Office of Public Sector Information
11.—(1) Where there is only one bidder, OFCOM shall notify that bidder of—
(a) a deadline by when the bidder must deliver to OFCOM at Riverside House, 2a Southwark Bridge Road, London SE1 9HA a paired frequency range selection menu in the form set out in Schedule 5 completed in accordance with paragraph (2) and signed on its behalf by two authorised persons; and
(b) a further deadline by when the bidder must pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the bidder, a sum determined in accordance with paragraph (4).
(2) The bidder must ensure that its selection of paired frequency ranges satisfies the following conditions—
(a) the selection includes at least one paired frequency range;
(b) the selection includes no more than one paired frequency range in each band;
(c) the total amount of the prices indicated on the paired frequency range selection menu for the paired frequency ranges included in the selection is not greater than four hundred and twenty thousand pounds.
(3) The licence fee shall be the total amount of the prices indicated on the paired frequency range selection menu for the paired frequency ranges selected by the bidder.
(4) The sum which the bidder must pay to OFCOM shall be—
(a) where the initial deposit has not been forfeited in accordance with regulation 64, a sum equal to the licence fee less the initial deposit;
(b) where the initial deposit has been so forfeited, a sum equal to the licence fee.
(5) Where, due to the manner of completion, the completed paired frequency range selection menu is incomplete or defective but OFCOM believe that they can ascertain the bidder’s intention in relation to the making of the selection, OFCOM shall ask the bidder to confirm in a notice to OFCOM by a specified deadline that OFCOM have correctly ascertained the bidder’s intention in relation to the selection.
(6) Where the bidder confirms in a notice given to OFCOM by the specified deadline which is signed by two authorised persons of that bidder that OFCOM have correctly ascertained the bidder’s intention, the menu in its entirety shall be accepted by OFCOM on that basis.
(7) Where the bidder does not give such confirmation in a notice given to OFCOM by the specified deadline which is signed by two authorised persons of that bidder—
(a) where the incompleteness or defect relates to one or more of the selections of paired frequency ranges made on the paired frequency range selection menu, that selection or those selections (as the case may be) shall be rejected by OFCOM and accordingly the bidder shall not be entitled to the grant of a licence for those selected paired frequency ranges;
(b) where sub-paragraph (a) does not apply, the paired frequency range selection menu in its entirety shall be rejected by OFCOM and accordingly the bidder shall not be entitled to the grant of a licence and shall not receive a refund of its initial deposit, which shall (where it has not already been forfeited under regulation 64) be forfeited.
(8) Where all of the selections of paired frequency ranges made on the paired frequency ranges selection menu are rejected by OFCOM in accordance with paragraph (7)(a), the bidder shall not receive a refund of its initial deposit, which shall (where it has not already been forfeited under regulation 64) be forfeited.
(9) Where the bidder does not—
(a) deliver a completed paired frequency range selection menu to OFCOM in accordance with paragraph (1)(a), or
(b) pay OFCOM the required sum in accordance with paragraph (1)(b),
the bidder shall not be entitled to the grant of a licence and shall not receive a refund of its initial deposit, which shall (where it has not already been forfeited under regulation 64) be forfeited.
12. Where OFCOM have received from the bidder a completed paired frequency range selection menu in accordance with regulation 11(1)(a) and the required sum in accordance with regulation 11(1)(b), OFCOM shall grant the bidder a licence for the paired frequency ranges selected on the paired frequency range selection menu that the bidder delivered to OFCOM.
13.—(1) After the grant of the licence, OFCOM shall complete the award process by—
(a) publishing on their internet website the name of the bidder to which a licence has been granted, the details of the paired frequency ranges in respect of which the licence was granted and the licence fee paid; and
(b) refunding to applicants which were not qualified, or withdrew in accordance with regulation 9, the initial deposits (where such deposits have not been forfeited under regulation 64) but not any interest which has accrued on the deposits.
14.—(1) Where there is more than one bidder, the process for the award of licences shall consist of the procedure set out in Chapters 2 to 5 of this Part (“principal stage”), the procedure set out in Chapters 6 and 7 of this Part (“assignment stage”) and the procedure set out in Chapter 8 of this Part (“grant stage”).
