The Public Works Contracts Regulations 1991

• (1) The obligation on a contracting authority to comply with the provisions of these Regulations other than regulations 8(6), 10(7), 20(7), 22(3), 28 and 29(1), and with any enforceable Community obligation in respect of a public works contract (other than one excluded from the application of these Regulations by regulations 6 and 7), and the obligation on a concessionaire to comply with the provisions of regulation 26(3) is a duty owed to contractors.

• (2) In this regulation and notwithstanding regulation 4, references to “contractor” include, where the duty owed pursuant to paragraph (1) above is the obligation on a concessionaire to comply with regulation 26(3), any person–

• (a) who sought, or who seeks, or would have wished, to be the person to whom a contract to which regulation 26(3) applies is awarded, and

• (b) who is a national of and established in a member State.

• (3) A breach of the duty owed pursuant to paragraph (1) above shall not be a criminal offence but any breach of the duty shall be actionable by any contractor who, in consequence, suffers, or risks suffering, loss or damage.

• (4) Proceedings under this regulation shall be brought in England and Wales and in Northern Ireland in the High Court and, in Scotland, before the Court of Session.

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

• (a) the contractor bringing the proceedings has informed the contracting authority or concessionaire, as the case may be, of the breach or apprehended breach of the duty owed to him pursuant to paragraph (1) above by that contracting authority or concessionaire and of his intention to bring proceedings under this regulation in respect of it; and

• (b) they are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.

• (6) Subject to paragraph (6) below, but otherwise without prejudice to any other powers of the Court, in proceedings brought under this regulation the Court may–

• (a) by interim order suspend the procedure leading to the award of the contract in relation to the award of which the breach of the duty owed pursuant to paragraph (1) above is alleged, or suspend the implementation of any decision or action taken by the contracting authority or concessionaire, as the case may be, in the course of following such a procedure; and

• (b) if satisfied that a decision or action taken by a contracting authority was in breach of the duty owed pursuant to paragraph (1) above–

• (i) order the setting aside of that decision or action or order the contracting authority to amend any document, or

• (ii) award damages to a contractor who has suffered loss or damage as a consequence of the breach, or

• (iii) do both of those things.

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

• (8) Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947(¹⁸), in proceedings brought under this regulation against the Crown the court shall have power to grant an injunction or interdict.

SCHEDULE 1 — ACTIVITIES CONSTITUTING WORKS

SCHEDULE 2 — FORMS OF NOTICES FOR PUBLICATION IN THE OFFICIAL JOURNAL

PART A — PRIOR INFORMATION NOTICE

1

The name, address, telegraphic address, telephone, telex and facsimile numbers of the contracting authority.

2

• (a) The site.

• (b) The nature and extent of the services to be provided and, where relevant, the main characteristics of any lots by reference to the work.

• (c) If available: an estimate of the cost range of the proposed services.

3

• (a) Estimated date for initiating the award procedures in respect of the contract or contracts.

• (b) If known: estimated date for the start of the work.

• (c) If known: estimated timetable for completion of the work.

4

If known: terms of financing of the work and of price revision and/or references to the provisions in which these are contained.

5

Other information.

6

Date of despatch of the notice.

PART B — OPEN PROCEDURE NOTICE

7

• (a) Where applicable, the persons authorised to be present at the opening of tenders.

• (b) The date, hour and place of such opening.

8

` Any deposit and guarantees required.

9

Main terms concerning financing, and payment and/or references to the provisions in which these are contained.

10

Where applicable, the legal form to be taken by the grouping of contractors to whom the contract is awarded.

11

Minimum standards of economic and financial standing and technical capacity required of the contractor to whom the contract is awarded.

12

Period during which the tenderer is bound to keep open his tender.

13

The criteria for the award of the contract. Criteria other than that of the lowest price shall be mentioned where they do not appear in the contract documents.

14

Where applicable, prohibition on variants.

15

Other information.

16

Date of publication of the prior information notice in the Official Journal of the European Communitiesor references to its non-publication.

17

Date of despatch of the notice.

PART C — RESTRICTED PROCEDURE NOTICE

PART D — NEGOTIATED PROCEDURE NOTICE

PART E — CONTRACT AWARD NOTICE

PART F — PUBLIC WORKS CONCESSION CONTRACT NOTICE

PART G — NOTICE OF WORKS CONTRACTS AWARDED BY CONCESSIONAIRES

Signed

Irvine Patnick — Thomas Sackville — Two of the Lords Commissioners of Her Majesty’s Treasury — 28th November 1991

Explanatory note

(This note is not part of the Regulations)

These Regulations enact in its entirety Council Directive 71/305/EEC concerning the co-ordination of procedures for the award of public works contracts (OJ No. L185, 16.8.71, p. 5) as amended by Council Directive 89/440/EEC (OJ No. L210, 21.7.89, p. 1). They also implement, to the extent that it relates to that Directive, Council Directive 89/665/EEC on the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ No. L395, 30.12.89, p. 33).

