Reg. 2 Public Contracts Regulations 2015 (PCR2015) sets out the Definitions used in Part 2 of the instrument. In a clear display of superior legislative technique than that used in the drafting of Directive 2014/24, its contents are alphabetically ordered. The first observation that this regulation triggers is that its content is different from that of Art 2 Dir 2014/24, which is also concerned with some applicable public procurement definitions. Some of the discrepancies between reg.2 PCR2015 and Art 2 Dir 2014/24 derive from the need to include some "autochthonous" definitions (below).
Reg.2 PCR2015 includes a significant number (23) of definitions already included in Directive 2014/24 and it mostly either repeats them verbatim or introduces some limited further specifications (mainly a change in the cross-references to other parts of the PCR2015). It only omits or alters two of the definitions: centralised purchasing activities (where a reference to reg.37(10) PCR2015, but the content of the definition under art.2(1)(14) Dir 2014/24 is kept) and procurement service provider (which is not included in reg.2(1) PCR2015; see art.2(1)(17) Dir 2014/24).
One wonders about the need to include this material, particularly in view of the fact that reg.2(2) PCR2015 establishes that "Unless the context otherwise requires, any expression used both in Part 2 and in the Public Contracts Directive has the meaning that it bears in that Directive", which should ensure the coordination needed between both instruments.
On second thought, though, the difficulty with reg.2(2) PCR2015 is that the first caveat ("Unless the context otherwise requires") is actually either inconsequential or a potential source of infringements of EU public procurement law. Given the supremacy and direct effect of Directive 2014/24 from the moment of its transposition (Van Duyn v Home Office, C-41/74, EU:C:1974:133) and the duty of consistent interpretation (Marleasing v Comercial Internacional de Alimentación, C-106/89, EU:C:1990:395), UK Courts (for England and Wales) are bound by the concepts contained in the Directive and by their interpretation by the Court of Justice. Hence, the first part of reg.2(2) is completely meaningless, as the context in which a defined term is used in Part 2 PCR2015 cannot alter the content of the "EU definition". Any diverging interpretation may result in an infringement of EU public procurement rules.
As far as the rest of the definitions are concerned, reg.2(1) PCR2015 includes the following "autochthonous" definitions: academy, call for competition(*), Commission(*), common technical specification(*), contest notice(*), contract notice(*), CPV(*), defence and security regulations, disabled, dynamic purchasing system(*), ESPD(*), EU publications office(*), European standard(*), European technical assessment(*), framework agreement(*), GPA(*), international standard(*), invitation to confirm interest(*), legal person, maintained school, national standard(*), NHS trust, Official Journal(*), prior information notice(*), procurement(*) [although this definition incorporates the content of art 1(2) Dir 2014/24], public contracts directive, selection criteria(*), standard, technical reference(*), technical specifications(*), TFEU(*), the Treaties(*), VAT(*) and working day.
Most of these definitions are either expressly included in parts of Directive 2014/24 other than its Art 2 on definitions, or seem quite superfluous (I marked them with *). The only ones that bear emphasis are those concerned with the procurement of education or healthcare services (ie academy, maintained school and NHS trust) because they are already indicating the special treatment that these social and special services will be afforded under the PCR2015 (as already hinted yesterday, and an issue to return to in due course).
Finally, regs.2(3) and 2(4) PCR2015 set specific rules regarding time limits and the calculation of periods of time. The rules on periods of time are quite straightforward and do not require much comment.
Pedro's reply and assessment of reg.2 is available here.
Pedro's reply and assessment of reg.2 is available here.