(2) During the principal stage there shall be one or more rounds for the making of primary bids (“primary bid rounds”) and a further round for the making of supplementary bids (“supplementary bids round”).
(3) A bid made during the principal stage shall be a bid for a selection of lots.
(4) The number of lots available in each band (“available total”) is the number set out in sub-paragraphs (a) to (g)—
(a) ten lots in the national 10 GHz band;
(b) two lots in the national 28 GHz band;
(c) one lot in the first sub-national 28 GHz band;
(d) one lot in the second sub-national 28 GHz band;
(e) one lot in the third sub-national 28 GHz band;
(f) six lots in the national 32 GHz band;
(g) six lots in the national 40 GHz band.
(5) Following completion of the principal stage, the paired frequency ranges that are to be assigned to the winning bidders shall be determined in accordance with the assignment stage.
(6) Licences for the paired frequency ranges so determined shall be granted in accordance with the grant stage.
15.—(1) A bid made during a primary bid round (“primary bid”) shall be at an amount in whole pounds, being the total amount of the round prices in that primary bid round for each lot included in the selection of lots in that primary bid.
(2) The round price means the price per lot determined in accordance with regulation 19 at which lots in a particular band are offered to bidders during a primary bid round.
(3) In order to make a primary bid a bidder must, on a form provided to the bidder by OFCOM (“primary bid form”)—
(a) specify in respect of one or more bands how many lots in each of those bands it wishes to be included in a licence; and
(b) specify an amount in whole pounds that it is willing to pay for the licence, being the total amount of the round prices in that primary bid round for the lots specified under sub-paragraph (a).
(4) In respect of each band, the number of lots in a band specified by a bidder under paragraph (3)(a) must not be greater than the available total for that band.
(5) Where the selection of lots in a primary bid includes lots in the national 10 GHz band, it must include at least two such lots.
(6) A bidder must not submit more than one primary bid in any primary bid round.
(7) The selection of lots in a primary bid made by a bidder must be such that the total number of eligibility points associated with the primary bid in accordance with paragraph (8) does not exceed the bidder’s eligibility limit for that primary bid round as determined in accordance with regulation 21 or 22 (as the case may be) and notified to the bidder in accordance with regulation 27(1)(c).
(8) The number of eligibility points associated with a primary bid shall be a number equal to the total of the eligibility points associated with each lot included in the selection of lots in that primary bid in accordance with Schedule 7.
16. Any bidder which does not submit a valid primary bid in the first primary bid round shall be excluded from the award process and shall not receive a refund of its initial deposit or any sum that the bidder has paid as a deposit under regulation 23, which shall (where not already forfeited under regulation 64) be forfeited.
17.—(1) A bid made during the supplementary bids round (“supplementary bid”) shall be at an amount in whole pounds.
(2) The amount of the supplementary bid shall be determined by the bidder, subject to the restrictions set out in regulation 26.
(3) In order to make a supplementary bid a bidder must, on a form provided to the bidder by OFCOM (“supplementary bids form”)—
(a) specify in respect of one or more bands how many lots in each of those bands it wishes to be included in a licence; and
(b) specify an amount in whole pounds that it is willing to pay for the licence.
(4) In respect of each band, the number of lots specified by a bidder under paragraph (3)(a) must not be greater than the available total for that band.
(5) Where the selection of lots in a supplementary bid includes lots in the national 10 GHz band, it must include at least two such lots.
(6) The selection of lots in a supplementary bid made by a bidder may be the same as or different from the selections of lots in primary bids made by the bidder.
(7) A bidder may submit any number of supplementary bids in the supplementary bids round, subject to the restriction set out in paragraph (8).
(8) A bidder may not submit more than one supplementary bid for each particular selection of lots.
(9) A bidder is not required to submit a supplementary bid.
18.—(1) After each primary bid round, OFCOM shall determine in respect of each band whether the total number of lots in the band included in selections of lots in valid primary bids submitted during that round (“bid total”) is greater than the available total for the band.
