4. Regulatory Context

4.1

All purchasing shall be conducted in accordance with Regulatory Provisions which are:

4.1.1	All relevant statutory provisions
4.1.2	The relevant EU Rules and EC Treaty Principles, which are defined in the Council’s Purchasing Guide
4.1.3	The Council’s Constitution including these Contract Standing Orders, the Council’s Financial Procedure Rules and Scheme of Delegation
4.1.4	The Council’s Purchasing Guide and other policies and procedures of the Council as appropriate.

4.2

In the event of conflict between the above, the EU Rules will take precedence, followed by UK legislation, then the Council's Constitution, the Council’s Purchasing Guide and guidelines, policies and procedures.

CSO 4.1

1

This CSO requires purchasing to be conducted in accordance with "Regulatory Provisions". Regulatory provisions are defined in 4.1.1 to 4.1.4 and cover EU and UK law, as well as the Council’s own constitution and this Purchasing Guide. This means that when undertaking purchasing, you need to take into account a wide range of both legally binding provisions and also internal rules and guidance.

2

CSO 4.1.1: The statutory provisions applying to purchasing will vary according to the purchase being made. Key provisions include Section 17 of the Local Government Act 1988 which prohibits the application of non commercial considerations to the tender process and in particular the selection of contractors, except insofar as is necessary to secure the achievement of best value. In that context, non commercial considerations include, for example, the contractor’s terms and conditions of employment, business activities and interests of contractors in the Government’s defence or foreign policy and the conduct of contractors in industrial disputes. Please ask for advice on non commercial considerations for any tendered contract.

3

CSO 4.1.2: The term “EU Rules” in the context of these CSOs means the Public Contracts Regulations 2006 (Statutory Instrument 2006/5) (also referred to as the “Regulations") which implement European Directives 2004/18/EC and 89/665/EEC. The EU Rules will affect you if you are making purchases which exceed the EU Threshold Values set out in CSO 7.4. You MUST seek assistance in these cases.

In certain, limited, circumstances the Council may be classified as acting in the capacity of a “utility”. This could occur where the Council is delivering or running certain types of water, energy, transport or telecoms services. Practical examples may include the running of an airport or operation of a tramway or the production of drinking water or, in certain circumstances, undertaking land drainage works. In this case the Utilities Contracts Regulations 2006 (Statutory Instrument 2006/6) which implements European Directives 2004/17/EC and 92/13/EC apply. These CSOs do not cover the rules applying to activities caught by the Utilities Regulations. If you are uncertain about the application of these provisions you must take advice from Legal Services.

4

The reference to “EC Treaty Principles” mean those principles derived from the EC Treaty 1957 which apply to all purchasing by the Council. These EC Treaty Principles require the Council to ensure that it acts in a way that is open and transparent, ensures equal treatment of all contractors, and permits appropriate competition.

Example: When you invite quotes or tenders, do not act in a way that favours local contractors over contractors from elsewhere in the European Union. All contractors must have the same opportunities and receive the same treatment.

5

The EU Rules do not apply to all contracts, but they do apply to most contracts above the specified EU Threshold financial values which are set out in CSO 7.5. For purchases caught by the EU Rules or where you are uncertain whether or not the EU Rules apply you must take advice from Legal Services.

6

CSO 4.1.3: You need to understand how the Council’s Constitution, Financial Procedure Rules and Scheme of Delegation, as they apply to purchasing, interact with these CSOs.

CSO 4.2

7

If there is a conflict between the different sets of Regulatory Provisions, then there is a "hierarchy" application. EU Rules will always take precedence. Where UK legislation seems to conflict with EU Rules their interpretation will apply rather than the UK legislation. If you are uncertain about these issues then you must contact Legal Services.

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