type: legislation

jurisdiction: UK

text:
PART 1 GENERAL PROVISIONS
Citation, commencement and extent
1
1
These Regulations may be cited as the Bathing Water Regulations 2008.
2
The following provisions come into force on 14th May 2008 —
a
this regulation and regulations 2 to 7 ;
b
in regulation 14(2) , sub-paragraph (a) and regulation 14(1) , in so far as it relates to that sub-paragraph;
c
regulation 17 ; and
d
in Schedule 3, in paragraph 2(1) , paragraph (a) and regulation 8 , in so far as it relates to that paragraph.
3
The following provisions come into force on 24th March 2012 —
a
the remaining provisions in regulation 8 ;
b
regulations 9 and 12 ;
c
in regulation 14(2) —
i
sub-paragraph (b) and regulation 14(1) in so far as it relates to that sub-paragraph; and
ii
paragraph (2) (c) (v) ;
d
regulation 14(3) and (4) ; and
e
regulations 16 and 18 .
4
All remaining provisions come into force on 24th March 2015.
5
Subject to paragraph (6) , these Regulations extend to England and Wales only.
6
Any amendment or revocation made by these Regulations has the same extent as the enactment being amended or revoked.
Interpretation
2
1
In these Regulations —
“abnormal situation” means an event or combination of events impacting on bathing water quality which the Agency would not expect to occur, on average, more than once every four years;
“the Agency” means the Environment Agency;
“Agency management measures” means measures in relation to a bathing water taken by the Agency —
to reduce the risk of pollution (being measures within the Agency’s responsibilities referred to in regulation 5); or
under regulations 7 to 11 ;
“the appropriate Minister” means —
in relation to a bathing water in England, the Secretary of State; or
in relation to a bathing water in Wales, one of the Welsh Ministers;
“bathing season” means the period specified in regulation 4 ;
“a bathing water” means an area of surface water identified under regulation 3 ;
“control”, in relation to a bathing water, means control of the land immediately adjacent to the bathing water which is normally used to access the bathing water from the landward side and, where the bathing water is tidal, control of such land above the high water mark;
“the Bathing Water Directive” means Directive 2006/7/ EC of the European Parliament and of the Council concerning the management of bathing water quality and repealing Directive 76/160/ EEC ;
“bathing water profile” means the profile established under regulation 7 ;
“cyanobacterial proliferation” means an accumulation of cyanobacteria including in the form of a bloom, mat or scum;
“England” includes the territorial sea adjacent to England and not forming any part of Wales;
“local authority” means —
in England, the council of any district, the unitary authority of a place in which there are no districts, the council of a London borough, the Common Council of the City of London or the Council of the Isles of Scilly; or
in Wales, the council of a county or county borough;
“local authority management measures” means measures taken, under regulation 9 , by a local authority in relation to a bathing water which it controls —
to give information to the public; or
to prevent, by means of public information, bathers’ exposure to pollution;
“management measures” means Agency management measures, local authority management measures or private controller management measures;
“permanent advice against bathing” means advice issued, in relation to at least one whole bathing season, under regulation 13 ;
“pollution” means contamination which affects bathing water quality and presents a risk to bathers’ health from the following —
intestinal enterococci or Escherichia coli ;
cyanobacterial proliferation;
a proliferation of macro-algae or marine phytoplankton;
waste, including tarry residues, glass, plastic or rubber;
“private controller” of a bathing water means a person, other than a local authority, who controls the bathing water;
“private controller management measures” means measures taken, under regulation 9 , by a private controller of a bathing water in relation to the bathing water —
to give information to the public; or
to prevent, by means of public information, bathers’ exposure to pollution;
“relevant measures for short-term pollution” in relation to a bathing water means measures, of the following kinds, for identifying the causes of, predicting, and dealing with, short-term pollution at the bathing water —
Agency management measures;
the establishment of surveillance and early warning systems with a view to preventing bathers’ exposure to the short-term pollution by means of public information under regulation 14 ;
measures taken by the Agency (as part of its responsibilities referred to in regulation 5 ) to prevent, reduce or eliminate the causes of the short-term pollution;
“set of bathing water quality data” means data obtained from results of samples taken under Part 1 of Schedule 3;
“short-term pollution” means contamination by intestinal enterococci or Escherichia coli where the Agency —
has identified the causes; and
does not normally expect the contamination to affect bathing water quality for more than approximately 72 hours after the bathing water is first affected;
“Wales” has the meaning given by section 158 of the Government of Wales Act 2006 ; and
“the Water Framework Directive” means Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy .
2
In these Regulations, “coastal water”, “groundwater”, “inland water”, “surface water” and “transitional waters” have the same meaning as in the Water Framework Directive and those definitions, together with other relevant definitions from that Directive, are set out in Schedule 1 to these Regulations.
Identification of bathing waters
3
1
For the purposes of these Regulations —
a
the surface waters on the English list are identified as bathing waters in relation to England; and
b
the surface waters on the Welsh list are identified as bathing waters in relation to Wales.
2
The Secretary of State and the Agency must publish the English list on their respective websites.
3
The Welsh Ministers and the Agency must publish the Welsh list on their respective websites.
4
In this regulation —
a
“the English list” means the list entitled “Bathing Waters (England) 2008”, held at the principal office of the Department for Environment, Food and Rural Affairs (which is at Nobel House, 17 Smith Square, London SW1P 3JR) ; and
b
“the Welsh list” means the list entitled “Bathing Waters (Wales) 2008” deposited in the library of the Welsh Assembly Government at Cathays Park, Cardiff, CF10 3NQ .
5
For the purposes of giving effect to the Bathing Water Directive, section 104(1) of the Water Resources Act 1991 (meaning of “controlled waters”) has effect as if “inland freshwaters” included any lake or pond (other than a relevant lake or pond within the meaning of that section) identified under this regulation.
Length of the bathing season
4
For the purposes of these Regulations, the bathing season in England and Wales begins on 15th May and ends at the end of the day on 30th September in each year.
General duties
5
1
The Secretary of State, the Welsh Ministers and the Agency must exercise their relevant functions in England and Wales —
a
so as to ensure that, by the end of the bathing season in 2015, all bathing waters are classified under regulation 11 as “sufficient”;
b
so as to take such realistic and proportionate measures as they each consider appropriate with a view to increasing the number of bathing waters classified under regulation 11 as “good” or “excellent”; and
c
in all other respects, so as to secure compliance with the requirements of the Bathing Water Directive.
2
In this regulation, “relevant functions” means functions, so far as relevant, under the enactments listed in Schedule 2 (relevant functions) to the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003 .
3
In the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, in Schedule 2 (relevant functions), in Part 2 (subordinate instruments), after paragraph 28, insert —
29
The Bathing Water Regulations 2008.
.
4
In the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 , in Schedule 2 (relevant functions), in Part 2 (subordinate instruments), after paragraph 27, insert —
28
The Bathing Water Regulations 2008.
.
5
The Agency must promptly provide —
a
to the appropriate Minister such information about the quality of bathing waters as the appropriate Minister may by notice reasonably require;
b
to a local authority such information about the quality of the bathing waters in its area as it may by notice reasonably require; and
c
to a private controller such information as the Agency considers the private controller requires for the purposes of the private controller’s functions under these Regulations.
