PART 1 GENERAL AND TRANSITIONAL

Citation, commencement and interpretation

1. —(1) These Regulations may be cited as the Public Procurement (Miscellaneous Amendments) Regulations 2011 and come into force on 1st October 2011.

(2) In these Regulations—

“ the Public Contracts Regulations ” means the Public Contracts Regulations 2006 ; and

“ the Utilities Contracts Regulations ” means the Utilities Contracts Regulations 2006 .

Amendment of Regulations

2. — (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The Defence and Security Public Contracts Regulations 2011 are amended in accordance with Part 4.

(4)The Public Contracts (Scotland) Regulations 2006 are amended in accordance with regulation 29.

(5)The Utilities Contracts (Scotland) Regulations 2006 are amended in accordance with regulation 30.

Meaning of “date of knowledge” in regulations 4 to 8

3. In regulations 4 to 8, “ date of knowledge ” means the date on which the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

Time limits etc and the Public Contracts Regulations: saving with modification of the provisions as amended in 2009

4. —(1) Regulation 12 does not affect any proceedings where the date of knowledge has occurred before 1st October 2011.

(2) In those circumstances, regulation 47D of the Public Contracts Regulations shall have effect as if paragraph (2) provided—

“ (2) Subject to paragraphs (3) and (4), such proceedings must be started within 3 months beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. ” .

Time limits and the Public Contracts Regulations: modification of the existing saving of the original provisions

5. —(1) This regulation applies where, by virtue of regulation 11 of the 2009 Regulations, regulation 47(7) of the Public Contracts Regulations is not affected by regulation 10 of the 2009 Regulations.

(2) In those circumstances, that regulation 47(7) shall have effect as modified by the following provisions of this regulation.

(3) Where the date of knowledge has occurred before 1st October 2011, regulation 47(7) shall have effect as if paragraph (b) provided—

“ (b) those proceedings are brought within 3 months from the date when the economic operator first knew or ought to have known that grounds for the bringing of the proceedings had arisen unless the Court considers that there is good reason for extending the period within which proceedings may be brought. ” .

(4) Where the date of knowledge occurs on or after 1st October 2011, regulation 47(7) shall have effect—

(a) as if paragraph (b) provided—

“ (b) those proceedings are brought within 30 days from the date of knowledge unless the Court considers that there is good reason for extending the period within which proceedings may be brought, in which case the Court may extend that period up to a maximum of 3 months from the date of knowledge. ” ; and

(b) as if “date of knowledge” were defined for that purpose as the date when the economic operator first knew or ought to have known that grounds for the bringing of the proceedings had arisen.

(5) In this regulation, “ the 2009 Regulations ” means the Public Contracts (Amendment) Regulations 2009 .

Time Limits etc and the Utilities Contracts Regulations: saving with modification of the provisions as amended in 2009

6. —(1) Regulation 19 does not affect any proceedings where the date of knowledge has occurred before 1st October 2011.

(2) In those circumstances, regulation 45D of the Utilities Contracts Regulations shall have effect as if paragraph (2) provided—

“ (2) Subject to paragraphs (3) and (4), such proceedings must be started within 3 months beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. ” .

Time limits and the Utilities Contracts Regulations: modification of the existing saving of the original provisions

7. —(1) This regulation applies where, by virtue of regulation 13 of the 2009 Regulations, regulation 45(5) of the Utilities Contracts Regulations is not affected by regulation 12 of the 2009 Regulations.

(2) In those circumstances, that regulation 45(5) shall have effect as modified by the following provisions of this regulation.

(3) Where the date of knowledge has occurred before 1st October 2011, regulation 45(5) shall have effect as if paragraph (b) provided—

“ (b) those proceedings are brought within 3 months from the date when the economic operator first knew or ought to have known that grounds for the bringing of the proceedings had arisen unless the Court considers that there is good reason for extending the period within which proceedings may be brought. ” .

(4) Where the date of knowledge occurs on or after 1st October 2011, regulation 45(5) shall have effect—

(a) as if paragraph (b) provided—

“ (b) those proceedings are brought within 30 days from the date of knowledge unless the Court considers that there is good reason for extending the period within which proceedings may be brought, in which case the Court may extend that period up to a maximum of 3 months from the date of knowledge. ” ; and

(b) as if “date of knowledge” were defined for that purpose as the date when the economic operator first knew or ought to have known that grounds for the bringing of the proceedings had arisen.

(5) In this regulation, “ the 2009 Regulations ” means the Utilities Contracts (Amendment) Regulations 2009 .

Time limits and service of proceedings: saving of Defence and Security Public Contracts Regulations 2011

8. Regulation 26 does not affect any proceedings where the date of knowledge has occurred before 1st October 2011.

Standstill notices and the definition of ‘tenderer’: modification of new provisions where certain transitional time limits apply

9. —(1) The new regulation 32(18) of the Public Contracts Regulations inserted by regulation 13 of these Regulations shall have effect as if sub-paragraph (b)(ii) were omitted where the time limit for starting the proceedings mentioned in that paragraph is a time limit which applies by virtue of—

(a) regulation 4; or

(b) regulation 5, but only where the limit is as modified by paragraph (3) of that regulation.

(2) The new regulation 33(15) of the Utilities Contracts Regulations inserted by regulation 20 of these Regulations shall have effect as if sub-paragraph (b)(ii) were omitted where the time limit for starting the proceedings mentioned in that paragraph is a time limit which applies by virtue of—

(a) regulation 6; or

(b) regulation 7, but only where the limit is as modified by paragraph (3) of that regulation.

