Statutory Instrument No.62 of 2012 - European Union (Award of Contracts relating to Defence and Security) Regulations 2012.
Source: Iris Oifigiúl 18 2012-03-02 00309-00309

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paragraphs: (1) These Regulations may be cited as the European Union (Award of Contracts relating to Defence and Security) Regulations 2012.
(2) These Regulations come into operation on 30 March 2012.
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paragraphs: The object of these Regulations is to give effect to Directive 2009/81/EC1 of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC2 and 2004/18/EC3.
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paragraphs: (1) In these Regulations—
(a) a contracting authority, or
(b) a public undertaking, or,
(c) a private sector entity engaged in a prescribed activity under a special or exclusive right granted by the relevant competent authority of a Member State;
(a) is established by or under a law of the State for a public purpose, and
(b) does not have an industrial or commercial character, and
(c) is—
(i) financed wholly or partly by the State, or a local authority or another public authority, or
(ii) managed or supervised by the State, or by a local authority or another public authority, or
(iii) governed by a board, more than half of whose members are appointed by the State, or by a local authority or another public authority;
(a) its ownership of the undertaking, or
(b) its financial participation in the undertaking, or,
(c) the rules that govern the undertaking;
(a) an Act of the Oireachtas, or
(b) a statute that was in force in SaorstÃ¡t Ãireann immediately before the date of the coming into operation of the Constitution and that continues to be of full force and effect by virtue of Article 50 of the Constitution;
(2) In these Regulations (other than in paragraph (1)) every reference to contracting authority means, as the context requires, a reference to a contracting authority (within the meaning given to it by paragraph (1)) or contracting entity.
(3) A word or expression which is used in these Regulations and which is also used in the Defence and Security Contracts Directive, has unless the context otherwise requires, the same meaning in these Regulations as it has in that Directive.
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paragraphs: These Regulations apply to the following contracts awarded in the fields of defence and security for—
(a) the supply of military equipment, including any parts, components or subassemblies thereof,
(b) the supply of sensitive equipment, including any parts, components or subassemblies thereof,
(c) works, supplies and services directly related to the equipment referred to in paragraph (a) or (b) for any and all elements of its life cycle, or
(d) works and services for specifically military purposes or sensitive works and sensitive services,
(i) €412,000 for supply and service contracts;
(ii) €5,150,000 for works contracts.
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paragraphs: (1) Subject to paragraph (3), a contract for works, supplies or services to which these Regulations apply and for works, supplies or services to which the Public Authorities’ Contracts Regulations or Utility Undertakings Regulations apply shall be awarded by a contracting authority in accordance with these Regulations, provided that the award of a single contract is justified for objective reasons.
(2) Subject to paragraph (3), these Regulations shall not apply to the award of a contract which is for works, supplies or services to which these Regulations would otherwise apply, where the contract is also for works supplies or services to which neither these Regulations nor the Award of Public Authorities’ Contracts Regulations or Utility Undertakings Regulations apply provided that the award of a single contract is justified for objective reasons.
(3) The decision to award a single contract shall not be taken by a contracting authority in order that these Regulations or the Award of Public Authorities’ Contracts Regulations or Utility Undertakings Regulations do not apply to the contract.
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paragraphs: (1) A contracting authority shall estimate the total amount payable (net of value added tax) in respect of a contract that it proposes to award. In calculating the estimated total amount, it shall include any form of option and any renewals under the contract.
(2) The estimate shall be valid—
(a) when the contract notice is sent to the Office for Publications Office of the European Union for publication, or
(b) if such a notice is not required, when the contracting authority begins the contract awarding procedure.
(3) A contracting authority shall take into account any prizes or payments that it gives to candidates or tenderers when calculating the estimated value of a contract.
(4) A contracting authority shall not subdivide a works project, or a proposed purchase of a specified quantity of supplies or specified services, so as to prevent the project or purchase from coming within the scope of these Regulations.
(5) In calculating the estimated value of a works contract, a contracting authority shall take account of both the cost of the works and the total estimated value of the supply of products necessary for carrying out the works.
(6) If a proposed work or purchase of a service could result in contracts being awarded at the same time in the form of separate lots, the contracting authority shall take account of the total estimated value of all the lots.
(7) Subject to paragraph (8), these Regulations apply to the awarding of each lot referred to in paragraph (6) or (9) if the aggregate value of all of the lots is equal to or exceeds the threshold specified in Regulation 4.
(8) A contracting authority may decide that these Regulations should not apply in respect of lots referred to in paragraph (6) or (9) if the estimated value of which (net of value added tax) is less than €80,000 for supplying a service or €1,000,000 for works so long as the aggregate value of those lots does not exceed 20 per cent of the aggregate value of all of the lots.
(9) If a contracting authority proposes to acquire supplies of a similar kind and the acquisition could result in contracts being awarded at the same time in the form of separate lots, the authority shall take account of the total estimated value of all the lots when applying Regulation 4.
(10) If a supply contract relates to the leasing, hire, rental or hire purchase of a product for a fixed term, the value to be taken as a basis for calculating the estimated contract value is as follows:
(a) if that term is less than or equal to 12 months, the total estimated value for the term of the contract;
(b) if the term of the contract is greater than 12 months, the total value of the contract, including its estimated residual value.
(11) If a supply contract relates to the leasing, hire, rental or hire purchase of a product that is for a term that is not fixed or that cannot be defined, the value to be taken as a basis for calculating the estimated contract value is the monthly value multiplied by 48.