(2) Where for each band the bid total is not greater than the available total—
(a) there shall be no further primary bid rounds; and
(b) there shall be a supplementary bids round.
(3) Where for at least one band the bid total is greater than the available total, there shall be another primary bid round unless OFCOM determine, in accordance with paragraph (4), that there shall be no further primary bid rounds.
(4) OFCOM shall only make such a determination where they are satisfied that it is unlikely that the information that would be made available to bidders by OFCOM in accordance with regulation 32 following any further primary bid rounds would affect—
(a) the determination of the winning combination of principal stage bids in accordance with regulation 41;
(b) the determination of the base price payable by a winning bidder in accordance with regulation 42.
(5) Where OFCOM have determined under paragraph (3) that there shall be no further primary bid rounds, there shall be a supplementary bids round.
19.—(1) In the first primary bid round, the round price for a lot in each band shall be the amount set out in Schedule 6.
(2) In subsequent primary bid rounds, the round price for a lot in each band shall be determined by OFCOM in accordance with paragraph (3) or (5) (as the case may be).
(3) Where after a primary bid round OFCOM determine under regulation 18(1) that the bid total for a band is greater than the available total for the band, the round price for a lot in that band in the next primary bid round shall be an amount that is higher than the amount that was the round price for a lot in that band in the previous primary bid round, subject to the limit in paragraph (4).
(4) Where paragraph (3) applies, the amount of the round price for a lot in that band in the next primary bid round shall not be more than twice the amount of the round price for a lot in that band in the previous primary bid round.
(5) Where after a primary bid round OFCOM determine under regulation 18(1) that the bid total for the band is not greater than the available total for the band, the round price for a lot in that band in the next primary bid round shall be the same amount as it was in the previous primary bid round.
20. Before each primary bid round OFCOM shall determine an eligibility limit for each bidder for that primary bid round in accordance with regulation 21 or 22 (as the case may be).
21.—(1) After the deadline specified in regulation 23(2) and before the start of the first primary bid round, OFCOM shall determine each bidder’s eligibility limit for the first primary bid round in accordance with the requirements of this regulation.
(2) OFCOM shall divide by ten thousand the total amount of pounds that the bidder has on deposit (including the initial deposit and any additional sum paid under regulation 23, but not including any sum forfeited under regulation 64).
(3) Where the number that results from the calculation in paragraph (2) is greater than forty-two, the eligibility limit shall be forty-two.
(4) Where the number that results from the calculation in paragraph (2) is not greater than forty-two, the eligibility limit shall be—
(a) that number, or
(b) where the number is not a whole number, that number rounded down to the nearest whole number.
22.—(1) For subsequent primary bid rounds, each bidder’s eligibility limit shall be determined under paragraph (2) or (5) (as the case may be).
(2) Where a bidder makes a valid primary bid in a primary bid round, OFCOM shall determine the bidder’s eligibility limit for the next primary bid round by calculating the number of eligibility points associated with the valid primary bid.
(3) The number of eligibility points associated with a valid primary bid shall be a number equal to the total of the eligibility points associated with each lot included in the selection of lots in that primary bid in accordance with Schedule 7.
(4) The bidder’s eligibility limit shall be a number equal to the number of eligibility points associated with that valid primary bid.
(5) Where a bidder does not make a valid primary bid in a primary bid round, the bidder’s eligibility limit for the next primary bid round shall be zero.
23.—(1) In addition to the initial deposit, a bidder may pay an additional sum in pounds as a deposit which shall be taken into account by OFCOM in accordance with regulation 21 for the purpose of calculating the bidder’s eligibility limit for the first primary bid round.
(2) A bidder wishing to pay such an additional sum must, by a deadline specified by OFCOM, pay the additional sum into OFCOM’s bank account by a same day electronic transfer with accompanying information which identifies the bidder.
24.—(1) A primary bid shall only be taken into consideration for the purposes of determining—
(a) the bid total for a band in accordance with regulation 18(1);
(b) the winning combination of principal stage bids in accordance with regulation 41;
(c) the base price payable by a winning bidder in accordance with regulation 42;
if it satisfies the conditions set out in paragraph (2) (“valid primary bid”).
