The Public Services Contracts Regulations 1993

• (2) The contracting authority shall publicise its intention to hold a design contest by sending to the Official Journal a notice in a form substantially corresponding to that set out in Part F of Schedule 2 and containing the information therein specified.

• (3) The contracting authority shall make the rules of the design contest available to services providers who wish to participate in the contest.

• (4) The contracting authority may restrict the number of persons invited to participate in the design contest, but it shall make the selection on the basis of clear and non discriminatory criteria.

• (5) The contracting authority shall take account of the need to ensure adaquate competition in determining the number of persons invited to participate in the design contest.

• (6) Regulation 20 applies to design contests as it applies to the seeking of offers in relation to a proposed public services contract.

• (7) The contracting authority shall provide for the participants' proposals to be submitted to the jury without any indication as to the authorship of each proposal.

• (8) The contracting authority shall ensure that the members of the jury are all individuals who are independent of participants in the design contest and, when the participants are required to possess a particular professional qualification, that at least one third of the members of the jury also possess that qualification or an equivalent qualification.

• (9) The contracting authority shall ensure that the jury makes its decision independently and solely on the basis of the criteria set out in the notice referred to in paragraph (2) above.

• (10) The contracting authority shall, no later than 48 days after the date the jury has made its selection, publicise the results of the design contest by sending to the Official Journal a notice substantially corresponding to the form set out in Part G of Schedule 2 and including the information therein specified.

Subsidised public services contracts

25

• (1) Where a contracting authority undertakes to contribute more than half of the consideration to be or expected to be paid under a public services contract to which this paragraph applies by virtue of paragraph (2) below which has been or is to be entered into by a person other than a contracting authority (in this paragraph referred to as “the subsidised body”), that contracting authority shall—

• (a) make it a condition of the making of such contribution that the subsidised body complies with the provisions of these Regulations in relation to that public services contract as if it were a contracting authority, and

• (b) ensure that the subsidised body does so comply or recover the contribution.

• (2) Paragraph (1) above applies to a contract which would be a public services contract if the subsidised body were a contracting authority and which is for the carrying out of services in connection with the carrying out of any of the activities specified in Schedule 1 of the Public Works Contracts Regulations 1991[^f00024] as are included in Group 502 or for the carrying out of building work for hospitals, facilities intended for sports, recreation and leisure, school and university building or buildings for administrative purposes.

Obligations relating to employment protection and working conditions

26

A contracting authority which includes in the contract documents information as to where a services provider may obtain information about obligations relating to employment protection and working conditions which will apply to the services to be provided under the public services contract shall request services providers to indicate that they have taken account of those obligations in preparing their tender or in negotiating the contract.

Statistical and other reports

27

• (1) A contracting authority shall, no later than 31st July 1995 and 31st July in each alternate year thereafter, send to the Treasury a report specifying in relation to each public services contract awarded by it during the year preceding the year in which the report is amde—

• (a) the value (estimated if necessary) of the consideration payable under the contract;

• (b) whether the open, restricted or negotiated procedure was used in awarding the contract;

• (c) if the negotiated procedure was used, pursuant to which provision of regulation 10(2) that procedure was used;

• (d) theservices specified in Part A of Schedule 1 provided or to be provided under the contract; and

• (e) the nationality of the person to whom the contract was awarded.

• (2) A contracting authority shall send to the Treasury a report containing such other information as the Treasury may from time to time require in respect of a particular public services contract (including a public services contract excluded from the application of these Regulations by regulation 6 or 7 and a Part B services contract) for the purpose of informing tha Commission.

Responsibility for obtaining reports

28

• (1) Where a contracting authority is not a Minister of the Crown or a government department that contracting authority shall send any report which it is required in accodance with regulations 8(6), 10(7), 21(8), 23(3) and 27 to send to the Treasury instead to the Minister responsible for that contracting authority and that Minister shall be responsible for sending the report to the Treasury.

• (2) The Minister responsible for a contracting authority shall be the Minister of the Crown whose areas of responsibility are most closely connected with the functions of the contracting authority; and any question as to which Minister of the Crown’s areas of responsibility are most closely connected with the functions of a contracting authority shall be determined by the Treasury whose determination shall be final.

