Public Contracts Regulations 2015 - Regulation 16

Regulation 16 - Mixed procurement involving defence or security aspects

Back in week 1 we talked about the issue of mixed procurements and how Directive 2014/24/EU and the Public Contracts Regulations solve this issue. Regulation 4 includes the general rules for mixed contracts and Regulation 16 rules specific for contracts mixed with defence and security aspects, ie contracts whereby part of what is being procured is covered either by Article 346 TFEU or the Directive 2009/81/EC. This Regulation transposes Article 16 of Directive 2004/14/EU. As before, essentially all of the content was copied from the Directive, albeit with a different drafting style.

Objectively separable contracts

Regulation 16 is simpler and less prescriptive than Regulation 4. In a situation of a mixed procurement covered, if the contract is "objectively separable" the contracting authority may decide to separate the contract into different procurements (applying the appropriate rules to each part) or alternatively award a single contract instead. However, the decision to award a single contract needs to be "justifiable" and the procurement will follow the (negative) rules of Article 346 TFEU or the Directive 2009/81/EC as appropriate. It is interesting to note that while Regulation 15 referred to the scope of application of the Defence and Security Regulations, Regulation 16 on the other hand refers to the Directive 2009/81/EC. I think this is yet another example of inconsistencies due to lack of time to polish the Regulations.

What about contracts that are not objectively separable?

When I read paragraph 8 of Regulation 16 I was confused as it seemed redundant in face of paragraph 5. This is due to the drafting style adopted by the law maker, as paragraphs 3-7 in terms of content and context are really sub-paragraphs of paragraph 2 as all of them contain rules applicable to objectively separable contracts. Paragraph 8 however, deals with those contracts that are not objectively separable. For these contracts, they may be awarded in accordance with the rules of Article 346 TFEU or the Directive 2009/81/EC, just like paragraph 5. As the lawmaker uses may instead of shall, this should be taken as an optional approach, thus allowing contracting authorities to apply Part 2 of the Regulations if they so wish to do so.

Update: Albert's excellent, excellent entry is here.