Section 7 - Contract Procedure Rules

Content

Definitions

Part 1: Introduction
1.0 Compliance with Procedure Rules
2.0 Annual Procurement Plan
3.0 Delegated Authority
4.0 Exceptions to Contract Procedure Rules

Part 2: Procurement Contracts
5.0 Pre-procurement Procedure
6.0 Estimating the Contract Value
7.0 Low Value Procurement (Below £5,800*)
8.0 Medium Value Procurement (£6,000-£57,000*)
9.0 Emergency Works (during and outside Office Hours)
10.0 High Value Procurement (Above £57,000*)
- Not subject to the EU Regulations
11.0 Exceptions from the Tendering Procedure
12.0 High Value Procurement (Above £57,000*)
- Subject to the EU Regulations
13.0 Contracts Subject to the Regulations
14.0 Open Procedure
15.0 Restricted Procedure
16.0 Negotiated Procedure

Part 3: The Competitive Tendering Procedures (Whether or not the EU Procurement Regulations Apply)
17.0 Pre-qualification
18.0 The Invitation to Tender
19.0 Submission and Opening of Tenders
20.0 Late Tenders
21.0 Error In Tender
22.0 Tender Evaluation
23.0 Post Tender Negotiation
24.0 Awarding Contracts
25.0 Debriefing
26.0 Contract Award Notice
27.0 Letter of Intent
28.0 Contract Terms and Conditions
29.0 Execution of Contract
30.0 Records of Tenders and Contracts
31.0 Monitoring of Contracts after contract award
32.0 Framework Agreements
33.0 Joint/Collaborative Procurement
34.0 Standard Conditions of Contract
- Nominated and Names Sub-contractors
- Assignment
- Variations
- Performance Bonds
- Specifications and Standards
- Insurance and Health & Safety
- Health and Safety
- Equality
- Fair Wages
- Metal Detectors and Objects Found
- Data Protection
- Freedom of Information
- Human Rights
- Confidentiality of contract sum until award of contract
35.0 Contract Extension
36.0 Termination of Contract
37.0 Gifts and Hospitality
38.0 Statistical Returns
39.0 Review and Amendment of Contract Procedure Rules

Schedule 1 - Categories of Services Part A and Part B (EU Procurement Regulations)

Definitions

"Annual Procurement Plan"
A plan identifying all procurement projects above £55,300 so that appropriate resources can be identified. It also provides a basis for information provided to suppliers to give advance notice of bidding opportunities;

"Authorised Officer"
A person with appropriate delegated authority to act on the Council's behalf;

"Best Value for Money"
The optimum combination of whole life costs and benefits to meet the customer's requirements. This term equates to the EU procurement requirement of obtaining the "most economically advantageous offer";

"Contract Register"
A register held and maintained by the Council containing details of high value contracts entered into by the Council above a threshold value of £55,300;

"Framework Agreement"
An agreement which allows the Council to call off from a supplier to provide supplies, services or works in accordance with the terms of the agreement. The Framework Agreement itself usually constitutes a non-binding offer with no obligation on the Council to call off from the supplier. If the Council calls off from the supplier a binding contract comes into being. A framework Agreement can be a binding agreement where it is executed as a deed;

"ITN"
Invitation to negotiate;

"ITT"
Invitation to tender;

"OJEU"
Official Journal of the European Union;

"PIN"
Prior Information Notice for publication in OJEU

"Register of Tenders"
A register held and maintained by the Council containing details of tenders received by the Council for high value procurement above a threshold value of £55,300;

"Regulations"
The UK regulations implementing the EU public procurement directives.

"Works Contracts"
A contract for the carrying out of civil engineering or building works.

Part 1: INTRODUCTION

1.0 Compliance with Procedure Rules

1.1 In these contract procedure rules, the expression 'the Council' shall be deemed to include reference to the Cabinet, Director, Head of Service or otherwise Authorised Officer, acting in accordance with delegated authority on behalf of the Council.

1.2 The Cabinet, Directors and Heads of Services shall have decision making powers for all high value strategic procurement decisions, and the Authorised Officer shall be responsible and accountable for all day-to-day procurement project management issues.

1.3 These procedure rules apply to contracts for any supplies, services or works and the term 'contractor' shall be deemed to include service provider or supplier and shall include any sole trader, partnership or company.

1.4 Any consultant used by the Council shall be appointed in accordance with these procedure rules. Where the Council uses consultants to act on its behalf in relation to any procurement, then the Authorised Officer shall ensure that the consultants carry out any procurement in accordance with these procedure rules. No consultant shall make any decision on whether to award a contract or who a contract should be awarded to. It shall be a condition of the engagement of the service of any consultants that they shall at any time during the carrying out of the contract produce to the Council, on request, all records maintained by them in relation to the contract; and on completion of the contract to forward all such records to the Authorised Officer. The Authorised Officer shall ensure that the consultant's performance is monitored in accordance with the terms and conditions upon which they were appointed.

1.5 Every contract entered into by the Council shall be entered into in accordance with the Council's functions and shall comply with:

(a) all relevant statutory provisions;

(b) the relevant European procurement rules (i.e. the EC Treaty, the general principles of EU law and the EU public procurement directives implemented by the UK regulations);

(c) the Council's constitution including these contract procedure rules, the Council's financial regulations and scheme of delegation; and

(d) the Council's strategic objectives, procurement policy and strategies.

1.6 The highest standards of probity are required of all officers and members involved in the procurement, award and management of Council contracts.

1.7 In these contract procedure rules, the expression 'the Regulations' shall be deemed to refer to the UK Regulations implementing the EU Public Procurement Directives, which include the Public Works Contracts Regulations 1991 (S.I. 1991 No. 2680), the Public Services Contracts Regulations 1993 (S.I. 1993 No. 3228), the Public Supply Contracts Regulations 1995 (S.I. 1995 No. 201), the Public Contracts (Works, Services and Supply) (Amendment) Regulations (S.I. 2000 No. 2009) and the Public Contract (Works, Services and Supply) and Utilities Contracts (Amended) Regulations 2003 (S.I. 2003 No. 46).