Public participation
6
1
The Secretary of State, the Welsh Ministers and the Agency must —
a
encourage public participation in the exercise of their respective functions under these Regulations; and
b
ensure that the public has an opportunity —
i
to find out how to participate; and
ii
to submit suggestions, comments or complaints.
2
The Secretary of State, the Welsh Ministers and the Agency must take due account of any suggestions, comments or complaints they have obtained from the public when exercising their respective functions under these Regulations.
PART 2 BATHING WATER PROFILES
Bathing water profiles
7
1
The Agency must —
a
establish a bathing water profile before 24th March 2011, for every bathing water; and
b
keep every bathing water profile under review.
2
The Agency may combine the bathing water profiles of contiguous bathing waters.
3
When complying with paragraph (1) , the Agency must take into account the data which it has obtained or analysed under —
a
the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003;
b
the Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003; or
c
the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004.
4
Schedule 2 (bathing water profiles) has effect.
PART 3 MONITORING ETC. OF BATHING WATERS AND PUBLIC INFORMATION
Monitoring etc.
8
1
The Agency must establish a monitoring programme for every bathing water.
2
The monitoring programme for intestinal enterococci and Escherichia coli must be in accordance with Part 1 of Schedule 3.
3
The Agency must undertake appropriate monitoring for cyanobacteria in accordance with Part 2 of Schedule 3.
4
The Agency must undertake investigations for macro-algae and marine phytoplankton in accordance with Part 3 of Schedule 3.
5
The Agency must undertake visual inspections for waste, including tarry residues, glass, plastic or rubber in accordance with Part 4 of Schedule 3.
6
After the end of every bathing season, the Agency must notify the appropriate Minister, giving reasons, if it has suspended the monitoring calendar in accordance with paragraph 2 of Schedule 3.
Public information
9
1
Every local authority or private controller that controls a bathing water must ensure that the following information about the bathing water is available during the bathing season in an easily accessible place in the vicinity of the bathing water —
a
the bathing water’s current classification pursuant to regulation 11 ;
b
any advice against bathing which has been introduced there, giving reasons;
c
a general description of the bathing water, in non-technical language, based on its bathing water profile;
d
information on the nature and expected duration of abnormal situations there; and
e
an indication of the sources of more complete information published in accordance with paragraph (4) .
2
In relation to every bathing water, the Agency must publish on its website the following information —
a
the information referred to in paragraph (1) ;
b
before the start of every bathing season, the bathing water’s classification in accordance with regulation 11 over the last three years;
c
the current bathing water profile;
d
as soon as possible after the completion of the analysis under Schedule 3, the results of the monitoring carried out in accordance with regulation 8(2) since the beginning of the current bathing season; and
e
where the bathing water is classified as “poor” under regulation 11 , information as to —
i
the causes of pollution there; and
ii
the management measures being taken there under regulation 13 .
3
The Agency must —
a
prepare a general description of every bathing water for use under paragraph (1)(c) ; and
b
make the descriptions available to local authorities and private controllers.
4
Public information under these Regulations must —
a
wherever possible, be provided using a geographic information system; and
b
be presented in a clear and coherent manner.
PART 4 BATHING WATER ASSESSMENT AND CLASSIFICATION
Assessment
10
1
After the end of every bathing season, for every bathing water, the Agency must —
a
prepare a set of bathing water quality data for that season; and
b
carry out a bathing water quality assessment using the set of bathing water quality data compiled in relation to that season and the relevant assessment period.
2
In this regulation, the “relevant assessment period” is —
a
the immediately preceding three bathing seasons;
b
the immediately preceding two bathing seasons, if the Agency so determines in accordance with paragraph (3) ; or
c
the number of immediately preceding bathing seasons, being less than three, that the Agency determines in accordance with paragraph (4) .
3
The Agency may make a determination under paragraph (2)(b) where —
a
it has consulted the appropriate Minister; and
b
it is at least five years since the last change in the relevant assessment period.
4
The Agency may make a determination under paragraph (2)(c) , if —
a
it has consulted the appropriate Minister;
b
the set of bathing water quality data used is based on at least 16 samples; and
c
it considers that any factors identified in the bathing water profile as likely to affect the classification of the bathing water under regulation 11 have changed, and the set of bathing water quality data used is based only on samples taken since those factors have changed.
Classification
11
At the end of every bathing season, on the basis of the assessment made under regulation 10 , the Agency must classify every bathing water as “poor”, “sufficient”, “good” or “excellent” in accordance with Schedule 4.
PART 5 MANAGEMENT OF BATHING WATERS
Management measures at bathing waters subject to pollution incidents
12
1
This regulation applies where a body or person mentioned in paragraph (2) is aware of —
a
an incident of contamination by intestinal enterococci or Escherichia coli , other than an incident of short-term pollution to which regulation 15 applies, that the body or person considers may pose a risk to bathing water quality and bathers’ health;
b
a cyanobacterial proliferation which the body or person considers may pose a risk to bathers’ health;
c
a proliferation of macro-algae or marine phytoplankton which the body or person considers is unacceptable or may pose a risk to bathers’ health;
d
the presence of waste, including tarry residues, glass, plastic or rubber; or
e
any other incident, other than an incident of short-term pollution to which regulation 15 applies, that the body or person considers may pose a risk to bathing water quality and bathers’ health.
2
The bodies and persons are:
a
the Agency;
b
a sewerage undertaker;
c
a local authority, or
d
in the case of a bathing water that has a private controller, the private controller.
3
The Agency must promptly —
a
consult —
i
the local authority in whose area the bathing water is situated;
ii
if the bathing water is controlled by a private controller, the private controller; and
iii
if necessary, the local sewerage undertaker; and
b
take, or cause to be taken, such Agency management measures as the Agency considers adequate to protect bathers’ health.
4
The sewerage undertaker must, if necessary, promptly consult —
a
the Agency;
b
the local authority in whose area the bathing water is situated; and
c
where the bathing water is controlled by a private controller, the private controller.
5
If the bathing water is controlled by a local authority, the local authority must promptly —
a
consult the Agency so far as necessary;
b
notify the local sewerage undertaker, if necessary;
c
take such local authority management measures as it considers adequate to protect bathers’ health; and
d
in the case of pollution by waste, remove the waste.
6
If the bathing water is controlled by a private controller —
a
the local authority must, where necessary, promptly —
i
consult the Agency and the private controller; and
ii
notify the local sewerage undertaker; and
b
the private controller must promptly —
i
consult the Agency and the local authority so far as necessary;
ii
take such private controller management measures as the controller considers adequate to protect bathers’ health; and
iii
in the case of pollution by waste, remove the waste.
Additional management measures at “poor” bathing waters
13
1
Where the Agency classifies a bathing water as “poor” under regulation 11 —
a
the Agency must, during the bathing season following this classification —
i
take, or cause to be taken, such Agency management measures at the bathing water as it considers adequate with a view to preventing bathers’ exposure to pollution;
ii
notify the local authority or private controller that controls the bathing water; and
iii
identify the reasons why the bathing water failed to achieve a classification of “sufficient”;
b
if the bathing water is controlled by a local authority, the local authority must —
i
take such local authority management measures there as it considers adequate with a view to preventing bathers’ exposure to pollution; and
ii
introduce advice against bathing there by means of public information under regulation 9 ; and
c
if the bathing water is controlled by a private controller, the private controller must —
i
take such private controller management measures there as the private controller considers adequate with a view to preventing bathers’ exposure to pollution; and
ii
introduce advice against bathing there by means of public information under regulation 9 .