(12) If a supply contract, or a service contract, is of a recurring nature, or is likely to be renewed within a specified period, the contracting authority shall determine the estimated contract value on the basis of one of the following criteria:
(a) the total actual value of the successive contracts of the same kind awarded during the preceding 12 months or financial year, adjusted (so far as possible) to take account of the changes in quantity or value that are likely to occur during the 12 months following the initial contract;
(b) the total estimated value of the successive contracts awarded during the period of 12 months following the first supply of products or a service under the contract, or if the financial year of the authority is longer than 12 months, during that financial year.
(13) A contracting authority may not choose a method for calculating the estimated value of a contract in order to exclude the contract from the scope of these Regulations.
(14) When a contract to supply a service specifies a total price, the contracting authority concerned shall use the following as a basis for calculating the estimated value of the contract:
(a) if the contract is to provide insurance, the premium and other forms of remuneration payable for the service;
(b) if the contract is for the supply of a design, the fee, commission or other form of remuneration payable for the service.
(15) If a contract to supply a service is for a fixed term but does not specify or provide for a total price, the contracting authority concerned shall use the following as a basis for calculating the estimated value of the contract:
(a) if the contract is for a fixed term of 48 months or less, the total value of the contract for the full term;
(b) if the contract is for a fixed term of longer than 48 months or no term is fixed, the monthly value of the contract multiplied by 48.
(16) If a contracting authority enters into a framework agreement the authority shall take into account the maximum estimated value (free of value added tax) of all contracts that it envisages for the total period during which it expects the agreement or system to remain in operation.
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paragraphs: (1) A contracting authority may enter into a contract or framework agreement for works, products or a service with or through a central purchasing body.
(2) A contracting authority that enters into a contract or framework agreement for works, products or a service through a central purchasing body is taken to have complied with these Regulations to the extent that—
(a) the central purchasing body has complied with these Regulations, or
(b) when the central purchasing body is not a contracting authority, in relation to a contract or framework agreement, the contract award rules that the body applies are in accordance with these Regulations and the review procedures that it applies correspond with review procedures in Part 10.
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paragraphs: These Regulations do not apply to a contract the award of which is governed by special procedural rules—
(a) pursuant to an international agreement or arrangement involving one or more Member States and one or more third countries,
(b) pursuant to a concluded international agreement or arrangement relating to the stationing of armed forces and concerning the undertakings of a Member State or a third country, or
(c) of an international organisation purchasing for its purposes, or to contracts which shall be awarded by a Member State in accordance with those rules.
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paragraphs: These Regulations do not apply to the following kinds of contracts:
(a) a contract for which the provisions of these Regulations would oblige the Government to supply information the disclosure of which they consider contrary to the essential interests of the security of the State;
(b) a contract for the purposes of intelligence activities;
(c) a contract or framework agreement for supplying a service involving a research and development programme being conducted by or on behalf of the Government and at least one other Member State in relation to a new product or development of that product, at the conclusion of which the Minister shall furnish details to the Commission, as relevant, regarding research and development expenditure by the Government, cost-sharing by the Government, and intended share of purchases by the Government;
(d) a contract awarded in a country other than a Member State, including for civil purchases, carried out when forces are deployed outside the territory of the European Union where operational needs require them to be concluded with economic operators located in the area of operation;
(e) a service contract for the acquisition or rental, under whatever financial arrangements, of land, existing buildings or other immovable property, or concerning rights in respect thereof;
(f) a contract awarded by the Government to the government of any state outside the State relating to—
(i) the supply of military equipment or sensitive equipment,
(ii) works and services directly linked to other equipment, or
(iii) works and services specifically for military purposes, or sensitive works and sensitive services;
(g) a contract for arbitration and conciliation services;
(h) other than a contract for insurance services, a contract for financial services;
(i) a contract of employment;
(j) a contract for supplying a service involving research and development, other than such a service in relation to which the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, on condition that the service provided is wholly paid for by the contracting authority.
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paragraphs: (1) A contracting authority may—
(a) reserve the right to participate in the award of a contract to sheltered workshops, or
(b) provide for such a contract to be performed only by participants in a sheltered employment program,
(2) A contracting authority that reserves a contract under this Regulation shall specify the reservation in the relevant contract notice.
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paragraphs: In awarding a contract, a contracting authority shall—
(a) treat all economic operators equally and without discrimination, and
(b) act in a transparent way.
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paragraphs: (1) If a candidate or tenderer for a service contract is, under the law of the Member State in which the candidate or tenderer is established, entitled to supply a particular service, a contracting authority shall not reject the candidate or tenderer only on the ground that, under the law of the State the candidate or tenderer is required to be either a natural person or a body corporate.
(2) However, in the case of a service or works contract or a supply contract that also provides for the supply of a service or for siting or installation operations, the contracting authority may require tenderers that are not natural persons to indicate in their tenders or their requests to participate the names and relevant professional qualifications of the staff who would be responsible for performing the contract.
(3) A group of economic operators may submit a tender or present itself as a candidate.
(4) A contracting authority may not require a group of economic operators to assume a particular legal form as a condition of being allowed to submit to the authority a tender or a request to participate in a tender. However, if the contracting authority awards a contract to such a group, it may require the group to assume such a form, but only if it is of the opinion that the imposition of the requirement is necessary for the satisfactory performance of the contract.