2.0 Annual Procurement Plan

2.1 For each financial year, the Council Corporate Procurement Group shall agree a Procurement Plan setting out its current contracts for supplies, services and works valued above £55,300 to be procured for the forthcoming three financial years.

2.2 At the beginning of each financial year or as soon as possible thereafter, if applicable, the Council shall publish a Prior Information Notice for publication in the OJEU Official Journal of the European Union, listing the contracts for supplies and services which it expects to procure for the forthcoming financial year, which exceed the OJEU financial thresholds. In relation to contracts for works, the Council shall publish a Prior Information Notice for publication in the OJEU, when the works are approved. Please refer to paragraph 12.2 for the OJEU financial thresholds.

3.0 Delegated Authority

3.1 Any procurement carried out on behalf of the Council may only be undertaken by officers with the appropriate delegated authority to carry out such tasks as set out in the Council's scheme of delegation. Officers with delegated authority may only delegate to other officers who have the skills and knowledge appropriate to the task. Officers shall be informed by their Head of Service of the extent of any delegated authority and any appropriate financial thresholds for each procurement.

3.2 Within approved budgets and in accordance with the Annual Procurement Plan where applicable, Heads of Service may authorise their staff to place orders against Framework Agreements which have been entered into by the Council. See paragraph 32.0 for more details on Framework Agreements.

4.0 Exceptions to Contract Procedure Rules

4.1 No exception to these procedure rules can be made unless authorised by the Chief Executive or a Director of the Council, following consultation with the Monitoring Officer and the appropriate portfolio holder or (in his/her absence) the Leader or the Deputy Leader of the Council, and only in exceptional circumstances.  Where the Chief Executive or a Director authorises an exception the Chief Executive/Director shall ensure that the Chairman and Vice-Chairman of the Performance Monitoring Panel are notified of the exception, and that the details of the exception are entered into a register which shall be kept by the Head of Customer, Legal and Member Services.  The Chief Executive/Director shall record (i) which member was consulted on the proposed exception, (ii) the date on which the consultation took place, (iii) the outcome of that consultation, (iv) the reasons why an exception to the procedure rules was considered necessary and (v) the date on which the Chairman and Vice-Chairman of the Performance Monitoring Panel were notified of the decision.  Exceptions to the procedure rules may not be made retrospectively.

4.2 For the permitted exemptions that apply to the competitive Tendering Procedure, please refer to paragraph 11.0.

Part 2: PROCUREMENT CONTRACTS

5.0 Pre-Procurement Procedures

5.1 Before commencing a high value strategic procurement, it is essential that the Authorised Officer leading the procurement has identified the business need and fully assessed all available options for meeting those needs. Consideration shall be given to the Council's Corporate Procurement Strategy and Procurement Guidance and Procedures as appropriate.

5.2 Before undertaking a procurement the Authorised Officer shall:

(a) consider all procurement/service delivery options available for the option appraisal

(b) consider whether there is an appropriate Framework Agreement that should be used

(c) establish a business case for all high value procurement

(d) be satisfied that a detailed specification and conditions forming the basis of the contract, and a detailed, full and reasonable estimate of the whole life cost of the contract, has been prepared.

6.0 Estimating the Contract Value

6.1 Contract values should be calculated in accordance with the Regulations even when the Regulations do not apply, to ensure consistency. The Council shall make the best use of its purchasing powers by aggregating purchases wherever possible. Particular supplies, services or works shall not be split in an attempt to avoid the applicability of these procedure rules or the Regulations.

7.0 Low Value Procurement (Below £5,800*)

7.1 Competitive quotations are not required for contracts or orders with an estimated value of below £5,800. The Authorised Officer shall obtain a written quotation from the supplier before a formal purchase order can be issued. The purchase order form shall specify the supplies, services or works to be provided and set out the price and terms of payments. Any appropriate Framework Agreements in place shall be used wherever possible, provided the contract procedure requirements in relation to delegated authority are met.

7.2 Heads of Service are responsible for ensuring that value for money is achieved and should obtain competitive quotations wherever it is considered appropriate.

8.0 Medium Value Procurement (£6,000 - £57,000*) or
(£6,000 - £115,000* for Work contracts)

8.1 For contracts or orders of medium value, at least three written competitive quotations shall be invited before a formal purchase order is issued specifying the supplies, services or works to be provided and set out the price and terms of payments. Where applicable, quotations should be sought from contractors on the Council's Approved List of Contractors or the Constructionline database. Faxed or emailed quotations are acceptable for these purposes.

8.2 Where it is not possible to obtain three competitive quotations the Authorised Officer must keep a record of the reasons for this.

8.3 The Authorised Officer concerned shall maintain suitable records indicating the quotations received and the action taken relating to the selection and invitation of suppliers, the receiving and valuation of quotations and the award of the works to the successful contractor.

9.0 Emergency Works (during and outside Office Hours)

9.1 Where the nature of the works is such that a quote cannot be provided because of an emergency situation, an order shall be raised and issued to the Contractor within 24 hours of the emergency works being ordered. This shall apply to emergency works for all low and medium contract values.

10.0 High Value Procurement (Above £57,000*) - Not subject to the EU Regulations or (Above £115,000* for Works contracts)

10.1 Prior to the commencement of all high value strategic procurement, whether or not the EU Regulations apply, the Authorised Officer shall produce a business case for all new and one-off procurement. This will set out the scope of the procurement, including identifying the business needs, outlining the strategic objectives and benefits which will be met, identifying the preliminary options available for meeting the business need, the project risks, the resources needed, the project management arrangements, assessing whole life costs and setting a realistic timeframe.