2
Paragraphs (3) to (5) apply to a bathing water if —
a
the Agency has classified the bathing water as “poor” under regulation 11 for five consecutive years; or
b
having consulted the local authority or private controller that controls the bathing water, the Agency advises the appropriate Minister that it considers that it would be infeasible or disproportionately expensive for the bathing water to achieve a classification of “sufficient” and the appropriate Minister accepts that advice.
3
The Agency must notify the local authority or private controller that controls the bathing water that permanent advice against bathing must be introduced there, giving reasons.
4
If the bathing water is controlled by a local authority, the local authority must introduce permanent advice against bathing there by means of public information under regulation 9 .
5
If the bathing water is controlled by a private controller, the private controller must introduce permanent advice against bathing there by means of public information under regulation 9 .
Public information and general provisions about short-term pollution
14
1
This regulation applies where, having consulted the local authority or private controller that controls a bathing water, the Agency has established relevant procedures for short-term pollution at the bathing water.
2
The Agency must —
a
ensure that the bathing water profile established under regulation 7 contains —
i
information as to the anticipated nature, frequency and duration of expected short-term pollution;
ii
details of any remaining causes of short-term pollution;
iii
details of the Agency management measures taken and the time schedule for the elimination of the causes of the short-term pollution; and
iv
information on relevant procedures for short-term pollution taken during a short-term pollution incident and the identity and contact details of any person responsible for taking such action;
b
notify the local authority or private controller that controls the bathing water when short‑term pollution is predicted there; and
c
publish on its website the following information —
i
the conditions likely to lead to short-term pollution at the bathing water;
ii
the likelihood of short-term pollution there and its likely duration;
iii
the causes of short-term pollution there;
iv
the relevant procedures for short-term pollution in place there; and
v
the information referred to in paragraphs (3) and (4) .
3
If the bathing water is controlled by a local authority, the local authority must ensure that the following information is available during the bathing season in the place referred to in regulation 9(1) —
a
an indication of the number of days for which advice against bathing was introduced there during the immediately preceding bathing season because of short-term pollution; and
b
a warning whenever short-term pollution is predicted or present there.
4
If the bathing water is controlled by a private controller, the private controller must ensure that the following information is available during the bathing season in the place referred to in regulation 9(1) —
a
an indication of the number of days for which advice against bathing was introduced there during the immediately preceding bathing season because of short-term pollution; and
b
a warning whenever short-term pollution is predicted or present there.
5
In the event of short-term pollution, the Agency must take one additional sample, as soon as possible after the pollution incident is presumed to have ended, to verify that it has in fact ended.
6
The Agency may exclude samples taken during short-term pollution from the set of bathing water quality data for the bathing water if —
a
as soon as possible after the end of a short-term pollution incident, the Agency has taken the additional sample required by paragraph (5) in order to verify that the incident has ended;
b
the Agency has not included that sample in the set of bathing water quality data for the bathing water; and
c
seven days after the end of a short-term pollution incident, the Agency has, if necessary, taken an additional sample to ensure that it has the minimum number required for the bathing water for the bathing season.
7
The Agency must not classify the bathing water under regulation 11 as “sufficient”, “good” or “excellent” unless the number of samples disregarded under paragraph (6) represents no more than the greater of —
a
15% of the total number of samples provided for in the monitoring calendars established under paragraph 2 of Schedule 3 for the same period; and
b
one sample per bathing season.
Relevant procedures for short-term pollution
15
Where there is short-term pollution at a bathing water to which regulation 14 applies —
a
the Agency must —
i
notify the local authority or private controller that controls the bathing water; and
ii
operate, or cause to be operated, any relevant procedures for short-term pollution which are not in operation for which it is responsible;
b
where the bathing water is controlled by a local authority, the local authority must —
i
take the local authority management measures which form part of the relevant procedures for short-term pollution there; and
ii
ensure that notification that the bathing water is affected by short-term pollution is available in the place referred to in regulation 9(1) ; and
c
where the bathing water is controlled by a private controller, the private controller must —
i
take the private controller management measures which form part of the relevant procedures for short-term pollution there; and
ii
ensure that notification that the bathing water is affected by short-term pollution is available in the place referred to in regulation 9(1) .
PART 6 FINAL PROVISIONS
Enforcement
16
1
If the appropriate Minister becomes aware that a local authority or private controller has failed in the local authority’s or private controller’s duties under these Regulations, the appropriate Minister may, by notice to the local authority or private controller, specify —
a
measures to be taken by the local authority or private controller to comply with these Regulations; and
b
the deadline by which those measures must be taken.
2
The appropriate Minister must consider any representations received from the local authority or private controller on the notice, and may amend or withdraw the notice.
3
If the measures specified have not been taken by the deadline specified, the appropriate Minister may —
a
take the measures; or
b
apply to the High Court for an order requiring the local authority or private controller to comply with these Regulations.
4
Section 108 of the Environment Act 1995 (powers of enforcing authorities and persons authorised by them) has effect in relation to England and Wales as if —
a
“pollution control functions” in relation to the Secretary of State, the Agency and the Welsh Ministers includes their respective functions under these Regulations; and
b
the powers in paragraph (4) of that section included the power to take any measure required of a local authority or private controller under these Regulations.
5
Section 202(2) of the Water Resources Act 1991 (information in connection with the control of pollution) has effect as if it conferred power on the Secretary of State, the Welsh Ministers and the Agency to require the furnishing of information reasonably required for the purposes of giving effect to the Bathing Water Directive.
Guidance
17
The appropriate Minister may give guidance to the Agency, any local authority or any private controller with respect to the practical implementation of the Bathing Water Directive, and the person to whom guidance is given shall have regard to it.
Amendment of the The Bathing Waters (Classification) Regulations 1991 and transitional provisions
18
1
In the Bathing Waters (Classification) Regulations 1991 —
a
omit regulation 2(3), substitute —
3
The criterion for a bathing water’s achieving the classification BW1 is that at least 95% of samples of waters meet the parametric value of 2,000 per 100 millilitres for Escherichia coli .
4
For the purposes of paragraph (3), water samples are to be taken and tested in accordance with the sampling and testing procedures set out in Part 1 of Schedule 3 to the Bathing Water Regulations 2008 .
; and
b
omit Schedules 1, 2 and 3.
2
Every notice served on the Agency under section 83 of the Water Resources Act 1991 (water quality objectives) in relation to classification BW1, and every notice which has effect as if so served, has effect subject to the transitional provisions in paragraph (1) .
3
The National Rivers Authority (Bathing Waters) Directions 1992 have effect as if —
a
the only entries in the Annex to Council Directive 76/160/EEC concerning the quality of bathing water were intestinal enterococci or Escherichia coli ; and
b
conformity with the values which appear in column G of that Annex were met where —
i
at least 90% of samples of waters taken and tested in accordance with these Regulations for intestinal enterococci meet the parametric value of 100 per 100 millilitres; and
ii
at least 80% of samples of waters taken and tested in accordance with these Regulations for Escherichia coli meet the parametric value of 100 per 100 millilitres.
