Regulation 109 – Scope of Chapter 8

Commentary

Chapter 8 (Regulations 109 to 112) establish a number of rules for contracts to which Part 2 would not apply, that is contracts which are not harmonised by EU law due to a contract value below the applicable financial thresholds.

The rules of Chapter 8 are constrained at the top by the financial thresholds and at the bottom by a floor of £10,000 for central government contracts (Paragraph 2(b) and £25,000 for NHS trusts and local authorities. As with Chapter 7, these rules do not apply to NHS procurement of health care services within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.

The rules for calculation are similar to those of Regulation 6 and again dividing a contract to avoid their application is not allowed.

Last modified: December 8, 2016 by Pedro Telles

(1) Subject to paragraphs (2) and (5), this Chapter applies to procurements by contracting authorities with respect to public contracts where Part 2 does not apply because the estimated value of the procurement is less than the relevant threshold mentioned in regulation 5.

(2) This Chapter does not apply in any of the following cases:—

(a)where Part 2 would not have applied even if the estimated value of the procurement had been equal to or greater than the relevant threshold mentioned in regulation 5;

(b)where the contracting authority is a central government authority and the procurement has a value net of VAT estimated to be less than £10,000;

(c)where the contracting authority is—

(i)a sub-central contracting authority or an NHS Trust, and

(ii)the procurement has a value net of VAT estimated to be less than £25,000;

(d)the procurement of health care services for the purposes of the NHS within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013(1).

(3) For the purposes of paragraph (2)(b) and (c) and regulation 111(2), the estimated value of the procurement shall be calculated on the basis set out in regulation 6(1) to (5), (7) to (10) and (16) to (19), but as if the reference to a call for competition in regulation 6(7) were a reference to the publication of information on Contracts Finder in accordance with regulation 110.

(4) A procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Chapter, unless justified by objective reasons.

(5) Regulations 110 and 112 do not apply where the contracting authority is a maintained school, an Academy or a sixth form college corporation.

(1)