure with negotiation); orfor the receipt of initial tenders that is shorter than the minimum specified in regulation 30(6) (competitive procedure with negotiation);

• “ancillary purchasing activity” means activity consisting of the provision of support to a purchasing activity, in particular in any of the following forms—technical infrastructure enabling a contracting authority to award a public contract or to conclude a framework agreement for works, supplies or services;advice on the conduct or design of a public procurement procedure;preparation and management of a procurement procedure for or on behalf of the contracting authority concerned;

• “body governed by public law” means a body that has legal personality, is established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character and which—is financed for the most part by the State, regional or local authorities, or by any other body governed by public law;is subject to management supervision by any such authority or body; orhas an administrative, managerial or supervisory board more than half the members of which were appointed by any body referred to in sub-paragraph (a);

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

• “candidate” means an economic operator that has sought an invitation to or has been invited to take part in any of the following—a restricted procedure;a competitive procedure with negotiation;a negotiated procedure without prior publication;a competitive dialogue procedure;an innovation partnership;

• “central government authority” means the contracting authorities listed in Schedule 1 and, where any such authority is succeeded by another authority which is itself a contracting authority, their successors;

• “central purchasing body” means a contracting authority providing centralised purchasing activity whether or not including ancillary purchasing activities;

• “centralised purchasing activity” means activity conducted on a permanent basis in one of the following forms—the acquisition of supplies or services for contracting authorities;the award of public contracts, or the conclusion of framework agreements for works, supplies or services intended for contracting authorities;

• “commenced”, in relation to procurement, means—where a contract notice has been sent to the Official Journal in order to invite offers or requests to be selected to tender for or to negotiate, or be selected to participate in a dialogue in relation to a contract, in respect of a proposed public contract, framework agreement or dynamic purchasing system;in any case where there is no requirement to send a contract notice to the Official Journal, where the contracting authority has dispatched any form of advertisement seeking offers or expressions of interest in the proposed contract, framework agreement or dynamic purchasing system;in any case where there is no such advertising, where the contracting authority has contacted any economic operator in order to—seek expressions of interest or offers in respect of a proposed contract, framework agreement or dynamic purchasing system; orin response to an unsolicited expression of interest or offer in respect of a proposed contract, framework agreement or dynamic purchasing system; orwhere the contracting authority has sent a notice to the Official Journal in order to hold a design contest;

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