4
Until the Agency classifies a bathing water under regulation 11 , for the purposes of regulation 9 , the Agency must, subject to the transitional provisions in this regulation, classify the bathing water by reference to whether it conforms to the values in column I or G of the Annex to Council Directive 76/160/EEC .
Revocations and other amendments
19
1
The Bathing Waters (Classification) Regulations 1991 and the Bathing Waters (Classification) (England) Regulations 2003 are revoked.
2
In the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003, in Schedule 2 (relevant functions), in Part 2 (subordinate instruments), omit paragraphs 11 and 26.
3
In the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004, in Schedule 2 (relevant functions), in Part 2 (subordinate instruments), omit paragraphs 11 and 26.
Signed by authority of the Secretary of State
Phil Woolas
Minister of State,
Department for Environment, Food and Rural Affairs
3rd April 2008
Jane Davidson
Minister for Environment, Sustainability and Housing, one of the Welsh Ministers
16th April 2008


text:
PART 1 INTRODUCTORY
Citation, commencement and extent
1
1
These Regulations may be cited as the Wireless Telegraphy (Licence Award) Regulations 2008 and shall come into force on 2nd April 2008.
2
These Regulations shall not extend to the Channel Islands or to the Isle of Man.
Interpretation
2
In these Regulations —
“applicant” means a body corporate making an application for a licence;
“associate” means, in relation to an applicant or bidder, a person who has a material interest in that applicant or bidder;
“authorised person” means a person specified by an applicant in its application as authorised to bind that applicant for all purposes relating to the award process;
“the auction stage” has the meaning given in regulation 14(1);
“auction stage bid” means a primary bid or supplementary bid;
“bidder” means an applicant which has qualified to bid in the award process and which has not withdrawn from the award process on or before the last day for withdrawal;
“bidder group” means, in relation to an applicant or bidder —
that applicant or bidder;
each associate of that applicant or bidder; and
each person in respect of whom the applicant or bidder has delivered to OFCOM a completed document in the form set out in Schedule 2;
“compatible combination of bids” means any combination of valid auction stage bids —
where the combination includes at most one bid from each bidder;
where each lot is selected in no more than one bid; and
where any two bids within the combination have different choices of licence condition, the frequencies which are comprised within at least two lots which are not selected in any bid within the combination separate the lots selected in these two bids where the different licence conditions have been chosen;
“confidential information” means, in relation to any applicant or bidder, any information which is not in the public domain and which if it were made public, or disclosed to another applicant (or potential applicant) or bidder or a member of their respective bidder groups, would be likely to affect decisions that such other applicant (or potential applicant) or bidder may make in relation to the award process;
“deadline”, in relation to any requirement imposed on any person by or under these Regulations, means (as the case may require) —
the time,
the date, or
the date, and the time on that date,
by which that requirement must be fulfilled by that person;
“electronic auction system” means the system established by OFCOM for bidders to participate in the award process;
“end of round time” has the meaning given in regulation 27(2) ;
“high power licence condition” means the licence condition which does not limit the maximum power of transmitters but limits the density of their deployment within a geographical area;
“initial deposit” shall be construed in accordance with regulation 4(3)(b) ;
“the last day for withdrawal” has the meaning given in regulation 9(1);
“licence” means a wireless telegraphy licence to be granted pursuant to these Regulations to establish or use a wireless telegraphy station or install or use wireless telegraphy apparatus in the United Kingdom at frequencies to be determined in accordance with the procedure set out in Part 4 or Part 5 of these Regulations;
“licence condition” means either the “high power licence condition” or the “low power licence condition”;
“lot” means a range of frequencies as set out in regulation 14(4);
“lot selection menu” shall be construed in accordance with regulation 11(1);
“low power licence condition” means the licence condition which limits the maximum power of transmitters but does not limit the density of their deployment within a geographical area;
“ MHz ” means megahertz;
“material interest” means, whether held directly or indirectly —
any interest (construed in accordance with sections 820 to 825 of the Companies Act 2006 ) in —
any share which carries, or any shares which together carry, more than twenty five per cent. of the votes entitled to be cast at a general meeting of the applicant or bidder; or
any share or shares in the case of which the consent of the holder of that share or those shares is required for the conduct of any business of the applicant or bidder; or
the right to appoint or remove a majority of the applicant’s or bidder’s board of directors;
“OFCOM’s bank account” means the bank account nominated by OFCOM for the purposes of the award process, details of which are published on their internet website;
“pounds” means pounds sterling;
“primary bid” has the meaning given in regulation 15(1);
“primary bid form” has the meaning given in regulation 15(3) ;
“round price” means the price per lot determined in accordance with regulation 19 ;
“supplementary bid” has the meaning given in regulation 17(1);
“supplementary bids form” has the meaning given in regulation 17(3);
“valid primary bid” has the meaning given in regulation 24(1) ;
“valid auction stage bid” means a valid primary bid or a valid supplementary bid;
“valid supplementary bid” has the meaning given in regulation 25(1) ;
“winning auction stage bid” shall be construed in accordance with regulation 41 (1);
“winning bidder” means a bidder who submitted a winning auction stage bid;
“winning combination of auction stage bids” shall be construed in accordance with regulation 41(2); and
“winning price” has the meaning given in regulation 43.
PART 2 APPLICATION STAGE
Applications for the grant of a licence
3
Applications for the grant of a licence shall only be made in accordance with the procedure set out in these Regulations.
Application
4
1
Only a body corporate may apply to OFCOM for a licence.
2
A body corporate may only make one application.
3
To apply for a licence, a body corporate must —
a
on the day specified by OFCOM for receipt of applications, deliver to OFCOM at Riverside House, 2a Southwark Bridge Road, London SE1 9HA within the times on that day specified by OFCOM a sealed envelope containing —
i
a document containing the application information required by, and the warranty set out in, Schedule 1, completed in respect of the applicant and signed on its behalf by two authorised persons;
ii
for each person, not being an associate of the applicant, which the applicant wishes to join its bidder group, a document in the form set out in Schedule 2 which has been —
aa
completed by the applicant and signed on its behalf by two authorised persons; and
bb
completed by and signed by or on behalf of the person in respect of whom that document is completed; and
b
by the deadline specified by OFCOM, pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the applicant, an initial deposit of fifty thousand pounds.
4
OFCOM shall publish the day, times and deadline on their internet website.
PART 3 QUALIFICATION STAGE
Assessment of bidder groups
5
1
OFCOM shall give notice to each applicant of —
a
the name of each other applicant and the names of its associates; and
b
the deadline by when each applicant must make a notification under paragraph (3) or (4) (as the case may be).
2
On receipt of that notice, each applicant must examine the names of the other applicants and their respective associates and determine whether any member of its bidder group is also an associate of another applicant or is also an applicant.