10.2 Where the risk in a specific procurement is perceived to be high, then that procurement shall be treated as a High Value Procurement.

10.3 Any procurement that may involve a transfer of staff shall be treated as a High Value Procurement.

10.4 For procurement valued at above £57,000, that are not subject to the Regulations, tenders shall be obtained using one of the following tendering and selection procedures, subject to the exceptions under paragraph 11 of these procedure rules.

10.4.1 Open Competitive Tendering

(a) At least fourteen days public notice shall be published in one or more of the local newspapers circulating in the district, the Council's website and any appropriate national press and/or trade journal in order to target the appropriate market for the particular contract; stating the nature and purpose of the contract, the evaluation criteria, inviting tenders for its execution and stating the last date when tenders will be accepted.

10.4.2 Selective Tendering from an Approved List of Contractors

(a) The Council may maintain approved lists of contractors that meet its pre-qualification requirements. Contracts that are not subject to the Regulations may be invited from contractors included on the Council's approved list, for supplies, services or works contracts. Where the Council intends to use an approved list of contractors, the selection of which contractors are to be included on the list should itself be advertised in the manner described in (10.4.1) above.

(b) The Council may use the Constructionline database, for the selection of contractors that meets its pre-qualification requirements. Contracts that are not subject to the Regulations may be invited from contractors included on the Constructionline database, for supplies, services or works contracts.

(c) Invitations to tender must be sent to at least four suitable contractors on the Approved List or Constructionline database, or if fewer than four to all such contractors.

(d) Where it is not possible to obtain four competitive tenders the Authorised Officer must keep a record of the reasons for this.

(e) Approved Lists of Contractors shall be compiled and maintained by the Director or Head of Service and shall:

(i) contain the names of all contractors who wish to be included and who have been approved by the Director or Head of Service

(ii) indicate in respect of a contractor whose name is included on the list, the categories of contract and the value or amounts in respect of those categories, for which approval has been given

(iii) be reviewed at intervals of not more than three years

10.4.3 Selective Tendering by Advertisement for Specific Contracts

(a) Public notice is given in respect of a particular contract in the manner described in (10.4.1) above inviting applications from contractors who undertake such works to be placed on a supplier selection list to be approved by the Director or Head of Service for that particular procurement exercise, from which contractors selected by the Chief Executive, Head of Service or Director, in consultation with the appropriate portfolio holder, will be invited to submit tenders for the execution of the work.

(b) The notice must set out details of the proposed contract, and invite interested contractors to apply within the specified period (being not less than fourteen days) for permission to be added to the selection list. All responses to advertisements must include sufficient information to demonstrate that individual contractors are technically and financially capable of undertaking the work.

(c) Invitations to tender must be sent to at least four suitable contractors on the supplier selection list, or if fewer than four, all such contractors.

10.4.4 Serial Negotiated Contracts

(a) The proposed contract for the execution of work forms part of a serial programme, the terms having been negotiated with the contractor on the basis of the rates and prices contained in an initial contract, which has been awarded competitively, following an invitation to tender in accordance with sub-sections 10.4.1, 10.4.2 or 10.4.3 above.

10.4.5 Single Negotiated Contracts

(a) A single negotiated contract may be used where the Chief Executive, Director or Head of Service, in consultation with the appropriate portfolio holder, considers it desirable in the Council's best interests that a contract be negotiated with a contractor already approved on the Council's list of contractors or on the Constructionline database.

10.4.6 Partnership

(a) Partnering shall be used where the Council wishes to enter into a longer term contract with a single service provider, for the supply of supplies, services or works on the principles of shared objectives, risk, resources and continuous improvement in performance.

(b) The Authorised Officer shall ensure that prior approval for the proposed partnership agreement is obtained from the Head of Service or Director concerned prior to the commencement of the tendering and selection procedures.

(c) All partnership agreements shall include where relevant:

(i) clear vision and principles for the partnership

(ii) clear expectations of the contribution that the partnership will make to the Council's objectives

(iii) measurable output specifications and benefits

(iv) mutual commitment to the success of the partnership, with targets for continuous improvement

(v) service improvement/development plan

(vi) the responsibilities and contribution expected from each party

(vii) the governance arrangements for the partnership

(viii) the basis for resolving dispute and agreeing changes to the contract

(ix) the risks involved and how they are apportioned and managed between the parties

(x) open book accounting

(xi) profit sharing

(xii) asset transfer

(xiii) quality management systems

(d) The Partnership agreement shall be tendered in accordance with these procedure rules. Legal advice should be sought as appropriate.

11.0 Exceptions from the Tendering Procedure

11.1 There shall be no requirement for tenders to be invited under the provisions of these procedure rules if any of the following apply:

(a) Where for technical or aesthetic reasons the purchase of goods or materials, or the execution of works or supply of services are of a specialised nature, which in the opinion of the Head of Service or Director concerned are obtainable only from one firm or are sold only at a fixed price and no reasonably satisfactory alternative is available and there is no genuine competition;

(b) the works or services to be executed or the goods or materials to be supplied constitute an extension of an existing contract; the contract is for the execution of works or services or the supply of goods or materials authorised by the Chief Executive, Head of Service or Director concerned as being required urgently; the work to be executed or the goods or materials to be supplied consist of repairs to or the supply of parts of existing proprietary machinery or plant;

(c) the instruction of, advice from or service provided by Counsel or instruction to solicitors to act on the Council's behalf;

(d) tenders or quotations have been invited on behalf of any consortium, collaboration or similar body, of which the Council is a member, or has an agreement with, in accordance with any method adopted by such a body. Provided that where tenders or quotations are so invited by an officer of the Council, the delivery opening and acceptance of tenders shall comply with the provisions of these procedure rules or the Regulations;

