10 Statutory Instruments reported - Statutory Instruments Joint Committee Contents


Appendix 7


S.I. 2011/1848: memorandum from the Ministry of Defence


Defence and Security Public Contracts Regulations 2011 (S.I. 2011/1848)


1.  The Committee asks the Department to explain the contrast between the use of "must" in regulation 2(1) and (3) and the use of "will" in regulation 2(2). The wording of regulation 2 precisely follows that of the Government's template review provision to be inserted, adapted as necessary, in secondary legislation implementing EU obligations as part of the Government's policy on the 'sunsetting' and review of regulation. We understand that there is no intended contrast by the use of the words "must" and "will" in these paragraphs and that both words were intended by the Government to have the same mandatory effect.

2.  The Committee asks the Department to explain why it is thought necessary to include the phrase "and 'disabled persons' is to be interpreted accordingly" in the definition of "disabled person" in regulation 3(1). It may be helpful to explain, by way of introduction, the general approach taken to these Regulations. These Regulations deal with a particular sub-set of public procurements and will need to exist alongside the well-established Public Contracts Regulations 2006 (SI 2006/5) and the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1) ("the 2006 Regulations")[1]. Directive 2009/81/EC, which these Regulations implement, is drafted in very similar terms to Directive 2004/18/EC, which the 2006 Regulations implement. Many of the provisions of the Directives are, in fact, identical. These Regulations are likely to be used by the same 'users' as the 2006 Regulations. Therefore, to avoid confusion and maintain a consistent approach to implementation, the general approach was for these Regulations, wherever possible, to mirror the provisions of the 2006 Regulations. The definition of "disabled person" in regulation 3(1) of these Regulations is identical to that in regulation 3(1) of the Public Contracts Regulations 2006. However, the Department accepts that, but for the interests of maintaining consistency with the 2006 Regulations described above, the phrase referred to would not have been necessary.

3.  Having regard to the definition of "land" in the Interpretation Act 1978, the Committee asks the Department to explain the purpose of the words from "including" to the end in regulation 7(1)(g). Again, regulation 7(1)(g) of these Regulations is identical to regulation 6(2)(e) of the Public Contracts Regulations 2006. However, having regard to the Interpretation Act 1978, the Department accepts that, but for the interests of maintaining consistency with the 2006 Regulations described above, the phrase referred to would not have been necessary.

4.  The Committee asks the Department to explain why it is thought necessary to include the phrase "and "recognised body" shall be interpreted accordingly" in the definition of "recognised bodies" in regulation 12(1). The definition of "recognised bodies" in regulation 12(1) of these Regulations is identical to that in regulation 9(1) of the Public Contracts Regulations 2006. However, the Department accepts that but for the interests of maintaining consistency with the 2006 Regulations described above, the phrase referred to would not have been necessary.

5.  As prices as well as values are expressly mentioned in the paragraphs referred to in regulation 21(19), the Committee asks the Department what the purpose of that provision is. The same formulation is used in regulation 21(19) of the Public Contracts Regulations 2006. Regulation 21(19) of these Regulations provides that the references to values in specified paragraphs of regulation 21 shall be interpreted as including price. Therefore, for example, regulation 21(5)(b)[2] of these Regulations provides that where a contract is to be awarded on the basis of an offer which is the most economically advantageous (as opposed to awarded on the basis of lowest price) the contracting authority shall base an electronic auction on price or the values (including price) of quantifiable elements of the tenders. This is necessary because, whilst values can include price, the term "values" is wider and a value can also be attributed to other elements, for example, such as delivery time and quality. In the context of regulation 21(5)(b), regulation 21(19) is necessary to make clear that an electronic auction is to be based on price or a combination of values which shall include price.

6.  The Committee asks the Department to explain the intended legal effect (if any) of regulation 23(3) on the competent authority receiving a request under it and how any such effect is achieved. This paragraph transposes Article 39(1) of Directive 2009/81/EC which provides that contracting authorities/entities "may, where they have doubts concerning the personal situation of such candidates or tenderers, also apply to the competent authorities to obtain any information they consider necessary on the personal situation of the candidates or tenderers concerned". Regulation 23(3) of these Regulations is identical to regulation 23(3) of the Public Contracts Regulations 2006. The Department does not consider that regulation 23(3) of these Regulations imposes an obligation on a relevant competent authority to provide any such information but is intended to make it clear that a contracting authority can apply to a relevant competent to ask for such information as it might otherwise be wrong for it to seek.

7.  The Committee asks the Department to explain what is intended to be covered by the "security clearance provisions of the United Kingdom" in regulation 38(3) and how that intention is given effect. This paragraph transposes Article 22 of Directive 2009/81/EC which provides that: "In the absence of harmonisation at Community level of national security clearance systems, Member States may provide that the measures and requirements referred to in the second subparagraph have to comply with their national provisions on security clearance". The intended effect of regulation 38(3) is that the measures and requirements specified by the contracting authority in the contract documents must comply with the Government's security clearance practices and procedures. For example, in a contract involving access to significant quantities of highly classified material the contracting authority could, in compliance with the security clearance provisions of the United Kingdom, require that economic operator's staff with access to that material be cleared to a high level. However, the contracting authority would be unlikely, in compliance with those provisions, to be able to specify the same requirement for a contract involving only material with a lower classification. In this way regulation 38(3) operates to ensure that, in specifying measures and requirements to ensure the security of information, the contracting authority cannot go beyond the security clearance provisions of the United Kingdom. The security clearance provisions of the United Kingdom are administrative in nature, rather than fixed requirements, and cannot be defined in law but at any one time, will be clear to contracting authorities, economic operators and sub-contractors.

Ministry of Defence

25th October 2011


1   The particular defence and security public procurements to which these Regulations apply are, in effect, 'carved out' of the application of the Public Contracts Regulations 2006 and the Public Contracts (Scotland) Regulations 2006. Back

2   Regulation 21(5)(b) transposes Article 48(2) of Directive 2009/81/EC which provides that: "the electronic auction shall be based on… price and/or the new values of the features of the tenders indicated in the contract documents, where the contract is awarded to the most economically advantageous tender". Back


 
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