Public Contracts Regulations 2015 - Regulation 103

Regulation 103 - Ineffectiveness etc. in relation to specific contracts based on a framework agreement

This Regulation defines rules that are applicable only to contracts tendered via a framework agreement. As in other regulations, this one starts with a definition, in this case of "specific contract" - any contract based on a framework and entered into before a declaration of ineffectiveness was made in relation to the framework agreement itself.

If a declaration of ineffectiveness is produced against the framework, contracts that have already been entered into are not affected automatically. The Regulation is very assertive in the way that the declarations of ineffectiveness may be produced.  There are only two ways to do so. As a first (paragraphs 3 to 5), the Court must declare  a claim must be brought against it within the time limits of Regulation 93 even if done so outside the action brought against the framework. This reference to the time limits of Regulation 93 is crucial as even in the most generous scenario, the action needs to be brought within 6 months of the contract being entered into. In a country with a tradition for longwinded contracts, this is an important limitation. Additionally, the exceptions of Regulation 100 also apply here, so there may be grounds to avoid declaring ineffective a contract tendered via a framework agreement.  Regulation 101 is also applicable (consequences of ineffectiveness) but there is no requirement to impose a financial penalty under Regulation 102(1), which makes sense assuming that the ineffectiveness of the framework agreement led to it.

Under this "ground for ineffectiveness" in case the Court decided no to declare the ineffectiveness of a specific contract due to the rules of paragraph 5, the contract may be shortened instead under paragraph s 9, 10 and 11. While paragraph 9 says "must be shortened" instead of "may be shortened", paragraph 10 leaves it to the discretion of the Court if contract is to shortened at all. According to this paragraph, the maximum extent that the contract may be shortened to depends on what the Court considers to be possible bearing into consideration the overriding reason that was used to forestall the declaration of ineffectiveness in the first place.

As an alternative possibility, this Regulation only allows for declarations of ineffectiveness against contracts specifically on the second (partially) and third grounds of ineffectiveness of Regulations 99, that is paragraphs (5)(6)(7).