11.2 None of the exceptions detailed in Rule 11.1 above may be applied unless authorised by the Chief Executive or a Director of the Council, following consultation with the Monitoring Officer and the appropriate portfolio holder or (in his/her absence) the Leader or Deputy Leader of the Council.  Where the Chief Executive or a Director authorises an exception the Chief Executive/Director shall ensure that the Chairman and Vice-Chairman of the Performance Monitoring Panel are notified of the exception, and that the details of the exception are entered into a register which shall be kept by the Head of Customer, Legal and Member Services.  The Chief Executive/Director shall record (i) which member was consulted on the proposed exception, (ii) the date on which the consultation took place, (iii) the outcome of that consultation (iv) the reasons why an exception was considered necessary and (v) the date on which the Chairman and Vice-Chairman of the Performance Monitoring Panel were notified of the decision.

12.  High Value Procurement- Subject to the EU Regulations

12.1 For procurement valued at above £55,300, that are subject to the Regulations, a contract award procedure shall be conducted in accordance with these procedure rules. The outcome of the contract award procedure shall be recorded in the Contract Register.

12.2 The Regulations apply to contracts above certain financial thresholds awarded by the Council for supplies, services and works. The OJEU thresholds for the application of the Regulations, excluding VAT, are effective from 1 January 2008, for Public Services Contracts from 1 January 2008:

(a) Public Works (93/37/EEC) £3,497,313

(b) Public Services (92/50/EEC) £139,893

(c) Public Supplies (93/36/EEC) £139,893

These financial thresholds are reviewed every couple of years by the OJEU.

12.3 For all procurement governed by the Regulations, prior approval of the proposed contract award procedure including the pre-qualification and evaluation criteria to be applied, shall be sought from the Head of Service concerned.

12.4 There are three contract award procedures i.e. open, restricted or negotiated available under the regulations, these are discussed further in paragraphs 14 to 16.

13.0 Contracts Subject to the Regulations

13.1 Where an estimated value of a contract exceeds the current EU thresholds then the contract shall be tendered in accordance with the Regulations. Under the Regulations, the contract may be tendered under the open, restricted or, in exceptional circumstances exhaustively set out in the Regulations, the negotiated procedure. A contract notice in the prescribed form shall be published in the OJEU in order to invite tenders for or expression of interest for Part A Services contracts and supplies and works contracts subject to the rules. Contracts for Part B Services do not need to be advertised in the OJEU. However, the rules relating to technical specifications and the publication of contract award notices shall be observed for all contracts, as shall the EC Treaty and the general principles of EU law including non-discrimination, equal treatment, proportionality and transparency.

13.2 Service contracts are divided into Parts A and B. Part A Services contracts are subject to the full scope of the Regulations and shall be advertised in the OJEU. For Part B Services there is no requirement in the Regulations for these contracts to be subject to competition, these services are only subject to the requirements in the Regulations applying to technical specifications and post award information. Please refer to the list of Part A and Part B Services in Schedule 1.

13.3 The Regulations set out the minimum timescale for receipt of expressions of interest and tenders (bids for the negotiated procedure). Where the Council has published a Prior Information Notice (PIN) announcing its forthcoming contracts for the year ahead, then the Council may rely on reduced timescales if appropriate.

14.0 Open Procedure

14.1 The Council publishes a contract notice allowing a minimum of 52 days for return of tender from date of dispatch or 36 days where a PIN has been published. All suppliers expressing an interest are invited to tender. If publication of a notice in OJEU is not required, then the notice shall be published in the manner described in paragraph 10.4.1. The advertisement shall contain details of the proposed contract and specify a time limit within which interested parties may express an interest in tendering for the contract. After the expiry of the deadline date for expressions of interest, the Council shall send any party expressing an interest an Invitation to Tender (ITT). The ITT shall specify the date and time for tenders to be received.

14.2 Publication of a contract notice in OJEU will not be required under the open, restricted or negotiated procedures for the following services:

(a) Part B (residual) services

(b) Research & Development Services (Category 8)

(c) The following Telecommunication services in Category 5

CPC 7524 Television and Radio Broadcast services

CPC 7525 Interconnection services

CPC 7526 integrated telecommunication services

(d) Subsidised services contracts under regulation 25 of the Public Services Contract Regulations 1993.

15.0 Restricted Procedure

15.1 The Council publishes a contract notice allowing a minimum of 37 days to register an interest from date of dispatch, and 40 days for return of tender from date of dispatch of ITT or 26 days where a PIN has been published. Only those suppliers selected by the Council are invited to tender. Suppliers shall be selected on the basis of published pre-qualification criteria.

15.2 If publication of a notice in the OJEU is not required, the advertising requirements are the same as in the open procedure, except that the notice shall state that a restricted procedure is being used. If the Regulations apply a minimum of five suppliers shall be invited to tender.

15.3 The timescales for restricted procedures shall be accelerated in cases of genuine urgency, under the accelerated procedure, to 15 days for the register of interest from date of dispatch of contract notice and 10 days for the return of tenders from date of dispatch of ITT.

16.0 Negotiated Procedure

16.1 The Council publishes a contract notice allowing a minimum of 37 days to register an interest. Only those suppliers selected by the Council are invited to tender. Suppliers shall be selected on the basis of published pre-qualification criteria.

16.2 If publication of a notice in the OJEU is not required, the advertising requirements are the same as in the restricted procedure, except where the procurement falls within one of the exemption provisions of the Regulations. Any notice shall state that a negotiated procedure is being used.

16.3 A minimum of three suppliers should be invited to negotiate following publication of a notice.

16.4 At least two officers, one of whom shall be a Head of Service or their delegate, shall be present at all times during negotiations.

