Office of Public Sector Information

PART 6 ACTIVITY RULES

Forfeit of deposit and exclusion from award process

64.  If, in relation to an applicant which is qualified to bid or a bidder, OFCOM are satisfied that any of the events set out in regulation 66 are occurring (or have occurred) and that the occurrence would materially affect the outcome of the award process—

(a) the initial deposit and any sum or sums paid as a deposit under regulation 23, 33, 40 or 48 shall be forfeited by, and not refunded to, the applicant or bidder concerned; and

(b) that applicant or bidder may also be excluded by OFCOM from the award process by OFCOM giving that applicant or bidder notice in writing.

Bids made by an excluded bidder

65.—(1) Where a bidder is excluded from the award process under regulation 64(b) during the principal stage, all of the principal stage bids submitted by the bidder 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 under regulation 41;

(b) the base price payable by a winning bidder under regulation 42.

(2) Where a bidder is excluded from the award process under regulation 64(b) during the assignment stage, all of the assignment stage bids submitted by the bidder (including any bids which the bidder is deemed to have submitted under regulation 56) shall be deemed to be invalid and shall not be taken into consideration for the purposes of determining—

(a) the winning combination of assignment stage bids under regulation 57;

(b) the additional price payable by a winning bidder under regulation 58.

Events

66.  The events referred to in regulation 64, in relation to an applicant or bidder, are—

(a) the submission to OFCOM of any information in connection with the award process which is false or misleading;

(b) any member of that applicant’s or bidder’s bidder group colluding or attempting to collude with another person to distort the outcome of the award process;

(c) any member of that applicant’s or bidder’s bidder group acting in a way which is likely to distort the outcome of the award process;

(d) any member of that applicant’s or bidder’s bidder group, or any person to whom confidential information has been disclosed, disclosing, or attempting to disclose, or inciting another person to disclose, any confidential information, whether directly or indirectly, to any person, except where the disclosure is—

(i) to OFCOM;

(ii) to a member of that applicant’s or bidder’s bidder group;

(iii) to a provider of finance for the purpose of raising finance for a bid; or

(iv) to a person for the purpose of enabling that person to decide whether to participate as a member of the applicant’s or bidder’s bidder group;

(e) any member of that applicant’s or bidder’s bidder group obtaining or attempting to obtain confidential information relating to another applicant or bidder;

(f) any member of that applicant’s or bidder’s bidder group receiving or attempting to receive services in relation to the award process from any person who has provided or is providing services to OFCOM in relation to the award process;

(g) any person who is a member or a director or employee of a member of that applicant’s or bidder’s bidder group and also a director or employee of a member of another bidder group—

(i) taking part in the preparation of both bidder groups for participation in the award process; or

(ii) receiving confidential information relating to both bidder groups;

(h) a member of that applicant’s or bidder’s bidder group is or becomes a member of another applicant’s or bidder’s bidder group;

(i) a change occurring in the membership of that applicant’s or bidder’s bidder group from that notified to OFCOM in its application except as a result of —

(i) a person ceasing to be a member of that bidder group;

(ii) a person joining that bidder group under the procedure in regulation 6(3);

(iii) a person becoming an associate through merger or acquisition activity provided that such activity is not for a purpose related to the award process.

PART 7 MISCELLANEOUS

General power of exclusion

67.  OFCOM may, at any time, notify any applicant or bidder of its exclusion from the award process if, in their opinion, the grant of a licence to that applicant or bidder would be prejudicial to the interests of national security or the applicant or bidder is not a fit and proper person to hold a licence.

Notification to OFCOM

68.  If, in accordance with any provision of these Regulations, an applicant or bidder is required, or wishes, to notify OFCOM of any fact or circumstance, it must do so by notice in writing which is marked for the attention of the OFCOM personnel who are specified by OFCOM for that purpose on OFCOM’s internet website and must deliver that notice to OFCOM—

(a) by electronic mail to an electronic mail address dedicated to the award process which is published by OFCOM on their internet website;

(b) by personal delivery to Riverside House, 2a Southwark Bridge Road, London, SE1A 9HA; or

(c) by fax to a number dedicated to the award process which is published by OFCOM on their internet website.

Changes to timing or location

69.—(1) Subject to regulations 70 and 71, paragraph (2) applies where OFCOM determine that it is impracticable for any reason—

(a) for any document which is to be delivered to OFCOM under these Regulations to be delivered at the place specified or by the deadline specified under these Regulations; or

(b) for any action which is required to be undertaken in accordance with these Regulations to be completed by the deadline specified.

(2) Where this paragraph applies, OFCOM shall take all reasonable steps to notify the applicants or bidders (as the case may be) that—

(a) delivery must be made on a different day or within different times on that day or at a different place;

(b) the action must be completed on a different day or by a different deadline.

Changes to round times and use of electronic auction system

70.—(1) Where a time for the start of a round has been notified to bidders and OFCOM determine that it is impracticable for any reason to start the round at that time, OFCOM shall take all reasonable steps to notify bidders of a revised time for the start of the round.

(2) Where a time for the end of a round has been notified to bidders and OFCOM determine that it is impracticable for any reason for the round to end at that time, OFCOM shall take all reasonable steps to notify bidders of a revised time for the end of the round.

(3) Where OFCOM determine that it is impracticable for any reason to use the electronic auction system for any of the purposes specified in Part 5 of these Regulations, OFCOM shall take all reasonable steps to notify bidders of an alternative method of participating in the award process and any requirements relating to the authentication of communications made by means of the alternative method.

(4) Bidders must use the alternative method of participating in the award process in accordance with a notification under paragraph (3).

Rerunning rounds

71.—(1) Paragraph (2) applies where a round is in progress and OFCOM determine that it is not possible to continue the round because of technical failure (or an event or circumstance with similar effect on the continuation of the round).

(2) Where this paragraph applies, OFCOM shall—

(a) take all reasonable steps to notify bidders of its determination under paragraph (1);

(b) disregard the bids made in that round;

(c) resume the award procedure from the end of the previous round (or, if there was no previous round, from the start of the first primary bid round).

(3) Paragraph (4) applies where OFCOM determine that it is not possible to continue the award process in accordance with the provisions of Part 5 of these Regulations because of technical failure (or an event or circumstance with similar effect on the continuation of the award process).

(4) Where this paragraph applies, OFCOM shall—

(a) determine the rounds for which bids made in those rounds should be disregarded in order to have a fair and efficient outcome of the award process;

(b) take all reasonable steps to notify bidders of its determinations under paragraph (3) and sub-paragraph (a);

(c) resume the award process from the end of the latest round for which bids are not disregarded under sub-paragraph (a) or, where all bids are to be disregarded under that sub-paragraph, to rerun the award process from the start of the first primary bid round.

Refunds

72.  OFCOM may, in such cases as they think fit, refund, in whole or in part, sums which have been paid to them in accordance with any provision of these Regulations.