Regulation 2 – Definitions
Regulation 2 sets out the Definitions used in Part 2 of the instrument. In a clear display of superior legislative technique than that used in the drafting of Directive 2014/24/EU, its contents are alphabetically ordered, enhancing its legibility.
The first observation that this regulation triggers is that its content is different from that of Article 2 of Directive 2014/24/EU, which is also concerned with some applicable public procurement definitions. Some – though not all – of the discrepancies between this Regulation and Article 2 of Directive 2014/24/EU derive from the need to include some “autochthonous” definitions (see below).
Definitions contained in Article 2 of Directive 2014/24/EU
A significant number (23) of definitions already included in Directive 2014/24/EU are repeated in this Regulation, mostly verbatim with a few limited further specifications (mainly a change in the cross-references to other parts of the PCR2015).
As far as more substantive changes are concerned, Regulation 2 only omits or alters two of the definitions:
- centralised purchasing activities with a reference to Regulation 37(10), while maintaining the content of the definition under Article 2(1)(14) of Directive 2014/24/EU, and
- procurement service provider which is not included in Regulation 2(1) but was in Article 2(1)(17) of Directive 2014/24/EU.
One wonders about the need to include this material, particularly in view of the fact that paragraph 2 of Regulation 2 establishes that “[u]nless the context otherwise requires, any expression used both in Part 2 and in the Public Contracts Directive has the meaning that it bears in that Directive“, which should ensure the coordination needed between both instruments.
On second thought, though, the difficulty with paragraph 2 of Regulation 2 is that the first caveat (“[u]nless the context otherwise requires“) is actually either inconsequential or a potential source of infringements of EU public procurement law. Given the supremacy and direct effect of Directive 2014/24/EU from the moment of its transposition (Van Duyn v Home Office, C-41/74, EU:C:1974:133) and the duty of consistent interpretation (Marleasing v Comercial Internacional de Alimentación, C-106/89, EU:C:1990:395), UK Courts are bound by the concepts contained in the Directive and by their interpretation by the Court of Justice. Hence, the first part of reg.2(2) is completely meaningless, as the context in which a defined term is used in Part 2 PCR2015 cannot alter the content of the “EU definition”. Any diverging interpretation may result in an infringement of EU public procurement rules.
Definitions not contained in Article 2 of Directive 2014/24/EU
As far as the rest of the definitions are concerned, reg.2(1) PCR2015 includes the following “autochthonous” definitions: academy, call for competition, Commission(*), common technical specification(*), contest notice(*), contract notice(*), CPV(*), defence and security regulations, disabled, dynamic purchasing system(*), ESPD(*), EU publications office(*), European standard(*), European technical assessment(*), framework agreement(*), GPA(*), international standard(*), invitation to confirm interest(*), legal person, maintained school, national standard(*), NHS trust, Official Journal(*), prior information notice(*), procurement(*) [although this definition incorporates the content of art 1(2) Dir 2014/24], public contracts directive, selection criteria(*), sixth form college corporation ,standard, technical reference(*), technical specifications(*), TFEU(*), the Treaties(*), VAT(*) and working day. All the definitions marked with the (*) were already part of Directive 2014/24/EU but in various parts of the Directive, in articles other than Article 2.
The only ones that bear emphasis are those concerned with the procurement of education or healthcare services (ie academy, maintained school and NHS trust) because they are already indicating the special treatment that these social and special services will be afforded under the Regulations (see regs.74 to 77 PCR2015).
Interestingly, framework agreements are absent from the Directive’s definition list, but get a mention in this Regulation. They are mentioned but not actually defined as Regulation 2(1) simply cross-references to Regulation 33(2). Why? If this is a definition list you might as well put in the definition in or not mention it at all! Especially because Regulation 33(2) states that “In these Regulations, ‘framework agreement’ means (…).” Well if the meaning extends the whole of the Regulations, then Regulation 33(2) text should be simply part of Regulation 2 instead. Lawmakers had no problems in adding new definitions to the list, so they could have done the same with framework agreement.
Finally, paragraphs (3) and (4) set specific rules regarding time limits and the calculation of periods of time. The rules on periods of time are quite straightforward and do not require much comment.