16.5 The Council shall keep proper records of all negotiations and these shall be signed as such by all participants.

16.6 At all times during the negotiations, the Council shall consider and implement the principles of non-discrimination, equal treatment and transparency.

16.7 The timescales for negotiated procedures shall be accelerated in cases of genuine urgency, under the accelerated procedure, to 15 days for the register of interest from date of dispatch of contract notice.

Part 3: THE COMPETITIVE TENDERING PROCEDURES (WHETHER OR NOT THE EU PROCUREMENT REGULATIONS APPLY)

17.0 Pre-qualification

17.1 The Council shall only invite tenders from contractors if it is satisfied as to the contractors:

(a) eligibility

(b) financial standing

(c) technical capacity.

17.2 Technical capacity includes the Contractor's quality management systems including human resources, health and safety, equality, sustainability issues and risk management where relevant to the performance of the contract.

17.3 Any procurement subject to the Regulations shall comply with the appropriate pre-qualification criteria contained in the Regulations.

18.0 The Invitation to Tender

18.1 The Invitation to Tender (ITT) or Invitation to Negotiate (ITN) shall include details of the Council's requirements for the particular contract including:

(a) a description of the supplies, services or works being procured;

(b) the procurement timetable including the tender return date and time, which shall allow a reasonable period for the applicants to prepare their tenders;

(c) a statement on whether any variations on the requirements specified are permissible;

(d) the Council's terms and conditions of contract;

(e) the evaluation criteria including any weightings as considered appropriate;

(f) pricing mechanism and instructions for completion;

(g) whether the Council is of the view that the Transfer of Undertaking (Protection of Employment) Regulations 1981(TUPE) may apply, in accordance with the requirements of the ODPM Circular 03/2003 'Local Government Act 1999: Part 1 Best Value & Performance Improvement;

(h) the form and content of the method statement to be provided;

(i) rules for submitting of tenders and whether tenders may be submitted electronically;

(j) any further information which will inform or assist tenderers in preparing tenders.

19.0 Submission and Opening of Tenders

19.1 Tenders shall be submitted in accordance with requirements set out in the ITT. Any tenders received shall be addressed to the Head of Legal and Member Services in a sealed envelope endorsed with the word "Tender" followed by the subject matter to which it relates and the closing date and time. These envelopes shall not bear any distinguishing mark intended to indicate the identity of the sender. Tenders shall be kept in a safe place by the Head of Legal and Member Services and remain unopened until the time and date specified for its opening. No tenders received after the specified date and time for receipt of tenders shall be accepted or considered by the Council.

19.2 Tenders shall be opened by the Authorised Officer and at least one other officer nominated by the Head of Legal and Member services. The relevant Cabinet Portfolio Holder shall also attend. An immediate record should be made of the tenders received including names, addresses and the date and time of opening. The Register of Tenders should separately identify any tenders opened in error (i.e. before the specified date and time of return).

20.0 Late Tenders

20.1 No tender received after the specified time and date shall be considered and any such late tender shall be returned promptly to the tenderer by the Head of Legal and Member Services. The tender may be opened to ascertain the name and address of the tenderer but no details of the tender shall be disclosed or recorded.

21.0 Error In Tender

21.1 Errors in tenders shall be dealt with in one of the following two ways:

(a) the tenderer shall be given details of the error(s) found during the examination of the tender and shall be given the opportunity of confirming without amendment or withdrawing the tender; or

(b) amending the tender to correct genuine arithmetic error(s) provided that in this case, apart from these genuine arithmetic errors, no other adjustment, revision or qualification is permitted.

21.2 Tender documents must state which method will be used for dealing with errors in tenders.

22.0 Tender Evaluation

22.1 Tenders above £55,300 that are not subject to the Regulations shall be evaluated in accordance with the evaluation criteria, which was notified to tenderers in the Invitation to Tender. Tenders that are subject to the Regulations shall be evaluated in accordance with the relevant EU Regulation and the evaluation criteria set out in the Invitation to Tender or Invitation to Negotiate. All contracts shall be awarded on the basis of the offer which represents best value for money to the Council, which is the optimum combination of whole-life cost and quality. The evaluation criteria shall be predetermined and listed in the Invitation to Tender document, in order of importance if applicable. The evaluation criteria shall be strictly observed at all times throughout the contract award procedure by anyone involved in the tender evaluation.

23.0 Post Tender Negotiation

23.1 Negotiations after the submission of a quotation or tender in accordance with these procedure rules may only be commenced after the Head of Finance and the Head of Legal and Member Services have given written approval of the procedures to be adopted. A written record of any alterations to the quotation or tender as a consequence of the negotiations must be maintained by the Head of Service concerned. A contract may only be entered into after the Head of Finance and the Head of Legal and Member Services have given written approval to the outcome of the negotiations.

23.2 Where a procurement is conducted in accordance with the Regulations through either the open or restricted procedures no post tender negotiations are permitted. The Council may seek clarification from supplier where appropriate.

24.0 Awarding Contracts

24.1 The Council shall only award a contract where it demonstrates best value for money.

24.2 The decision to award a high value contract may only be made by the Chief Executive, Head of Service or Director concerned, in consultation with the appropriate portfolio holder. The Authorised Officer should ensure that the budget holder responsible for the contract has sufficient funds in place to sustain the contract prior to award.

24.3 At all times during the procurement (whether subject to the Regulations or not), the Council shall consider and implement the principles of non-discrimination, equal treatment and transparency, to make sure that propriety and regularity are observed.

25.0 Debriefing

25.1 The Authorised Officer responsible for each procurement, shall provide a debriefing to unsuccessful tenderers on written request.

25.2 The Authorised Officer is obliged to reply in writing within 15 days of the date of the request from the unsuccessful applicant/tenderer, informing them of the reasons why they have been unsuccessful on this occasion.