• (3) The requirement on a contracting authority to send any report in accordance with paragraph (1) above to the Minister of the Crown responsible for that contracting authority shall be enforceable, on the application of the Minister responsible, by mandamus or, in Scotland, for an order for specific performance.

• (4) Proceedings under paragraph (3) above brought in Scotland shall be brought before the Court of Session.

• (5) In the application of this regulation to Northern Ireland references to the Minister shall include references to the head of a Northern Ireland department.

Publication of notices

29

• (1) Any notice required by these Regulations to be sent to the Official Journal shall be sent by the most appropriate means to the Office for Official Publications of the European Communities[^f00025] and where the contracting authority is applying the restricted procedure or the negotiated procedure and, for reasons of urgency, is applying the provisions of regulation 12(15) or 13(4), the notice shall be sent by telex, telegram or telefax.

• (2) Any such notice shall not contain more than 650 words.

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

• (4) The contracting authority shall not place a contract notice in the press or like publications in the United Kingdom before the date on which the notice is despatched in accordance with paragraph (1) above and if it does after that date so place the notice it shall not add to the notice any information in relation to the contract which was not contained in the notice sent to the Official Journal.

• (5) When a contracting authority is not required to send a contract notice to the Official Journal in respect of a particular services contract it may nevertheless send such a notice and request that it be published.

Confidentiality of information

30

A contracting authority shall comply with such requirements as to confidentiality of information provided to it by a services provider as the services provider may reasonably request.

Sub-contractors

31

A contracting authority may require a services provider to indicate in his tender what part of the public services contract he intends to sub-contract to another person.

PART VII — APPLICATIONS TO THE COURT

Enforcement of obligations

32

• (1) The obligation on a contracting authority to comply with the provisions of these Regulations other than regulations 8(6), 10(7), 21(8), 23(3) and 27, and with any enforceable Community obligation in respect of a public services contract (other than one excluded from the application of these Regulations by regulation 6 or 7), is a duty owed to services providers.

• (2) 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 services provider who, in consequence, suffers, or risks suffering, loss or damage.

• (3) 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.

• (4) Proceedings under this regulation may not be brought unless—

• (a) the services provider bringing the proceedings has informed the contracting authority of the breach or apprehended breach of the duty owed to him pursuant to paragraph (1) above by the contracting authority 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.

• (5) 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 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 in the course of following such 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 the decision or action or order the contracting authority to amend any documents, or

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

• (iii) do both of those things.

• (6) In any 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.

• (7) Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947[^f00026], in proceedings brought under this regulation against the Crown the Court shall have power to grant an injunction or interdict.

Amendment of the Public Supply Contracts Regulations

33

The Public Supply Contracts Regulations 1991[^f00027] shall be amended—

• (a) in regulation 2(1) by omitting from the definition of “public supply contract” subparagraph (ii);

• (b) by deleting regulation 7(7).

SCHEDULE 1 — CATEGORIES OF SERVICES

PART A

Category	Services	CPC[^f00028]Reference
1.	Maintenance and repair of vehicles and equipment	6112, 6122, 633, 886
2.	Transport by land, including armoured car services and courier services and courier services but not including transport of mail and transport by rail	721 (except 71235), 7512, 87304
3.	Transport by air but not transport of mail	73(except 7321)
4.	Transport of mail by land, other than by rail, and by air	71235, 7321
5.	Telecommunications services other than voice telephony, telex, raidotelephony paging and satellite services	752
6.	Financial services Insurance services Banking & investment services other than financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services	81 (Part) 812, 814
7.	Computer and related services	84
8.	R&D services where the benefits accrue exclusively to the contracting authority for it suse in the conduct of its own affairs and the services are to be wholly paid for by the contracting authority	85
9.	Accounting, auditing and book-keeping services	862
10.	Market research and public opinion polling services	864
11.	Management consultancy services and related services, but not arbitration and conciliation servies	865, 866
12.	Architectural services: engineering services and integrated engineering services: urban planning and landscape architectural services: related scientific and technical consulting services: technical testing and analysis services	867
13.	Advertising services	871
14.	Building-cleaning services and property management services	874 82201 to 82206
15.	Publishing and printing services on a fee or contract basis	88442
16.	Sewerage and refuse disposal service: sanitation and similar services	94