Last modified: July 4, 2016 by Pedro Telles
2.—(1) In these Regulations, except where the context otherwise requires,—
“Academy” means a person who is the proprietor, within the meaning of section 579(1) of the Education Act 1996(1), of an Academy within the meaning of that section;
“accelerated procedure” means any of the following:—
(a) an open procedure in which the contracting authority has exercised the power conferred by regulation 27(5) to fix a time limit for the receipt of tenders that is shorter than the minimum specified in regulation 27(2);
(b) a restricted procedure in which the contracting authority has exercised the power conferred by regulation 28(10) to fix a time limit—
(i) for the receipt of requests to participate that is shorter than the minimum specified in regulation 28(2), or
(ii)for the receipt of tenders that is shorter than the minimum specified in regulation 28(5);
(c) a competitive procedure with negotiation in which the contracting authority has exercised the power conferred by regulation 29(10) to fix a time limit—
(i) for the receipt of requests to participate that is shorter than the minimum specified in regulation 29(4); or
(ii) for the receipt of initial tenders that is shorter than the minimum specified in regulation 29(5).
“ancillary purchasing activities” means activities consisting of the provision of support to purchasing activities, in particular in the following forms:—
(a) technical infrastructure enabling contracting authorities to award public contracts or to conclude framework agreements for works, supplies or services;
(b) advice on the conduct or design of public procurement procedures;
(c) preparation and management of procurement procedures on behalf and for the account of the contracting authority concerned;
“bodies governed by public law” means bodies that have all of the following characteristics:—
(a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b)they have legal personality; and
(c) they have any of the following characteristics:—
(i)they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law;
(ii) they are subject to management supervision by those authorities or bodies; or
(iii)they have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law;
“call for competition” means a call for competition made in a manner required or permitted by regulation 26(8) to (9) or, where relevant, one of the notices referred to in regulation 75(1) or a contest notice;
“candidate” means an economic operator that has sought an invitation or has been invited to take part in a restricted procedure, a competitive procedure with negotiation, a negotiated procedure without prior publication, a competitive dialogue or an innovation partnership;
“central government authorities” means the Crown and all the bodies listed in Schedule 1 (whether or not they perform their functions on behalf of the Crown), but does not include Her Majesty in her private capacity;
“central purchasing body” means a contracting authority which provides centralised purchasing activities and which may also provide ancillary purchasing activities;
“centralised purchasing activities” has the meaning given by regulation 37(10);
“the Commission” means the European Commission;
“common technical specification” means a technical specification in the field of information and communication technology laid down in accordance with Articles 13 and 14 of Regulation (EU) No 1025/2012 of the European Parliament and of the Council(2) as amended from time to time;
“contest notice” means the notice referred to in regulation 79(1);
“contract notice” means the notice referred to in regulation 49 or, where relevant, 75(1)(a);
“contracting authorities” means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law, and includes central government authorities, but does not include Her Majesty in her private capacity;
“Contracts Finder” means a web-based portal provided for the purposes of Part 4 by or on behalf of the Cabinet Office;
“CPV” means the Common Procurement Vocabulary as adopted by Regulation (EC) No 2195/2002 of the European Parliament and of the Council(3) as amended from time to time;
“Defence and Security Regulations” means the Defence and Security Public Contracts Regulations 2011(4);
“design contests” means those procedures which enable a contracting authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes;
“disabled”, in relation to a person, means a disabled person within the meaning of the Equality Act 2010(5) and, in relation to a worker, means a disabled person who is a worker;
“dynamic purchasing system” means the system referred to in regulation 34;
“economic operator” means any person or public entity or group of such persons and entities, including any temporary association of undertakings, which offers the execution of works or a work, the supply of products or the provision of services on the market;
“electronic means” means electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by any other electromagnetic means;
“ESPD” means the European Single Procurement Document referred to in regulation 59(1);
“EU Publications Office” means the Publications Office of the European Union;
“European standard” means a standard adopted by a European standardisation organisation and made available to the general public;
“European Technical Assessment” means the documented assessment of the performance of a construction product, in relation to its essential characteristics, in accordance with the relevant European Assessment Document as defined in point 12 of Article 2 of Regulation (EU) No 305/2011 of the European Parliament and of the Council(6) as amended from time to time;
“framework agreement” has the meaning given by regulation 33(2);
“GPA” means the Agreement on Government Procurement between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended(7);