25.3 The debriefing should inform the tenderer of the chararcteristics and relative advantages of the successful tenderer, as well as their name and where appropriate the tender price (except where publication of the price would prejudice legitimate commercial interest). However, details of other submissions or comparisons with other tenderers will not be discussed, because of commercial confidentiality.

26.0 Contract Award Notice

26.1 Where a contract has been tendered in accordance with the Regulations, the Council shall publish a contract award notice in OJEU no later than 48 days after the date of award of the contract, specifying the successful contractor and the price paid (except where publication of the price would prejudice legitimate commercial interest).

26.2 Contract award notices are not required for Part B Services except where the Council published a contract notice prior to commencement of the procurement.

27.0 Letter of Intent

27.1 Letters of intent shall only be used in exceptional circumstances as follows:

(a) Where a supplier is required to provide supplies, services or works prior to formal written acceptance by the Council; or

(b) Where the Council's form of tender does not include a statement that until such time as a formal contract is executed, the Council's written acceptance of a tender shall bind the parties into a contractual relationship.

28.0 Contract Terms and Conditions

28.1 Contracts shall be entered into on the Council's Standard Conditions of Contract. Exceptions to this rule must be approved by the Chief Executive or a Director of the Council under paragraph 4.

28.2 Whether or not the contract is subject to the Regulations, the rules relating to technical specifications shall be followed and any reference to a technical standard, make or type shall be accompanied by the word "or equivalent". Where a contract is subject to the EU Regulations, this requirement will apply to both Part A and Part B Services.

29.0 Execution of Contracts

29.1 Every contract shall be in writing and signed by two Officers, the Authorised Officer and another with appropriate delegated authority to carry out such tasks, as set out in the Council's scheme of delegation. All high value contracts shall be in writing and under seal in a form approved by the Head of Legal and Member Services, and shall specify:

(a) the work to be done, or services, goods or materials to be provided including any appropriate technical specification(s);

(b) the price to be paid with a statement of discounts or other deductions; and

(c) the time or times within which the contract is to be performed.

29.2 The Chief Executive, Director or Head of Service concerned shall, within 28 days of a decision to award a high value contract, notify the Head of Customer, Legal and Member Services and provide two full copies of the contract documentation for formal completion and registration in the seal register and contract register.

30.0 Records of Tenders and Contracts

30.1 An officer nominated by the Head of Legal and Member services shall maintain a list of all tenders received, on the Register of Tenders.

30.2 A Contracts Register of all contracts awarded above £57,000 shall be maintained by the Head of Legal and Member Services.

30.3 For every individual contract a Contracts file shall be maintained, by the Authorised Officer.

31.0 Monitoring of Contracts after contract award

31.1 Every contract shall be monitored on a regular basis, following the award of a contract, to ensure the contract requirements are being met to the Council's satisfaction and that written records are being kept of the monitoring arrangements in place.

31.2 Further details on the monitoring of contracts after contract award, can be found in the Council's 'Procurement Guidance and Procedures'.

32.0 Framework Agreements

32.1 Framework Agreements are used where the Council wishes to contract for the supply of supplies, services or works without conducting a new procurement exercise. However, the Framework Agreement may include within its terms a requirement for a mini competitive exercise between those suppliers who are parties to the Framework Agreement. Any Framework Agreement shall be tendered in accordance with these procedure rules. Where the Council has entered into a Framework Agreement through procurement or is able to call off from existing Framework Agreements procured on a regional or national basis; including GCAT (for goods), SCAT (for services) and LCAT agreements (for legal services) which are administered by the Office of Government Commerce 'buying solutions', then the Council may benefit from using those contracts without entering into a separate procurement. Legal advice should be sought as appropriate.

33.0 Joint/Collaborative Procurement

33.1 Joint or collaborative arrangements may be entered into with other Local Authorities or public bodies/ agencies including membership or use of Purchasing Consortia in order to save time and cost involved in tendering individual contracts. Approval by the Head of Service concerned must be obtained prior to the commencement of any new agreement on behalf of the Council. The Council is currently a member of the Eastern Shires Purchasing Organisation (ESPO).

33.2 Approval shall only be given where the joint or collaborative procurement arrangements assures compliance with the EU Regulations.

34.0 Standard Conditions of Contract

34.1 The sub-sections below shall be incorporated into all contracts, where they are appropriate to the circumstances, unless a recognised standard form is to be used, which satisfies all requirements below:

34.2 Nominated and Named Sub-Contractors

(a) If a sub-contractor, supplier or consultant is to be nominated or named to a main contractor the reference must be accompanied by the words "or equivalent"; quotation or tenders must be invited in accordance with these procedure rules as laid down in sub-section 7.0, 8.0 and 10.0, and the terms of the invitation shall be compatible with the main contract.

(b) The Chief Executive, Directors or Head of Service concerned are authorised to nominate to the main contractor, the sub-contractor, supplier or consultant or equivalent whose tender, obtained in accordance with either of the preceding sub-sections, is in their opinion, the most satisfactory and represents best value for money to the Council.

34.3 Assignment

(a) In every written contract for supplies, services or works the following clause shall be inserted:

"The contractor shall be prohibited from transferring or assigning directly or indirectly, to any person or persons whatever, any portion of this contract without the written permission of the Council. Sub-letting of any part(s) of the work, except to the extent permitted in writing by the Authorised Officer, shall be prohibited."

34.4 Variations

(a) All variations must be in the form of written instructions to the contractor, and any financial implications must be costed before the work is authorised. In cases where this would cause serious disruption to the contract, or where immediate action is necessary to prevent danger or damage, the instruction may be issued without prior costing, but shall be costed within seven working days of the instruction being issued.