PART B

Category	Services	CPC Reference
17.	Hotel and restaurant services	64
18.	Transport by rail	711
19.	Transport by water	72
20.	Supporting and auxiliary transport services	74
21.	Legal services	861
22.	Personnel placement and supply services	872
23.	Investigation and security services, other than armoured car services	873 (except 87304)
24.	Education and vocational education services	92
25.	Health and social services	93
26.	Recreational, cultural and sporting services	96
27.	Other services

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

PART A — PRIOR INFORMATION NOTICES

1

Name, address and telephone, telegraphic, telex and facsimile numbers of the contracting authority and of the service from which additional information may be obtained.

2

For each category of services in Part A of Schedule 1, the total quantity in value to be provided.

3

For each category of services in (2), the estimated date of the commencement of the procedures leading to the award of the contract(s) (if known).

4

Other information.

5

Date of despatch of the notice.

PART B — OPEN PROCEDURE NOTICE

6

Where applicable, prohibition on variants.

7

Period of contract ot time-limit, if any, for completion.

8

• (a) Name and address of the service from which the contract and additional documents may be requested;

• (b) Final date fro making such requests;

• (c) Where applicable, the amount and terms of payment of any sum payable for such documents.

9

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

• (b) Date, time and place of opening.

10

Any deposits and guarantees required.

11

The main terms concerning financing and payment and/or references to the relevant provisions.

12

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

13

The information and formalities necessary for an appraisal of the minimum standards of economic and financial standing, ability and technical capacity required of the services provider.

14

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

15

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.

16

Other information

17

Date of despatch of the notice.

PART C — RESTRICTED PROCEDURE NOTICE

PART D — NEGOTIATED PROCEDURE NOTICE

PART E — CONTRACT AWARD NOTICE

PART F — DESIGN CONTEST NOTICE

PART G — DESIGN CONTEST RESULT NOTICE

Signed

Tim Wood — Irvine Patnick — Two of the Lords Commissioners of Her Majesty’s Treasury. — 22nd December 1993

Explanatory note

(This note is not part of the Regulations)

These Regulations implement in its entirety Council Directive 92/50/EEC (OJ No.L209, 24.7.92,p.1) relating to the coordination of procedures for the award of public services contracts.

The Regulations apply to certain public bodies called in the Regulations “contracting authorities” (regulation 3) when they are seeking offers in relations to certain contracts for the provision of services (called in the Regulations “public service contracts”) (regulation 2(1)). The Regulations do not apply to some services contracts (regulations 2(1) and 6), nor to those contracts where the value is beneath the threshold for coverage (regulation 7). They deal in particular with the treatment to be accorded to services providers or potential services providers who are nationals of and established in member States (regulation 4).

The categories of services are specified in Schedul 1: the Regulations apply in their entirety to public services contracts for services specified in Part A of Schedule 1 (“Part A services contracts”); only certain provisions apply to those services specified in Part B of that Schedule (“Part B services contracts”) (regulation 5).

With respect to Part A services contracts the principal requirement of the Regulations is that, in seeking offers in relation to such a 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 public services contract with one or more persons selected by it. 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 Part A services contracts in the Official Journal of the European Communities although this requirement is dispensed with in some 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 United Kingdom 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 29). The various procedures also lay down the time to be allowed for the response by potential services providers to the invitations and for obtaining the relevant documents (regulations 11, 12 and 13). The Regulations also specify the matters to which the contracting authority may have regard in treating services providers as ineligible to tender for or negotiate the contract (regulation 14). Detailed rules for the selection of services providers are laid down and relate to their business and professional status, their economic and financial standing, ability and technical capacity. The contracting authority is restricted in the information on which it may rely to demonstrate these matters (regulations 15 and 16).

The contracting authority is required to award Part A services contracts 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 21). If requested by an unsuccessful services provider the contracting authority must provide reasons as to why that services provider was unsuccessful (regulation 23).

