Regulation 118 – General transitional provision and saving where procurement procedure commenced before 26th February 2015

Commentary

Regulation 118 establishes a number of transitional provisions for procurement procedures which started before 26th February 2015 but have concluded after the entry into force of the Public Contracts Regulations 2015.

As a general rule, all procedures initiated before 26th February 2015 are to progress under the rules in force at the moment of the start and not the PCR2015. A procedure is deemed to have started if notices have been sent to the OJEU (paragraph (2)(a)), an advertisement published (paragraph (2)(b)) or even an economic operator contacted by the contracting authority (paragraph (2)(c)). The latter offers some scope for concern as it may be difficult for the contracting authority to prove such contact unless a proper audit or paper trail is kept.

The exclusion of application of the PCR2015 is extended to contracts awarded under framework agreements established before 26th February 2015, thus meaning that potentially when the frameworks are re-established in the future will said contracts be subject to the PCR2015 rules (paragraph (3)). A similar restriction applies to pre-existing dynamic purchasing systems (paragraph (4)).

The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 amended Regulation 118 by adding paragraphs 5A to 5D. These paragraphs define that for contracts falling under paragraph 5, that is public contracts entered into before 26th February 2015 are subject to the rules of Regulation 72 on modification and Chapter 6 on remedies. As such, contracting authorities have to take into consideration the changes introduce to existing contracts to ensure they are compliant with the rules set forth by Regulation 72.

Last modified: December 8, 2016 by Pedro Telles

118.—(1) Nothing in these Regulations affects any contract award procedure commenced before 26th February 2015.

(2) For that purpose, a contract award procedure has been commenced before 26th February 2015 if, before that date—

(a) a contract notice has been sent to the Official Journal in accordance with the 2006 Regulations in order to invite offers or requests to be selected to tender for or to negotiate in respect of a proposed public contract, framework agreement or dynamic purchasing system;

(b) the contracting authority has had published any form of advertisement seeking offers or expressions of interest in a proposed public contract, framework agreement or dynamic purchasing system; or

(c) the contracting authority has contacted any economic operator in order to—

(i) seek expressions of interest or offers in respect of a proposed public contract, framework agreement or dynamic purchasing system, or

(ii) respond to an unsolicited expression of interest or offer received from that economic operator in relation to a proposed public contract, framework agreement or dynamic purchasing system.

(3) Nothing in these Regulations affects the award of a specific contract based on a framework agreement where the framework agreement was concluded—

(a) before 26th February 2015; or

(b) on or after 26th February 2015 following a contract award procedure which, by virtue of paragraph (1), was not affected by these Regulations.

(4) Nothing in these Regulations affects the award of a specific contract under a dynamic purchasing system where the system was established—

(a) before 26th February 2015; or

(b) on or after that date following a contract award procedure which, by virtue of paragraph (1), was not affected by these Regulations.

(5) Paragraphs (5A) to (5D) apply in the case of a contract awarded—

(a) before 26th February 2015; or

(b) after that date but where the award itself was not, by virtue of paragraphs (1) to (4), affected by these Regulations.

(5A) Except in the case of a contract referred to in paragraph (5B) to the extent referred to in paragraph (5C), nothing in these Regulations affects a contract to which paragraph (5) applies.

(5B) This paragraph refers to a contract which was awarded under the 2006 Regulations (other than a public works concession contract).

(5C) A contract referred to in paragraph (5B) is subject to regulations 72 and 73(3) and Chapter 6 of Part 3 (so far as that Chapter applies to regulations 72 and 73(3)).

(5D) For the purposes of paragraph (5C), any reference in regulation 72 or 73(3) or Chapter 6 of Part 3 to a contract or to a public contract includes a contract to which paragraph (5B) applies.

(6) In this regulation, “dynamic purchasing system”, “framework agreement” “public contract” and “public works concession contract” have the same meanings as in the 2006 Regulations.