(b) The cost of variations must be set against contingencies or accrued savings elsewhere in the contract. Where the cost of a variation(s) is likely to cause the approved contract sum to be exceeded, the Chief Executive, Head of Service or Director concerned shall seek the necessary approval as set out in Financial Regulations and Procedures prior to the variation being issued.

34.5 Performance Bonds

(a) Where a contract is estimated to exceed £115,000* in value and is for the supply of supplies, services or works by a particular date the Chief Executive, Head of Service or Director concerned shall consider whether the Council should require security for its due performance and in consultation with the Authorised Officer shall specify in the conditions of tender the nature and amount of the security to be given. Where the Council requires security, the Council shall require the contractor to take out a performance bond or other sufficient security for the due performance of the contract.

34.6 Specifications and Standards

(a) All tenders for supplies, services or works shall, except to the extent that the Council in a particular case or specified categories of contract otherwise decides, shall be based on a definite specification.

(b) All written contracts shall require that goods and materials used in their execution shall as a minimum, be in accordance with European and/or British Standards current at the date of the tender, as applicable.

34.7 Insurance and Health & Safety

(a) Every written contract must state that the contractor will indemnify the Council against all losses and claims for injury or damage to any persons or property, which may arise as a consequence of the contracted works. The contractor shall throughout the execution of the contract, maintain suitable insurance for which they are liable and shall produce the relevant insurance policies on demand.

(b) In every written contract a clause shall be inserted requiring the contractor and any sub-contractor, sub-supplier or sub-consultant to acquaint themselves with the Council's policy on Health & Safety at Work and the relevant codes published for the Council's operations.

34.8 Health and Safety

(a) There shall be inserted into every written contract the following clause:

"The contractor and any sub-contractor, sub-supplier or sub-consultant shall be expected to comply with the requirements of the Health and Safety at Work Act 1974, the Management of Health and Safety Regulations 1992, the Control of Substances Hazardous to Health (COSHH) Regulations 1988 and 1994 and the Road Traffic Act 1988, HSE Guidance Notes and Approved Code of Practice, Construction (Design and Management) Regulations 1994 and any other Acts Regulations Orders or any European Directive pertaining to health and safety of persons and shall have regard to the Council's Health and Safety policy."

34.9 Equality

(a) Every contract shall contain a commitment by the contractor to operate in a manner consistent with the Council's Equal Opportunities Policy and Race Equality Policy.

34.10 Fair Wages

(a) Before accepting a tender or making a contract for the supply of supplies, services or works, the Council shall obtain from the contractor an assurance in writing that to the best of his knowledge and belief he has complied with the general conditions of the National Minimum Wages Act 1998, for at least a period of three months preceding the date of tender. This procedure rule shall not apply when an assurance has been given to the Council under Section 33.2 of these procedure rules (Nominated and Named Sub-contractors).

34.11 Metal Detectors and Objects Found

(a) There shall be inserted into every written contract a clause prohibiting the use by the contractor or employees or agents or any other persons, of any metal detector other than in the normal course of work, on any Council owned land that is occupied; and it shall also be declared that all antiquities and other objects of interest or value which may be found on Council owned land or excavating the same, shall become the property of the Council and such finds be reported to the Council accordingly.

34.12 Data Protection

(a) In every written contract where the contractor processes or may process personal data on the Council's behalf the following clauses shall be inserted:

"Data Protection.

1. The contractor shall comply with the obligations placed on them under the Data Protection Act 1998 (as amended or re-enacted from time to time) including, where appropriate, obtaining or changing their Notification insofar as the performance of the services or carrying out of the works gives rise to obligations under the 1998 Act.

2. The contractor shall provide the Council with such information as the Council may reasonably require:

(a) to satisfy itself that the contractor is complying with their obligations under Condition 1 above; and/or

(b) in pursuance of any statutory duties and/or responsibilities that the Council may have in relation to Data Protection.

3. The contractor shall not knowingly do anything which places the Council in breach of obligations under the 1998 Act.

4. The contractor shall indemnify and keep indemnified the Council against all actions and/or claims against the Council arising from the contractor's alleged or actual breach of Data Protection legislation referred to in Condition 1 above, occurring as a result of the Contractor's conduct within the terms of the Contract."

34.13 Freedom of Information

(a) There shall be inserted into every written contract the following clauses:

1. The Council will refuse to include in any contract, terms which purport to restrict the disclosure of information held by the Council and relating to the contract, beyond the restrictions permitted by the Freedom of Information Act 2000 ("the Act"). Unless an exemption provided for under the Act is applicable in relation to any particular information, the Council will disclose information in response to a Freedom of Information request, regardless of the terms of the contract.

2. The Council will, as recommended by the Lord Chancellor's Department, reject confidentiality clauses making information relating to the terms of the contract, its value and performance, exempt from disclosure. Where, exceptionally, it is necessary to include non-disclosure provisions in a contract, the Council will investigate the option of agreeing with the contractor a schedule of the contract which clearly identifies information which should not be disclosed. However, the acceptance of such confidentiality clauses must be for good reason e.g. disclosure of a trade secret or information likely to prejudice the commercial interests of any person, and must be capable of being justified to the Information Commissioner. It should be noted that commercial confidentiality may be time dependent. Exemptions successfully applied at the time of signing a contract may well cease to apply at a later stage of the contract and the Council will negotiate any further release of commercial information with the contractor.

3. Only the Council will be permitted to disclose any contract information subject to a Freedom of Information request. A non-public authority contractor is expressly forbidden to disclose any information.

34.14 Human Rights

(a) There shall be inserted into every written contract the following clause:

"Human Rights"

The contractor hereby agrees to undertake to protect and preserve the human rights, in accordance with the Human Rights Act 1998, of service users that may be affected whilst carrying out the provisions of this contract.