3
Where an applicant determines that a member of its bidder group is also an associate of another applicant or is also an applicant, it must notify the other applicant and OFCOM of that fact by the deadline specified by OFCOM under paragraph (1), and OFCOM shall specify a further deadline by when each applicant concerned must —
a
notify OFCOM of any change in circumstances the effect of which is that no member of its bidder group is an associate of another applicant or is an applicant; and
b
where changes have occurred to its bidder group, provide OFCOM with versions of the documents provided under regulation 4(3)(a)(i) and which comply with those provisions in the changed circumstances.
4
Where an applicant determines that no member of its bidder group is an associate of another applicant or is an applicant it must notify OFCOM of that fact by the deadline specified by OFCOM in the notice under paragraph (1).
5
If it appears to OFCOM from any application that a member of one bidder group is also a member of another bidder group, OFCOM shall give notice to each of the applicants concerned of that fact and specify the deadline by when each applicant concerned must —
a
notify OFCOM of any change in circumstances the effect of which is that no member of its bidder group is also a member of another bidder group; and
b
where changes have occurred to its bidder group provide OFCOM with a version of the document provided under regulation 4(3)(a)(i) which complies with those provisions in the changed circumstances.
6
OFCOM shall record the members of each applicant’s bidder group after the last deadline specified by OFCOM under paragraphs (3) and (5) .
Subsequent changes to bidder groups
6
1
An applicant or bidder may change its bidder group after the recording by OFCOM of the members of each applicant’s bidder group but, in relation to the award process, the applicant shall be subject to regulations 7(2) and 49 if they apply to any such change.
2
Where the change involves the addition or removal of an associate, the applicant or bidder must notify OFCOM of the change and submit a version of the document provided under regulation 4(3)(a)(i) which complies with those provisions in the changed circumstances.
3
To add a person who is not an associate of the applicant or bidder to its bidder group, the applicant or bidder must deliver to OFCOM a document in the form set out in Schedule 2 completed by the applicant or bidder and signed on its behalf by two authorised persons and completed by and signed by or on behalf of the person in respect of whom that document is completed.
Determination of applicants which are qualified to bid
7
1
OFCOM shall determine whether each applicant which has submitted an application in accordance with regulation 4 is qualified to bid in the award process.
2
An applicant shall not be qualified to bid in the award process if a member of its bidder group is also a member of another applicant’s bidder group.
3
In making their determination under paragraph (1), OFCOM shall take into account whether —
a
the grant of a licence to the applicant would be prejudicial to the interests of national security;
b
the applicant is a fit and proper person to hold a licence having regard to the probity of —
i
the applicant;
ii
each member of the applicant’s bidder group; and
iii
each director of each member of the applicant’s bidder group;
c
any of the information submitted to OFCOM by the applicant in connection with the award process is false or misleading;
d
any member of the applicant’s bidder group has colluded, or attempted to collude, or is colluding or attempting to collude, with another person to distort the outcome of the award process;
e
any member of the applicant’s bidder group has acted or is acting in a way which is likely to distort the outcome of the award process;
f
any member of the applicant’s bidder group, or any person to whom confidential information has been disclosed, has disclosed, or is disclosing or attempting to disclose or has incited or is 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 the applicant’s bidder group;
iii
to a provider of finance for the purpose of raising finance for the applicant’s application; or
iv
to a person for the purpose of enabling that person to decide whether to participate as a member of the applicant’s bidder group;
g
any member of the applicant’s bidder group has obtained or is obtaining or attempting to obtain confidential information relating to another applicant;
h
any member of the applicant’s bidder group is receiving or is 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; and
i
any person who is a member or a director or employee of a member of the applicant’s bidder group and is also a director or employee of a member of another bidder group is —
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.
4
Applicants must, if requested to do so by OFCOM, provide by a deadline specified by OFCOM any information or documentation which OFCOM reasonably require to make their determination.
5
If an applicant does not provide such information or documentation by the deadline specified by OFCOM, OFCOM shall also take that fact into account in making their determination.
6
Where OFCOM determine that an applicant is not qualified to bid in the award process, that applicant’s initial deposit shall not be forfeited for that reason.
Publication of determination
8
1
OFCOM shall notify each applicant of their determination under regulation 7(1).
2
OFCOM shall also notify each applicant qualified to bid of the name of each other applicant who is so qualified and shall publish the names of all applicants who are qualified to bid on OFCOM’s internet website.
Withdrawal of an application
9
1
OFCOM shall notify each applicant qualified to bid of the last day for withdrawal from the award process (“the last day for withdrawal”) and shall publish the last day for withdrawal on OFCOM’s internet website.
2
If, on or before the last day for withdrawal, OFCOM receive notice of an applicant’s intention to withdraw its application, signed by two authorised persons of that applicant, the application shall be withdrawn and the applicant shall be excluded from the award process and OFCOM shall notify all other applicants of the withdrawal.
3
Once an applicant withdraws its application, that applicant shall not be re-admitted to the award process.
4
Where an applicant withdraws its application in accordance with paragraph (2), that applicant’s initial deposit shall not be forfeited for that reason.
Determination of number of bidders
10
1
After the last day for withdrawal, OFCOM shall determine the number of bidders.
2
Where there are no bidders, OFCOM shall complete the award process by refunding to applicants which were not qualified, or withdrew in accordance with regulation 9 , the initial deposits (where such deposits have not already been forfeited under regulation 49) but not any interest which has accrued on the deposits.
3
Where there is only one bidder, OFCOM shall follow the procedure set out in Part 4 of these Regulations.
4
Where the number of bidders is more than one, OFCOM shall follow the procedure set out in Part 5 of these Regulations.
5
OFCOM shall publish the names of the bidders on OFCOM’s internet website together with a statement of whether OFCOM will proceed in accordance with Part 4 or Part 5 (as the case may be) of these Regulations.
PART 4 PROCEDURE WHERE THERE IS ONLY ONE BIDDER
Lot selection menu
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 lot selection menu in the form set out in Schedule 3 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 lot selection satisfies the following conditions —
a
at least one lot is selected;
b
a licence condition is specified which it wishes to have included in the licence for that selection of lots.
3
The licence fee shall be the total amount of the prices as specified by OFCOM on the lot selection menu for the lots 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 49, a sum equal to the licence fee less the initial deposit; or
b
where the initial deposit has been so forfeited, a sum equal to the licence fee.
Grant of licence
12
1
Where OFCOM have received from the bidder a completed lot 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 lots selected on that completed lot selection menu which includes the licence condition that matches the licence condition chosen by the bidder.
2
Where OFCOM have not received from the bidder a completed lot selection menu in accordance with regulation 11(1)(a) or the required sum in accordance with regulation 11(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 49) be forfeited.
Completion of the award process
13
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 lots in respect of which the licence was granted, the licence condition applying to the licence 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 49) but not any interest which has accrued on the deposits.
PART 5 PROCEDURE WHERE THERE IS MORE THAN ONE BIDDER
CHAPTER 1
Auction stage
Auction stage
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 (“the auction stage”).
2
During the auction 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 auction stage shall be a bid for a selection of lots.