(2) The conditions are that—
(a) the primary bid is made on a primary bid form that has been completed in accordance with regulation 15(3);
(b) the primary bid is submitted in accordance with the restriction set out in regulation 15(6);
(c) the primary bid complies with the restrictions set out in regulation 15(4) and (7) and with the requirement set out in regulation 15(5); and
(d) the completed primary bid form is submitted to OFCOM in accordance with regulation 28(1) and is received by OFCOM in accordance with regulation 28(2).
25.—(1) A supplementary bid shall only be taken into consideration for the purposes of determining—
(a) the winning combination of principal stage bids under regulation 41;
(b) the base price payable by a winning bidder under regulation 42;
if it satisfies the conditions set out in paragraph (2) (“valid supplementary bid”).
(2) The conditions in respect of a supplementary bid are that—
(a) the supplementary bid is made on a supplementary bids form that has been completed in accordance with regulation 17(3);
(b) the amount of the supplementary bid specified by the bidder under regulation 17(3)(b) complies with the restrictions set out in regulation 26;
(c) the supplementary bid complies with the requirement set out in regulation 17(5);
(d) the supplementary bid is submitted in accordance with the restrictions set out in regulation 17(4) and (8); and
(e) the completed supplementary bids form is submitted to OFCOM in accordance with regulation 35(1) and is received by OFCOM in accordance with regulation 35(2).
26.—(1) The restrictions that apply to the amount of a supplementary bid specified by a bidder under regulation 17(3)(b) are that—
(a) the amount of the supplementary bid must not be less than the total amount of the round prices in the first primary bid round for the lots included in the selection of lots in that bid;
(b) where the supplementary bid is for a selection of lots in respect of which the bidder has also made a primary round bid, the amount of the supplementary bid must be greater than the amount of the highest primary round bid made by the bidder for that selection of lots;
(c) where—
(i) the bidder did not make a valid primary bid in the final primary bid round, or
(ii) the total number of eligibility points associated with the supplementary bid in accordance with paragraph (4) is greater than the total number of eligibility points associated with the valid primary bid made by the bidder in the final primary bid round in accordance with paragraph (4),
the amount of the supplementary bid must not be greater than the amount determined in accordance with paragraph (2).
(2) That amount shall be the total amount of the round prices in the primary bid round referred to in paragraph (3) for the lots included in the selection of lots in the supplementary bid.
(3) That primary bid round is the latest primary bid round in which a primary bid made by the bidder for that selection of lots could have satisfied the restriction set out in regulation 15(7).
(4) The number of eligibility points associated with a primary bid or a supplementary bid shall be a number equal to the total of the eligibility points associated with each lot included in the selection of lots in that bid in accordance with Schedule 7.
27.—(1) Before the start of each primary bid round, OFCOM shall notify each bidder of—
(a) the date on which, and the times on that date within which, the primary bid round will take place;
(b) in respect of each band, the round price for the band in that primary bid round (determined in accordance with regulation 19);
(c) the bidder’s eligibility limit for that primary bid round (determined in accordance with regulation 21 or 22, as the case may be).
(2) The time notified by OFCOM under paragraph (1)(a) as the end of the primary bid round (“end of round time”) may be treated by a bidder in respect of—
(a) no more than two primary bid rounds, and
(b) for each primary bid round in respect of which paragraph (3) applies to the bidder, a further primary bid round,
as that time extended by thirty minutes, and OFCOM shall treat that extended time as the end of round time for the purposes of paragraph (1)(a).
(3) This paragraph applies to a bidder where—
(a) in respect of a previous primary bid round, the bidder treated the end of round time for that round as extended by thirty minutes in accordance with paragraph (2);
(b) the bidder submitted its completed primary bid form for that primary bid round so that it was received by OFCOM by the end of round time so extended; and
(c) OFCOM have notified the bidder that they are satisfied that, in respect of that primary bid round, circumstances existed which were beyond the bidder’s control which had the effect that the bidder could not have submitted its primary bid form so that it was received by OFCOM by the end of round time without such an extension.