“innovation” means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations, including with the purpose of helping to solve societal challenges or to support the Europe 2020 strategy for smart, sustainable and inclusive growth;
“international standard” means a standard adopted by an international standardisation organisation and made available to the general public;
“invitation to confirm interest” means, except in regulation 31(18) and (19), an invitation which a contracting authority sends in order to comply with regulation 54(2);
“label” means any document, certificate or attestation confirming that the works, products, services, processes or procedures in question meet certain requirements;
“label requirements” means the requirements to be met by the works, products, services, processes or procedures in order to obtain the label concerned;
“legal person” means a person, whether governed by private law or public law, other than a natural person;
“life cycle” means all stages which are consecutive or interlinked, including research and development to be carried out, production, trading and its conditions, transport, use and maintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilisation;
“maintained school” means the governing body of a maintained school within the meaning of section 19(1) of the Education Act 2002(8);
“national standard” means a standard adopted by a national standardisation organisation and made available to the general public;
“NHS Trust” means a trust established under section 25 of the National Health Service Act 2006(9);
“Official Journal” means the Official Journal of the European Union;
“prior information notice” means the notice referred to in regulation 48 or, where relevant, regulation 75(1)(b);
“prior publication” means prior publication of a call for competition;
“procurement” means the acquisition by means of a public contract of works, supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose;
“procurement document” means any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice, the prior information notice where it is used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;
“public contracts” means contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services but does not include concession contracts within the meaning of the Concession Contracts Regulations 2016;
“Public Contracts Directive” means Directive 2014/24/EU of the European Parliament and of the Council(10);
“public service contracts” means public contracts which have as their object the provision of services other than those referred to in the definition of “public works contracts”;
“public supply contracts” means public contracts which have as their object the purchase, lease, rental or hire-purchase, with or without an option to buy, of products, whether or not the contract also includes, as an incidental matter, siting and installation operations;
“public works contracts” means public contracts which have as their object any of the following:—
(a) the execution, or both the design and execution, of works related to one of the activities listed in Schedule 2;
(b) the execution, or both the design and execution, of a work;
(c) the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work;
“selection criteria” means, except in regulation 80, selection criteria set out by a contracting authority in accordance with regulation 58;
“sixth form college corporation” has the meaning given by section 90(1) of the Further and Higher Education Act 1992(3);”
“standard” means a technical specification, adopted by a recognised standardisation body, for repeated or continuous application, with which compliance is not compulsory, and which is an international standard, a European standard or a national standard;
“sub-central contracting authorities” means all contracting authorities which are not central government authorities;
“technical reference” means any deliverable produced by European standardisation bodies, other than European standards, according to procedures adapted to the development of market needs;
“technical specifications” means the matters referred to in regulation 42(2) to (7);
“tenderer” means an economic operator that has submitted a tender;
“TFEU” means the Treaty on the Functioning of the European Union(11);
“the Treaties” means the Treaty on European Union(12) and TFEU;
“VAT” means value added tax;
“a work”, means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function; but “works” is to be interpreted in accordance with paragraph (2);
“working day” means a day other than a Saturday, Sunday, Christmas Day, Good Friday or bank holiday within the meaning of the Banking and Financial Dealings Act 1971(13); and
“written” or “in writing” means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information transmitted and stored by electronic means.
(2) Unless the context otherwise requires, any expression used both in Part 2 and in the Public Contracts Directive has the meaning that it bears in that Directive.
(3) In Part 2 (except regulation 52(4)), any reference to a period of time, however expressed, is to be interpreted subject to the following requirements
(a) the period must include at least 2 working days; and
(b) where the period is to be calculated from the moment at which an action takes place or other event occurs, the day during which that action takes place or that event occurs is not to be counted in the calculation of that period.
(4) In Parts 2, 3 and 4 (except regulation 52(4)), any reference to a period of however expressed is to be interpreted subject to the requirement that where the period—
(a)is to be calculated by counting forwards in time from a given date or event, and
(b)would (but for this paragraph) have ended on a day which is not a working day,
the period is to end at the end of the next working day.