4
The lots available for selection are —
a
Lot LA - 1452.000 – 1453.816 MHz;
b
Lot LB - 1453.816 – 1455.528 MHz;
c
Lot LC - 1455.528 – 1457.240 MHz;
d
Lot LD - 1457.240 – 1458.952 MHz;
e
Lot LE - 1458.952 – 1460.664 MHz;
f
Lot LF - 1460.664 – 1462.376 MHz;
g
Lot LG - 1462.376 – 1464.088 MHz;
h
Lot LH - 1464.088 – 1465.800 MHz;
i
Lot LI - 1465.800 – 1467.512 MHz;
j
Lot LJ - 1467.512 – 1469.224 MHz;
k
Lot LK - 1469.224 – 1470.936 MHz;
l
Lot LL - 1470.936 – 1472.648 MHz;
m
Lot LM - 1472.648 – 1474.360 MHz;
n
Lot LN - 1474.360 – 1476.072 MHz;
o
Lot LO - 1476.072 – 1477.784 MHz;
p
Lot LP - 1477.784 – 1479.500 MHz; and
q
Lot LQ - 1479.500 – 1492.000 MHz.
CHAPTER 2
Structure of auction stage
Primary bids
15
1
A bid made during a primary bid round (“primary bid”) shall–
a
be a bid for a selection of lots at an amount in whole pounds which shall be the total amount of the round prices in that primary bid round for each lot included in the selection; and
b
contain the choice of licence condition which the bidder wishes to have included in a licence for that selection of lots.
2
The round price means the price per lot determined in accordance with regulation 19.
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 the selection of lots it wishes to be included in a licence;
b
specify the choice of licence condition which it wishes to have included in a licence for that selection of lots; and
c
specify an amount in whole pounds that it is willing to pay for the licence, being the total amount of the round prices for each lot included in that selection of lots.
4
A bidder shall submit no more than one primary bid in a primary bid round.
5
The selection of lots specified 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 (6) 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).
6
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 specified in that primary bid set out in Schedule 5.
Requirement for a valid primary bid in the first primary bid round
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 49) be forfeited.
Supplementary bids
17
1
A bid made during the supplementary bids round (“supplementary bid”) shall–
a
be a bid for a selection of lots at an amount in whole pounds; and
b
contain the choice of licence condition which the bidder wishes to have included in a licence for that selection of lots.
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 shall, on a form provided to the bidder by OFCOM (“supplementary bids form”) —
a
specify the selection of lots it wishes to be included in a licence;
b
specify the choice of licence condition which it wishes to have included in a licence for that selection of lots; and
c
specify an amount in whole pounds that it is willing to pay for the licence.
4
The selection of lots comprised in a supplementary bid made by a bidder may be the same as or different from the selection of lots comprised in a primary bid made by the bidder.
5
A bidder shall submit no more than two thousand supplementary bids in the supplementary bids round, subject to the restrictions set out in paragraphs (6) and (7).
6
A bidder may not submit more than two supplementary bids for each particular selection of lots.
7
Where a bidder submits two supplementary bids for a particular selection of lots, each of those supplementary bids must specify a different choice of licence condition.
8
A bidder is not required to submit a supplementary bid.
Number of primary bid rounds
18
1
Where the combination of all bids received in a primary bid round is a compatible combination of bids —
a
there shall be no further primary bid rounds; and
b
there shall be a supplementary bids round.
2
Where the combination of all bids received in a primary bid round is not a compatible combination of bids, there shall be a further primary bid round unless OFCOM determine in accordance with paragraph (3) that there shall be no further primary bid rounds.
3
OFCOM shall only make such a determination where they are satisfied that it is unlikely that the information that would be available to bidders under regulation 32 following any further primary bid rounds would affect —
a
the determination of the winning combination of auction stage bids in accordance with regulation 41; or
b
the determination of the winning price payable by the winning bidder in accordance with regulation 43.
4
Where OFCOM have made a determination under paragraph (2) there shall be a supplementary bids round.
Determination of round prices for primary round bids
19
1
In the first primary bid round, the round price for each lot shall be the amount set out in Schedule 4.
2
In subsequent primary bid rounds, the round price for each lot shall be determined by OFCOM in accordance with paragraphs (3) or (5) (as the case may be).
3
Where a further primary bid round occurs —
a
the round price for any lot where that lot was included in more than one bid in the previous primary bid round;
b
the round price for any lot where that lot was only included in one bid in the previous primary bid round where —
i
one of the lots immediately adjacent to that lot was only included in one other bid; and
ii
these two bids specified different choices of licence condition; and
c
the round price for any lot where that lot was only included in one bid in the previous primary bid round where —
i
one of the lots immediately adjacent to that lot was not included in any bid;
ii
the next immediately adjacent lot was only included in one other bid; and
iii
these two bids specified different choices of licence condition;
shall be an amount that is higher than the amount that was the round price for that lot in the previous primary bid round, subject to the limitation in paragraph (4).
4
In the circumstances described in paragraph (3), the amount of the round price for the lot shall not be more than twice the amount of the round price for that lot in the previous primary bid round.
5
The amount of the round price for any lot not included in the circumstances described in paragraph (3), shall be the same amount as it was in the previous primary bid round.
Bidder’s eligibility limit for primary bid rounds
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).
Determination of bidder’s eligibility limit for the first primary bid round
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 fifty 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 49).
3
Where the number that results from the calculation in paragraph (2) is greater than nineteen, the eligibility limit shall be nineteen.
4
Where the number that results from the calculation in paragraph (2) is not greater than nineteen, 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.
Determination of bidder’s eligibility limit for subsequent primary bid rounds
22
1
For subsequent primary bid rounds, each bidder’s eligibility limit shall be determined either under paragraphs (2) to (4) or under paragraph (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 specified in that primary bid in accordance with Schedule 5.
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 subsequent primary bid round shall be zero.
Additional deposit before first primary bid round
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 the 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.
Valid primary bids
24
1
A primary bid shall only be taken into consideration for the purposes of determining —
a
the number of primary bid rounds in accordance with regulation 18;
b
the round prices for primary bid rounds in accordance with regulation 19;
c
the winning combination of auction stage bids in accordance with regulation 41; and
d
the winning price payable by a winning bidder in accordance with regulation 43;
if it is a primary bid which 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(4);
c
the primary bid complies with the restriction 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) .
Valid supplementary bids
25
1
A supplementary bid shall only be taken into consideration for the purposes of determining —
a
the winning combination of auction stage bids under regulation 41; and
b
the winning price payable by a winning bidder under regulation 43;
if it is a supplementary bid which satisfies the conditions set out in paragraph (2) (“valid supplementary bid”).
2
The conditions 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 satisfies the requirements set out in regulation 26 ;
c
the supplementary bid is submitted in accordance with the restriction set out in regulation 17(6); and
d
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).
Restrictions on the amount of a supplementary bid
26
1
The amount of a supplementary bid must be not less than the total amount of the round prices in the first primary bid round for the selection of lots comprised in the supplementary bid
2
Where the supplementary bid is for a selection of lots in respect of which the bidder has also made a primary bid and the licence condition chosen is the same in the primary bid and the supplementary bid, the amount of the supplementary bid must be greater than the amount of the highest primary bid made by the bidder for that selection of lots for which the licence condition chosen is the same as that in the supplementary bid.