28.—(1) Except as provided for in regulation 29, a bidder must submit the completed primary bid form to OFCOM by using the electronic auction system.
(2) The completed primary bid form must be received by OFCOM by the end of round time.
29.—(1) Where OFCOM are satisfied that a bidder is unable to submit a primary bid form by using the electronic auction system because of technical failure (or an event or circumstance with similar effect on the bidder’s ability to use the electronic auction system), OFCOM shall notify the bidder of an alternative method of submitting the primary bid form and any requirements relating to the authentication of communications made by means of the alternative method.
(2) The bidder must submit the primary bid form by means of the alternative method and must comply with any requirements which have been notified to it under paragraph (1) relating to the authentication of communications.
30.—(1) Where, due to the manner of completion, a primary bid form is incomplete or defective but OFCOM believe that they can ascertain the bidder’s intention in relation to the making of the primary bid, OFCOM shall ask the bidder to confirm in a notice to OFCOM by a specified deadline that OFCOM have correctly ascertained the bidder’s intention in relation to the making of the primary bid.
(2) Where the bidder confirms in a notice given to OFCOM by the specified deadline which is signed by two authorised persons of that bidder that OFCOM have correctly ascertained the bidder’s intention, the primary bid form in its entirety shall be accepted by OFCOM on that basis.
(3) Where the bidder does not give such confirmation in a notice given to OFCOM by the specified deadline which is signed by two authorised persons of that bidder, the primary bid form in its entirety shall be rejected by OFCOM and the primary bid submitted on the primary bid form shall not be a valid primary bid and accordingly shall not be taken into consideration for the purposes of determining—
(a) the bid total for a band in accordance with regulation 18(1);
(b) the winning combination of principal stage bids in accordance with regulation 41;
(c) the base price payable by a winning bidder in accordance with regulation 42.
31. Where a bidder submits a primary bid that is not a valid primary bid during a primary bid round OFCOM shall, after the end of that primary bid round, notify the bidder of that fact and shall give the reasons why the bid is not a valid primary bid.
32. After the end of a primary bid round and before the start of the subsequent primary bid round (or before the start of the supplementary bids round if there is no subsequent primary bid round), OFCOM shall notify bidders of the bid total for each band for the primary bid round that has ended.
33.—(1) Where in respect of a primary bid the amount specified by a bidder under regulation 15(3)(b) is greater than the total amount that the bidder has on deposit (including the initial deposit, any sum paid as a deposit under regulation 23 and any sum or sums paid as a deposit under this regulation, but not including any sum forfeited under regulation 64) OFCOM may, having regard to the desirability of securing an efficient outcome of the principal stage, subsequently notify the bidder that the bidder is required to pay a further sum in pounds as a deposit.
(2) The further sum shall be an amount such that the total amount that the bidder has on deposit (including the initial deposit, any sum paid as a deposit under regulation 23 and any sum or sums paid as a deposit under this regulation, but not including any sum forfeited under regulation 64) is not less than the amount of the highest valid primary bid that the bidder made before OFCOM gave notice to the bidder under paragraph (1).
(3) Any such sum shall be paid into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the bidder, by a deadline specified by OFCOM.
(4) Where a bidder does not satisfy the requirements set out in paragraph (3), OFCOM shall notify the bidder of that fact, and for any primary bid rounds following notice being given under this paragraph the bidder’s eligibility limit shall be zero.
34. Before the start of the supplementary bids round, OFCOM shall notify each bidder of —
(a) the date on which, and the times on that date within which, the supplementary bids round will take place;
(b) the deadline by when bidders must pay a further sum in pounds as a deposit in accordance with regulation 40.
35.—(1) Except as provided for in regulation 36, a bidder must submit the completed supplementary bids form to OFCOM by using the electronic auction system.
(2) Except as provided for in regulation 37, the completed supplementary bids form must be received by OFCOM by the time notified to bidders under regulation 34(a) as the end of the supplementary bids round.