(3) The new regulation 33(16) of the Defence and Security Public Contracts Regulations 2011 inserted by regulation 27 of these Regulations shall have effect as if sub-paragraph (b)(ii) were omitted where the time limit for starting the proceedings mentioned in that paragraph is a time limit which continues to apply by virtue of regulation 8 of these Regulations.

Transfer of functions etc: transitional provision

10. —(1) Anything done before 1st October 2011 by the Office of Government Commerce or the Treasury under, or which was otherwise material to, any provision amended by regulation 16 or 23 shall have effect as if done by the Cabinet Office or the Minister for the Cabinet Office respectively.

(2) Where the Court has made an order before 1st October 2011 in the terms then required by regulation 47N(7)(a) or (8)(a) of the Public Contracts Regulations, regulation 47N shall apply, in relation to anything done on or after that date, subject to the amendments made by regulation 16(3) of these Regulations.

(3) Where the Court has made an order before 1st October 2011 in the terms then required by regulation 45N(7)(a) or (8)(a) of the Utilities Contracts Regulations, regulation 45N shall apply, in relation to anything done on or after that date, subject to the amendments made by regulation 23(3) of these Regulations.

(4) This regulation is without prejudice to section 17(2) (read with section 23) of the Interpretation Act 1978

Treaty references: saving

11. —(1) Regulation 17 does not affect any provision of the Public Contracts Regulations in its application to things done before 1st December 2009.

(2) Regulation 24 does not affect any provision of the Utilities Contracts Regulations in its application to things done before 1st December 2009.

PART 2 AMENDMENT OF THE PUBLIC CONTRACTS REGULATIONS 2006

Time limits and service of proceedings

12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Standstill notices: definition of ‘tenderer’

13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criterion for suspension of contract-making

14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criteria for the rejection of economic operators

15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transfer of functions etc

16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Treaty references

17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous minor amendments

18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3 AMENDMENT OF THE UTILITIES CONTRACTS REGULATIONS 2006

Time limits and service of proceedings

19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Standstill notices: definition of ‘tenderer’

20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criterion for suspension of contract-making

21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criteria for the rejection of economic operators

22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transfer of functions etc

23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Treaty references

24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous minor amendments

25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 4 AMENDMENT OF THE DEFENCE AND SECURITY PUBLIC CONTRACTS REGULATIONS 2011

Time Limits and service of proceedings

26. —(1) In regulation 50(2), omit “, except in regulation 53(2),”.

(2) In regulation 53—

(a) for paragraph (2) substitute—

“ (2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. ” ; and

(b) for paragraphs (4) and (5) substitute—

“ (4) Subject to paragraph (5), the Court may extend the time limit imposed by paragraph (2) (but not any of the limits imposed by regulation 54) where the Court considers that there is a good reason for doing so.

(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

(6) For the purposes of this regulation, in England and Wales and in Northern Ireland, proceedings are to be regarded as started when the claim form is issued. ” .

(3) In regulation 54, for paragraph (8) substitute—

“ (8) For the purposes of this regulation, in England and Wales and in Northern Ireland, proceedings are to be regarded as started when the claim form is issued. ” .

(4) In regulation 55, for paragraph (1) substitute—

“ (1) Where proceedings are started, the economic operator must serve the claim form, or in Scotland the proceedings, on the contracting authority within 7 days after the date of issue. ” .

Standstill notices: definition of ‘tenderer’

27. In regulation 33—

(a) in paragraph (15)(b), for “offer” substitute “ offer and has not been definitively excluded ” ; and

(b) after paragraph (15) insert—

“ (16) For the purposes of paragraph (15)(b)—

(a) a tenderer has been excluded if its offer has been excluded from consideration; and

(b) an exclusion is definitive if, and only if, the tenderer has been notified of the exclusion and either—

(i) the exclusion has been held to be lawful in proceedings under Part 9; or

(ii) the time limit for starting such proceedings has expired even on the assumption that the Court would have granted the maximum extension permitted by regulation 53(4) and (5). ” .

Criterion for suspension of contract-making

28. In regulation 56—

(a) for paragraph (1) substitute—

“ (1) Where—

(a) a claim form is issued, or in Scotland proceedings are brought, in respect of a contracting authority's decision to award the contract;

(b) the contracting authority has become aware that the claim form has been issued, or in Scotland the proceedings have been brought, and that the claim form relates, or the proceedings relate, to that decision; and

(c) the contract has not been entered into,

the contracting authority is required to refrain from entering into the contract. ” ; and

(b) omit paragraph (3).

PART 5 AMENDMENT OF SCOTTISH REGULATIONS

Transfer of functions: the Public Contracts (Scotland) Regulations 2006

29. —(1) In regulation 2(1), omit the definition of “Office of Government Commerce”.

(2) In regulation 41(1) and (3), for “Office of Government Commerce” substitute “ Cabinet Office ” .

(3) In Schedule 1, under the entry for “HM Treasury”, omit “Office of Government Commerce”.

Transfer of functions: the Utilities Contracts (Scotland) Regulations 2006

30. —(1) In regulation 2(1), omit the definition of “Office of Government Commerce”.

(2) in each of the following provisions, for “Office of Government Commerce” substitute “ Cabinet Office ” :—

(a) regulation 9(1)(a);

(b) regulation 9(1)(c)(ii);

(c) regulation 34(5)(e)(i);

(d) regulation 34(5)(e)(iii)(aa);

(e) regulation 39(3);

(f) regulation 39(5).