3
Where —
a
the bidder did not make a valid primary bid in the final primary bid round; or
b
the total number of eligibility points associated with the selection of lots comprised in the supplementary bid is greater than the total number of eligibility points associated with the selection of lots comprised in the valid primary bid made by the bidder in the final primary bid round,
the amount of the supplementary bid must not be greater than the amount determined in accordance with paragraph (4).
4
The amount referred to in sub-paragraph (3) is the total amount of the round prices for the selection of lots comprised in the supplementary bid in the latest primary bid round in which a primary bid made by the bidder for that selection of lots could have satisfied the rules set out in regulation 15(5).
CHAPTER 3
Procedure for primary bid rounds
Notice to be given to bidders before primary bid rounds and extensions to rounds
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, subject to paragraph (2), bidders may make primary bids;
b
in respect of each lot, the round price for the lot (determined in accordance with regulation 19 ); and
c
the eligibility limit for that bidder 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 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 the 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.
Submission of primary bid form to OFCOM
28
1
Except as provided for in regulation 29 , the bidder must submit the completed primary bid form to OFCOM by using the electronic auction system.
2
The completed primary bid form must be submitted to OFCOM by the end of round time.
Alternative method for submission of primary bid form
29
1
Where OFCOM are satisfied that a bidder is unable using reasonable endeavours 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.
Incomplete or defective primary bid form
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 taken into consideration for the purposes of determining —
a
the number of primary bid rounds in accordance with regulation 18 ;
b
the round prices for primary bid rounds in accordance with regulation 19;
c
the winning combination of auction stage bids in accordance with regulation 41; and
d
the winning price payable by a winning bidder in accordance with regulation 43.
Notification that primary bid not valid
31
OFCOM shall notify a bidder which submits a primary bid that is not a valid primary bid of that fact and shall give the reasons why the bid is not a valid primary bid.
Release of information on primary bids in auction stage
32
After the end of a primary bid round and before the start of the subsequent primary bid round (or the start of the supplementary bids round if there is no subsequent primary bid round), OFCOM shall notify bidders of —
a
the number of bids made in that round which selected each lot available for selection; and
b
the number of those bids which specified each choice of licence condition for each lot available for selection.
Additional deposit for primary bid rounds
33
1
Where in respect of a primary bid the amount specified by a bidder under regulation 15(3)(c) 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 49) OFCOM may, having regard to the desirability of securing an efficient outcome to the auction 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 49) is not less than the highest valid primary bid that the bidder made before OFCOM issued the notification 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 provisions 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 bidders eligibility limit shall be zero.
CHAPTER 4
Procedure for supplementary bids round and final auction stage deposit
Notice to be given to bidders before supplementary bids round
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, subject to regulation 37, bidders may make supplementary bids; and
b
the deadline by when bidders must pay a further sum in pounds as a deposit in accordance with regulation 40.
Submission of supplementary bids form to OFCOM
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) .
Alternative method for submission of supplementary bids form
36
1
Where OFCOM are satisfied that a bidder is unable using reasonable endeavours 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.
Extension to supplementary bids round
37
1
Where OFCOM have not received a completed supplementary bids form from a bidder by the time notified to bidders under regulation 34(a) and 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 have submitted 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.
Incomplete or defective supplementary bids form
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 auction stage bids under regulation 41 ; and
ii
the price payable by a winning bidder under regulation 43 ;
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 auction stage bids under regulation 41 ; and
ii
the price payable by a winning bidder under regulation 43 .
Notification that supplementary bid not valid
39
OFCOM shall notify a bidder which submits a supplementary bid that is not a valid supplementary bid of that fact and shall give the reasons why the bid is not a valid supplementary bid.
Final auction stage deposit
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 49) 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)(c); and
b
the amount of the bidder’s highest valid supplementary bid as specified by the bidder under regulation 17(3(c).
2
Where a bidder does not satisfy the provisions set out in paragraph (1) , OFCOM shall notify the bidder of that fact and the bidder shall be excluded from the award process and shall not receive a refund of its initial deposit or any sums paid as a deposit under regulation 23 , 33 or paragraph (1) , which shall (where not already forfeited under regulation 49 ) be forfeited, and all of that bidder’s primary bids and supplementary bids shall be deemed to be invalid and shall not be taken into consideration for the purpose of determining —
a
the winning combination of auction stage bids under regulation 41 ; and
b
the winning price payable by a winning bidder under regulation 43 .
CHAPTER 5
Determination of winning auction stage bids and conclusion of auction stage
Determination of the winning auction stage bids and the winning combination of auction stage bids
41
1
The winning auction stage bids shall be those valid auction stage bids that comprise the winning combination of auction stage bids.
2
Unless paragraph (3) applies, the winning combination of auction stage bids shall be the compatible combination of bids having the highest total value of amounts bid.
3
Where there is more than one compatible combination of bids for which the total value is equal highest, the winning combination of auction stage bids shall be determined in accordance with the order of precedence set out in paragraph (4) or, where paragraph (5) applies, in accordance with that paragraph.
4
The order of precedence shall be determined by the total number of eligibility points associated with each compatible combination of bids in accordance with paragraph (6) such that compatible combinations of bids to which a greater total number of eligibility points are associated prevail over compatible combinations of bids to which a lesser total number of eligibility points are associated.
5
Where the same number of eligibility points is associated, in accordance with paragraph (6), with any two or more compatible combinations of bids for which the total value is equal highest, OFCOM shall employ a method of random selection from amongst those compatible combinations of bids to determine the winning combination of auction stage bids.
6
The number of eligibility points associated with a compatible combination of bids shall be a number equal to the total of the eligibility points associated with each lot included in the selections of lots specified in the bids constituting that compatible combination of bids in accordance with Schedule 5.
Unallocated lots
42
1
Where the winning combination of auction stage bids results in some lots not being included in any winning auction stage bid (“unallocated lots”), OFCOM shall–
a
where there are only two adjoining unallocated lots situated immediately between lots selected in winning auction stage bids with different choices of licence condition, assign to the winning bidders for those winning auction stage bids the unallocated lot adjacent to the lot selected in their winning auction stage bid; and
b
in any other situation where there are unallocated lots, withhold those lots from being assigned.
2
A winning bidder’s choice of licence condition does not apply to any unallocated lots assigned to it.
Determination of winning price of winning auction stage bids
43
In respect of each winning auction stage bid, OFCOM shall determine an amount in accordance with Schedule 6 (“the winning price”) which shall be payable by the relevant winning bidder.
Notification of results of auction stage
44
Following determination of the winning combination of auction stage bids under regulation 41 and the determination of the winning price for each winning auction stage bid under regulation 43 , OFCOM shall notify each bidder of —
a
the names of the winning bidders; and
b
in respect of each winning bidder —
i
the lots comprised in its winning auction stage bid;
ii
the licence condition which will be included in the licence for those lots;
iii
any unallocated lots assigned to it under regulation 42(1)(a); and
iv
the winning price for that winning auction stage bid.
CHAPTER 6
Grant stage
Determination of the licence fee
45
The licence fee payable by a winning bidder shall be the amount equal to the winning price for that winning bidder’s winning auction stage bid determined by OFCOM under regulation 43 .
