Regulation 15 – Defence and security

Commentary

Regulation 15 transposes Article 15 of Directive 2014/24/EU into England, Wales and Northern Ireland. This Regulation ensures that Part 2 applies to certain contracts within the field of defence and security.

Defence and security contracts benefit from exceptions to general procurement rules under certain situations. One of the exceptions is granted by Article 346 TFEU, but most of the legal regime applicable to defence and security contracts is contained on Directive 2009/81/EC. As such, Regulation 15 ensures that if contracts do not fall within the exceptions of Directive 2009/81/EC, then they are subject to general procurement rules and in this consequence to Part 2 of the Public Contracts Regulation 2015.

This is an almost verbatim transposition of the original with the only noteworthy difference being that the cross references on Article 15(1)(a) and (b) to Directive 2009/81/EC are made instead to a “Defence and Security Regulations”.

The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 changed paragraph 3 “intrusive means” to “intrusive measures” without any an apparent change in context or scope.

For an in-depth analysis of the rules applicable to defence and security procurement, as well as the coordination issues that such a special regime creates, see M Trybus, Buying Defence and Security in Europe. The EU Defence and Security Procurement Directive in Context (Cambridge, CUP, 2014).

Last modified: July 4, 2016 by Pedro Telles

15.—(1) This Part applies to the awarding of public contracts and to design contests organised in the fields of defence and security, with the exception of the following contracts:—

(a) contracts falling within the scope of the Defence and Security Regulations;

(b) contracts to which those Regulations do not apply by virtue of regulations 7 or 9 of those Regulations.

(2) This Part does not apply to public contracts and design contests not otherwise exempted by paragraph (1)—

(a) to the extent that the protection of the essential security interests of the United Kingdom or another member State cannot be guaranteed by less intrusive measures, for example by imposing requirements aimed at protecting the confidential nature of information which the contracting authority makes available in a contract award procedure as provided for in this Part; or

(b) to the extent that the application of this Part would oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security.

(3) Where the procurement and performance of the public contract or design contest are classified as secret or must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in any part of the United Kingdom, this Part does not apply provided that the United Kingdom has determined that the essential interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in paragraph (2)(a).