34.15 Confidentiality of Contract sum until Award of Contact

Each invitation to tender shall require the tenderer to give a written undertaking, which shall become a condition of the contract, that the sum tendered has not been calculated by agreement or arrangement with any person other than the Council, and has not been communicated to any person other than the Council, and will not be so communicated until after the award of the contract.

35.0 Contract Extension

35.1 Any contract may be extended in accordance with its terms, provided it is in the best interest of the Council. Each extension shall be considered on its own merits. Where a contract extension has one or more of the following effects, the Authorised Officer will ensure that a Portfolio Holder decision is obtained before the contract extension is authorised, and notify the Head of Service concerned and the Head of Finance:

(a) the contract period is extended by three months or more, and/or

(b) the extension adds more than 10% to the contract value.

35.2 Where the terms do not expressly provide for extension, contracts subject to the Regulations may be extended by negotiation in accordance with the rules set out in the Regulation. Such extension shall be notified to the Head of Service concerned, as well as the Head of Finance and the Head of Legal and Member Services.

35.3 Where the terms do not expressly provide for extension, other contracts not subject to the Regulations, may be extended by negotiation in the same circumstances. The Authorised Officer shall always be satisfied that the extension will achieve best value for money and is reasonable in all the relevant circumstances. Such extension shall be notified to the Head of Service concerned, as well as the Head of Finance and the Head of Legal and Member Services.

35.4 Contract renewable annually, shall not be extended on more than three occasions without re-tendering.

35.5 Fixed term contract shall not be extended for a further term longer than the initial term or three years, whichever is the shortest.

36.0 Termination of Contract

36.1 For all high value contracts, termination shall be approved by the Chief Executive, Director or Head of Service concerned. Contracts of a lesser value may be terminated early by agreement prior to the expiry date or in accordance with the termination provisions set out in the Contract, by the Authorised Officer. Legal advice should be sought as appropriate.

36.2 The Authorised Officer shall as soon as possible notify the Head of Legal and Member Services of a Contract termination, specifying the reasons that justified the early termination. The Head of Legal and Member Services shall ensure that the Contract Register is up dated accordingly.

36.3 The termination clause shall empower the Council to terminate the contract and to recover from the contractor the amount of any loss resulting from such termination, if the contractor or any person acting on his behalf (whether with or without the knowledge of the contractor) shall have:

(a) offered, given or agreed to give any persons any gift, inducement or reward in relation to the awarding or execution of any contract with the Council; or

(b) shown favour or disfavour to any person in relation to any contract with the Council; or

(c) if, in relation to any contract with the Council, the contractor shall have committed any offence under the Prevention of Corruption Acts 1889 to 1916, or any amendment to them, or shall have given any fee or reward the receipt of which is an offence under sub-section 2 of section 117 of the Local Government Act 1972.

37.0 Gifts and Hospitality

37.1 Where gifts or hospitality are offered by contractors or potential contractors, members are reminded of the provisions of Rule 17 of the Members Codes of Conduct and officers are reminded of the provisions of Rule 12 of the Officer's Codes of Conduct.

38.0 Statistical Returns

38.1 Each year the Council shall make a statistical return to the Office of the Deputy Prime Minister (ODPM) for onward transmission to the European Commission concerning the contracts awarded during the year under the Regulation.

38.2 The Procurement Manager is responsible for this statistical return and will make the necessary arrangements for information to be collected annually.

39.0 Review and Amendment of Contract Procedure Rules

39.1 These contract procedure rules shall be reviewed and updated on a regular basis, not less than annually. Amended contract procedure rules shall be agreed and adopted by the Council.

NOTE: The financial limits marked * are updated annually in line with RPI-x (the retail prices index excluding mortgage interest payments) under delegated authority to the Head of Finance.

40.0 Caveat on E-Procurement

40.1 Please note that further changes may be necessary to these amended Contact Procedure Rules as a result of the Council's E-Procurement business case and Strategy, yet to be developed.

Schedule 1 - Categories of Services PART A
Category Reference	Services	CPC Reference+
1	Maintenance and repair of vehicles and equipment	6112, 6122, 633, 886
2	Transport by land, including armoured car services and courier 712 (except 71235) services but not including transport of mail and transport by rail	7512, 87304
3	Transport by air but not transport of mail	73 (except 7321)
4	Transport of mail by land, other than by rail and air	71235, 7321
5	Telecommunications services other than voice telephony, telex, radiotelephony paging and satellite services	752
6	Financial services a) Insurance services b) Banking and Investment services other than financial services in connection with issue, sale, purchase or transfer of securities or other financial instruments, and central bank services	81 (Part), 812, 814
7	Computer and related services	84
8	R & D services where the benefits accrue exclusively to the purchaser for its use in the conduct of its own affairs and the services are to be wholly paid for by the purchaser	85
9	Accounting, auditing and book-keeping services	862
10	Market research and public opinion polling services	864
11	management consultancy services and related services, but not arbitration and conciliation services	865, 866
12	Architectural services: engineering services and integrated engineering services: urban planning and landscape architectural services: related scientific and technical consulting services: technical testing and analysis services	867
13	Advertising services	871

Category Reference	Services	CPC Reference+
14	Building-cleaning services and property management services	874, 82201 to 82206
15	Publishing and printing services on a fee or contract basis	88442
16	Sewerage and refuse disposal service: sanitation and similar services	94
PART B
17	Hotel and restaurant services	64
18	Transport by rail	711
19	Transport by water	72
20	Supporting and auxiliary transport services	74
21	Legal services	861
22	Personnel placement and supply services	872
23	Investigation and security services, other than armoured car services	873 (except 87304)
24	Education and vocational education services	92
25	Health and social services	93
26	Recreational, cultural and sporting services	96
27	Other services

Since January 1996 there has been a recommendation for all OJEU notices to have a CPV code.
Further details are given on the EU SIMAP website
+CPC stands for the Central Classification of the United Nations.