The Regulations apply to certain public bodies called in the Regulations “contracting authorities” (regulation 3) when they are seeking offers in relation to certain contracts providing for, or engaging a person to procure, the carrying out or the design and carrying out of certain building and engineering works called in the Regulations “public works contracts” (regulations 2(1) and 5). They deal in particular with the treatment to be accorded to contractors or potential contractors who are nationals of and established in member State (regulation 4). Certain contracts are excluded from the application of the Regulations, principally where the contracting authority operates in the transport, water and energy fields, secret contracts or contracts connected with international agreements (regulation 6) and those contracts where the value of the contract is beneath the threshold for coverage (regulation 7).

The principal requirement of the Regulations is that, in seeking offers in relation to a public works contract, a contracting authority must use one of three procedures: the open procedure, whereby any person who is interested may submit a tender; the restricted procedure whereby only those persons selected by the contracting authority may submit tenders; and the negotiated procedure whereby the contracting authority negotiates the terms of the contract with one or more persons selected by it. The Regulations lay down provisions for making the choice of procedure. The negotiated procedure may only be used in certain limited circumstances (regulation 10).

The contracting authority is required to publicise its intention to seek offers in relation to a public works contract in the Official Journal of the European Communities as soon as the decision approving the planning of works has been taken (regulation 9) and again when it starts the procedure leading to the award although this latter requirement is dispensed with in certain circumstances when the negotiated procedure is used. The form of the advertisement and the information which it has to contain in relation to the proposed contract is specified in Schedule 2. If the notice is also to be published in the UK press it must be limited to the information published in the Official Journal and must not be published before the notice is sent to the Official Journal (regulation 30). The various procedures also lay down the time to be allowed for the response by potential contractors to the invitations and for obtaining relevant documents. The Regulations also specify the matters to which the contracting authority may have regard in excluding tenders from contractors who are regarded as ineligible or in selecting contractors to tender for or to negotiate the contract (regulations 11 to 13). The detailed rules for the selection of contractors are laid down and relate to their business and professional status, their economic and financial standing and their technical capacity. The contracting authority is restricted in the information on which it may rely to demonstrate these matters (regulations 14 to 17).

The contracting authority is required to award a public works contract on the basis either of the offer (including in-house bids) which offers the lowest price or the one which is the most economically advantageous (regulation 20).

There are various other requirements in the Regulations. The most important is the requirement that where the contracting authority wishes to lay down technical specifications which the work or works to be carried out under the contract and the material or goods used in or for them must meet all such specifications must be specified in the contract documents and that, except in certain circumstances, these specifications must be defined by reference to European specifications. It is also provided that, except where it is not possible to describe the goods or materials otherwise, the technical specifications may not refer to goods or materials of a specific make or source or to a particular process which have the effect of favouring or eliminating particular contractors (regulation 8). All contracting authorities are required to publicise in the Official Journal information about the public works contracts they have awarded (regulation 21). The contracting authorities are also required to submit various reports in respect of works and public works contracts awarded by them, in particular, a biennial report (regulation 28). There is a requirement that, where a contracting authority contributes more than half the consideration payable under certain works contracts awarded by another person, compliance with the Regulations is made a condition of the contribution (regulation 23). Special provisions apply to public works concession contracts (public works contracts whereby the contractor is granted the right to exploit the works under the contract) (regulation 25) and for works contracts awarded by such concessionaires (regulation 26), and there is a relaxation of the rules for public works contracts relating to the design and construction of a public housing scheme (regulation 24).

Finally, the Regulations provide that the obligation on a contracting authority to comply with the Regulations, and with any enforceable Community obligation in relation to the award of a public works contract, is a duty owned to contractors. A breach of the duty is not a criminal offence but is actionable by a contractor. Proceedings are assigned to the High Court in England, Wales and Northern Ireland and to the Court of Session in Scotland. The court is given power to grant appropriate interim and final relief and to award damages except that, where the contract in respect of which there has been an infringement has already been entered into, the court’s powers are restricted to awarding damages. The obligation on concessionaires in respect of sub-contracting works under a public works concession contract is likewise enforceable (regulation 31).

Footnotes