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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