36.—(1) Where OFCOM are satisfied that a bidder is unable to submit a supplementary bids form by using the electronic auction system because of technical failure (or an event or circumstance with similar effect on the bidder’s ability to use the electronic auction system), OFCOM shall notify the bidder of an alternative method of submitting the supplementary bids form and any requirements relating to the authentication of communications made by means of the alternative method.
(2) The bidder must submit the supplementary bids form by means of the alternative method and must comply with any requirements which have been notified to it under paragraph (1) relating to the authentication of communications.
37.—(1) Where—
(a) OFCOM have not received a completed supplementary bids form from a bidder by the time notified to bidders under regulation 34(a) as the end of the supplementary bids round, and
(b) paragraph (2) applies,
the time by which the bidder’s completed supplementary bids form must be received by OFCOM shall be the time sixty minutes after the time notified to bidders under regulation 34(a) as the end of the supplementary bids round.
(2) This paragraph applies where OFCOM are satisfied that circumstances existed which were beyond the bidder’s control which had the effect that the bidder could not submit its supplementary bids form so that it was received by OFCOM by the time notified to bidders under regulation 34(a) as the end of the supplementary bids round.
38.—(1) Where, due to the manner of completion, a supplementary bids form is incomplete or defective but OFCOM believe that they can ascertain the bidder’s intention in relation to the making of the supplementary bid or bids, OFCOM shall ask the bidder to confirm in a notice to OFCOM by a specified deadline that OFCOM have correctly ascertained the bidder’s intention in relation to the making of the supplementary bid or bids.
(2) Where the bidder confirms in a notice given to OFCOM by the specified deadline which is signed by two authorised persons of that bidder that OFCOM have correctly ascertained the bidder’s intention, the supplementary bids form in its entirety shall be accepted by OFCOM on that basis.
(3) Where the bidder does not give such confirmation in a notice given to OFCOM by the specified deadline which is signed by two authorised persons of that bidder—
(a) where the incompleteness or defect relates to one or more of the supplementary bids made on the supplementary bids form, that supplementary bid or those supplementary bids (as the case may be) shall be rejected by OFCOM and shall not be taken into consideration for the purposes of determining—
(i) the winning combination of principal stage bids in accordance with regulation 41;
(ii) the base price payable by a winning bidder in accordance with regulation 42;
(b) where sub-paragraph (a) does not apply, the supplementary bids form in its entirety shall be rejected by OFCOM and none of the supplementary bids made on that supplementary bids form shall be taken into consideration for the purposes of determining—
(i) the winning combination of principal stage bids in accordance with regulation 41;
(ii) the base price payable by a winning bidder in accordance with regulation 42.
39. Where a bidder submits a supplementary bid that is not a valid supplementary bid OFCOM shall, after the end of the supplementary bids round, notify the bidder of that fact and shall give the reasons why the bid is not a valid supplementary bid.
40.—(1) By the deadline notified to bidders under regulation 34(b), each bidder must pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the bidder, a further sum in pounds as a deposit so that the total amount the bidder has on deposit (including the initial deposit, any sum paid as a deposit under regulation 23 or 33 and any sum paid as a deposit under this paragraph, but not including any sum forfeited under regulation 64) is not less than whichever is the greater of—
(a) the amount of the bidder’s highest valid primary bid as specified by the bidder under regulation 15(3)(b);
(b) the amount of the bidder’s highest valid supplementary bid as specified by the bidder under regulation 17(3)(b).
(2) Where a bidder does not satisfy the requirements set out in paragraph (1), OFCOM shall notify the bidder and the bidder shall be excluded from the award process and shall not receive a refund of its initial deposit or any sum paid as a deposit under regulation 23 or 33 or under paragraph (1), which shall (where not already forfeited under regulation 64) be forfeited, and all of that bidder’s primary bids and supplementary bids (if any) shall be deemed to be invalid and shall not be taken into consideration for the purposes of determining—
(a) the winning combination of principal stage bids in accordance with regulation 41;
(b) the base price payable by a winning bidder in accordance with regulation 42.
The Wireless Telegraphy (Licence Award) (No. 2) Regulations 2007