There are various other requirements in the Regulations. The most important is the requirement (applying to both Part A and Part B services contracts) that where the contracting authority wishes to lay down technical specifications which the services to be provided under the contract and which the materials and goods used in or for it 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. This includes a British Standard which implements a European standard or European technical approval. 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 a particular process which have the effect of favouring or eliminating certain services providers (regulation 8). Contracting authorities are required to publicise in the Official Journal at the beginning of their financial year certain Part A services contracts which they expect to award during the course of that year (regulation 9). Contracting authorities are also required to publicise in the Official Journal information about both Part A and B services contracts which they have awarded (regulation 22). Contracting authorities are required to submit various reports in respect of each Part A services contract awarded by it, in particular, a biennial report (regulations 23 and 27). There is also a requirement that, where a contracting authority contributes more than half the consideration payable under certain Part A services contracts awarded by another person, compliance with the Regulations is made a condition of the contribution (regulation 25).

In addition, the Regulations regulate the procedures for the holding of a design contest, which may or not be part of the procedure leading to the award of a public services contract, where a jury selects the successful plans and designs from those submitted (regulation 24).

The Regulations also implement Council Directive 89/665/EEC (OJ No.L395,30.12.89,p.33) on the co-ordination of the laws, regulations and administrative provisions relating to the application of review proceedings to the award of public supply and public works contracts as amended by Council Directive 92/50/EEC to the extent that it relates to that Directive. 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 services contract is a duty owed to services providers. A breach of the duty is not a criminal offence but is actionable by a services provider. 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 (regulation 32).

Finally, the Regulations amend the Public Supply Contracts Regulations 1991 to ensure that not more than one set of Regulations applies to any contract (regulation 33).

Footnotes

[^f00001]: S. I. 1991/755.

[^f00002]: 1972 c. 68.

[^f00003]: OJ No. L379, 30.12.78, p.1, as amended by Council Regulation (EC) No. 2626/84 (OJ No. L247, 16.9.84, p.1) and Council Regulation EEC No. 1971/89 (OJ No. L189, 4.7.89, p.1).

[^f00004]: S. I. 1991/2680 as amended by S. I. 1992/2379.

[^f00005]: S. I. 1991/2679 as amended by S. I. 1992/3279.

[^f00006]: S. I. 1992/3279 as amended by S. I. 1993/3227.

[^f00007]: 1971 c. 80.

[^f00008]: OJ No. L209, 24.7.92, p.1.

[^f00009]: The rates are determined for each successive period of two years by calculating the average of the daily exchange rates between each currently and the ECU in a period of 24 months preceding the determination.

[^f00010]: 1947 c. 41.

[^f00011]: 1964 c. 48.

[^f00012]: 1985 c. 51.

[^f00013]: 1972 c .70.

[^f00014]: 1944 c. 31.

[^f00015]: 1973 c. 65.

[^f00016]: 1972 c. 9 (N. I.).

[^f00017]: OJ No. L209, 24.7.92, p. 1.

[^f00018]: OJ No. L217, 5.8.86, p. 21, as amended by Council Directive 91/263/EEC (OJ No. L128, 23.5.91, p.1).

[^f00019]: OJ No. L36, 7.2.87, p. 31.

[^f00020]: OJ No. L40, 11.2.89, p.12.

[^f00021]: 1986 c. 45.

[^f00022]: S. I. 1989/2405 (N.I.19).

[^f00023]: S. I. 1991/2679 as amended by S. I. 1992/3279.

[^f00024]: S. I. 1991/2680 as amended by S. I. 1992/3279.

[^f00025]: The address for the Office for Official Publications of the European Communities is 2 Rue Mercier, L-2985, Luxembourg (tel: 499 28-1; telex: 1324 PUBOF LU; fax: 49 00 03, 49 57 19).

[^f00026]: 1947 c. 44; the Crown Proceedings Act 1947 was extended to Northern Ireland in relation to Her Majesty’s Government in the United Kingdom and in Northern Ireland by and with the additions, exceptions and modifications set out in the Crown Proceedings (Northern Ireland) Order 1981, to which there is an amendment not relevant to these Regulations.

[^f00027]: S. I. 1991/2679 as amended by S. I. 1992/3279.

[^f00028]: CPC stands for the Central Product Classification of the United Nations.

[^f00029]: In accordance with regulation 12.

[^f00030]: In accordance with regulation 12.

[^f00031]: In accordance with regulation 10.