Procedure where amount of winning bidder’s deposit is less than the licence fee
46
1
Where the amount of a winning bidder’s deposit (including the initial deposit and any sums paid as a deposit under regulations 23, 33 or 40, but not including any sum forfeited under regulation 49) is an amount that is less than the amount of the winning bidder’s licence fee as determined in accordance with regulation 45 —
a
OFCOM shall notify the winning bidder of a deadline by when the bidder must comply with sub-paragraph (b); and
b
the winning bidder must by the deadline specified in sub-paragraph (a) pay into OFCOM’s bank account by a same day electronic transfer, with accompanying information which identifies the bidder, a sum in pounds calculated in accordance with paragraph (2).
2
The sum which the winning bidder must pay to OFCOM shall be the difference between the amount of the winning bidder’s licence fee determined in accordance with regulation 43 and the amount of the winning bidder’s deposit (including the initial deposit and any sums paid as a deposit under regulations 23, 33 or 40, but not including any sum forfeited under regulation 49).
3
Where a winning bidder has satisfied the provisions set out in paragraph (1)(b), OFCOM shall grant that winning bidder a licence for the selection of lots contained in that winning bidder’s winning auction stage bid which includes the licence condition that matches the licence condition chosen in that winning auction stage bid, and any unallocated lots assigned to that bidder under regulation 42(1)(a).
4
Where a winning bidder does not satisfy the provisions set out in paragraph (1)(b), the winning bidder shall not be entitled to the grant of a licence under these Regulations and shall not receive a refund of its initial deposit or any sums paid as a deposit under regulations 23, 33 or 40, which shall (where not already forfeited under regulation 49) be forfeited.
Procedure where amount of winning bidder’s deposit is greater than or equal to the licence fee
47
1
Where the amount of winning bidder’s deposit (including the initial deposit and any sum paid as a deposit under regulation 23, 33 or 40, but not including any sum forfeited under regulation 49) is greater than or equal to the amount of the winning bidder’s licence fee determined in accordance with regulation 45, OFCOM shall —
a
grant the winning bidder a licence for the selection of lots contained in that bidder’s winning auction stage bid which includes the licence condition that matches the licence condition chosen in that winning auction stage bid, and any unallocated lots assigned to that winning bidder under regulation 42(1)(a); and
b
refund to the winning bidder a sum in pounds calculated in accordance with paragraph (2).
2
The sum which OFCOM shall refund to a winning bidder shall be the difference (if any) between the amount of the winning bidder’s deposit (including the initial deposit and any sums paid as a deposit under regulations 23, 33 or 40, but not including any sum forfeited under regulation 49) and the amount of the winning bidder’s licence fee determined in accordance with regulation 45, but not any interest which has accrued on the deposit.
Completion of the award process
48
OFCOM shall compete the award process by —
a
publishing on their internet website details of all valid auction stage bids made by each bidder, the names of the persons to whom licences were granted, the selection of lots included in those licences, the licence conditions included in those licences and the details of the licence fees paid; and
b
refunding to applicants which were not qualified or which withdrew in accordance with regulation 9 and to bidders which were not winning bidders, the initial deposits and any sums paid as a deposit under regulations 23 , 33 or 40 (where such deposits have not been forfeited under regulation 16 , 40(2) or 49), but not any interest which has accrued on the deposits.
PART 6 ACTIVITY RULES
Forfeit of deposit and exclusion from award process
49
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 51 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 regulations 23 , 33 , or 40 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
50
1
Where a bidder is excluded from the award process under regulation 49(b) during the auction stage, all of the primary bids and supplementary bids submitted by the bidder shall be deemed to be invalid and shall not be taken into consideration for the purpose of determining —
a
the winning combination of auction stage bids under regulation 41;
b
the winning price payable by a winning bidder under regulation 43.
Events
51
The events referred to in regulation 49, 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 is —
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; and
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) ; and
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
52
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
53
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 which 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
54
1
Subject to regulations 55 and 56, 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; or
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
55
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 auction and any requirements relating to the use of passwords and authentication of communications made by means of the alternative method.
4
Bidders must use the alternative method of participating in the auction for the purposes notified to them under paragraph (3) .
Rerunning rounds
56
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).
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; and
c
resume the award procedure from the end of the previous round of the auction (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).
4
Where this paragraph applies, OFCOM shall determine whether it is necessary in order to secure a fair and efficient outcome —
a
to disregard the bids made in one or more rounds; and
b
to 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 resume the award process from the start of the first primary bid round.
5
Where paragraph (4) applies, OFCOM shall take all reasonable steps to notify bidders of its determination under that paragraph.
Refunds
57
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.
Philip Rutnam
Partner, Spectrum Policy
For and by authority of the Office of Communications
12th March 2008


text:
Citation
1
This Order may be cited as the Clean Neighbourhoods and Environment Act 2005 (Commencement No. 5) Order 2008.
Provisions coming into force on 6th April 2008
2
The following provisions of the Clean Neighbourhoods and Environment Act 2005 come into force on 6th April 2008 —
a
section 68 (termination of police responsibility for stray dogs); and
b
Part 6 of Schedule 5 (repeals, stray dogs).
Jonathan Shaw
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
31st March 2008


text:
Title, Commencement and Interpretation
1
1
The title of this Order is the Abertawe Bro Morgannwg University National Health Service Trust (Transfer of Property, Rights and Liabilities) Order 2008 and it comes into force on 16 September 2008.
2
In this Order, unless the context otherwise requires;
“the transfer date” (“ y dyddiad trosglwyddo ”) means the 16 September 2008;
Transfer of property, rights and liabilities
2
On the transfer date the property known as Central Stores, Welsh Health Supplies, Princess of Wales Hospital, Coity Road, Bridgend CF31 1UZ, and all the rights and liabilities attaching to that property shall be transferred from the Welsh Ministers to Abertawe Bro Morgannwg University National Health Service Trust.
Edwina Hart
Minister for Health and Social Services, one of the Welsh Ministers
15 September 2008


text:
Citation
1
This Order may be cited as The Canon Peter Hall CofE Primary School (Designation as having a Religious Character) Order 2008.
Designation of School
2
1
The Canon Peter Hall CofE Primary School, Pelham Road, Immingham, Lincolnshire, DN40 1JS, a voluntary controlled school, is hereby designated as a school having a religious character.
2
The religious denomination in accordance with whose tenets religious education is, or may be, required to be provided at the school in accordance with Schedule 19 to the School Standards and Framework Act 1998 is Church of England.
J D Loosley
A Deputy Director in the
Department for Children, Schools and Families
30th July 2008


text:
Citation, commencement and application
1
1
These Regulations may be cited as the Education (Hazardous Equipment and Materials in Schools) (Removal of Restrictions on Use) (England) Regulations 2008 and come into force on 1st September 2008.
2
These Regulations apply in relation to England only.
Revocation of Education (Schools and Further and Higher Education) Regulations 1989
2
The Education (Schools and Further and Higher Education) Regulations 1989 are revoked.
Amendment of Education (Special Educational Needs) (Approval of Independent Schools) Regulations 1994
3
Paragraph 7 of Schedule 1 to the Education (Special Educational Needs) (Approval of Independent Schools) Regulations 1994 is omitted.
Andrew Adonis
Parliamentary Under Secretary of State
Department for Children, Schools and Families
26th June 2008