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The Utilities Contracts (Scotland) Regulations 2006

Type Scottish-Statutory-Instrument

Publication 2006-01-04

Last updated 2006-01-31

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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(9) Where the contract notice is not transmitted by facsimile or electronic means and when using the reductions specified in paragraphs (3), (6) and (7), the date which a utility using the open procedure fixes as the last date for the receipt by it of tenders, shall be not less than 22 days from the date of despatch of the contract notice.

(10) When using the reductions specified in paragraphs (3), (6) and (7) the date which a utility using the restricted procedure or the negotiated procedure with a call for competition fixes as the last date for the receipt by it of requests to be selected to tender for or to negotiate the contract, shall be not less than 15 days from the date of despatch of the notice or invitation.

(11) Subject to paragraph (5) and when using the reductions specified in paragraphs (3), (6) and (7), the date which a utility using the restricted procedure or the negotiated procedure with a call for competition fixes as the last date for the receipt by it of tenders, shall be not less than 10 days from the date of despatch of the invitation to tender.

(12) Subject to paragraph (5), a utility shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where–

(a) an economic operator requests the contract documents in sufficient time to allow a utility to respond in accordance with paragraphs (3) and (14) and, for whatever reason, the contract documents are not supplied in accordance with those paragraphs; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

(13) Where a utility using the open procedure does not offer unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (7), the utility shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator, provided that the documents are requested in good time before the date specified in the contract notice as the final date for the receipt by it of tenders.

(14) A utility using the open procedure, the restricted procedure or the negotiated procedure shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the utility to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

(15) A utility using the restricted procedure or the negotiated procedure with or without a call for competition shall send invitations in writing simultaneously to each of the economic operators selected to tender for or to negotiate the contract and the invitation shall–

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (7); or

(c) where the contract documents are held by an entity other than the utility, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(16) Where the contract documents are held by an entity other than the utility, the utility shall ensure that the contract documents are sent to economic operators by the most rapid means practicable.

(17) The utility shall include the following information in the invitation–

(a) the final date for making requests for further information and the amount and method of payment of any fee which may be charged for supplying that information;

(b) the final date for receipt by it of tenders, the address to which they must be sent and the one or more languages in which they must be drawn up;

(d) an indication of the information to be included with the tender;

(e) the criteria for the award of the contract if this information was not specified in the contract notice, the notice on the existence of a qualification system used as a means of calling for competition published in accordance with regulation 16(2)(a)(ii) or the contract documents; and

(f) the relative weighting of the contract award criteria or, where appropriate, the descending order of importance of such criteria if this information was not specified in the contract notice, the notice on the existence of a qualification system or the contract documents.

PART 4 — QUALIFICATION AND SELECTION OF ECONOMIC OPERATORS

General

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(1) Where a utility establishes criteria for the rejection of economic operators in accordance with regulation 26(1), 26(3), 27(1) or 27(2), it shall exclude any economic operator which meets those criteria when making its selection of the economic operators to be awarded a contract, to be invited to tender for, or to negotiate the contract.

(2) A utility shall make its selection of the economic operators to be awarded a contract, to be invited to tender for, or to negotiate the contract in accordance with the selection criteria established by it in accordance with regulations 26 and 27.

(3) A utility using the restricted or negotiated procedure with a call for competition shall reduce, where appropriate and in accordance with regulation 27, the number of economic operators selected in accordance with paragraphs (1) and (2) of this regulation.

(4) Where a utility makes a call for competition in respect of a contract by publishing a notice on the existence of a qualification system, when making its selection of the economic operators to be invited to tender for or to negotiate that contract, the utility shall–

(a) qualify economic operators in accordance with regulation 25; and

(b) apply the provisions of paragraphs (1), (2) and (3) which are relevant to the restricted procedure or the negotiated procedure to such qualified economic operators.

(5) A utility shall verify that the tenders submitted by the economic operators which have been selected by the utility comply with the rules and requirements applicable to tenders and shall award the contract on the basis of the criteria referred to in regulation 30.

Mutual recognition concerning administrative, technical or financial conditions

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(1) When using the negotiated procedure or the restricted procedure and in determining what rules and criteria are to be met by economic operators to be invited to tender for or to negotiate a contract or to qualify under a qualification system, a utility shall not–

(a) impose conditions of an administrative, technical or financial nature on some economic operators which are not imposed on others; or

(b) require tests or the submission of evidence which duplicates objective evidence already available.

(2) For the purpose of assessing an economic operator's technical ability, a utility may request that economic operator to provide–

(a) a certificate–

(i) attesting its conformity to quality assurance standards based on the relevant European standard; and

(ii) from an independent body established in any relevant State conforming to the European standard concerning certification; or

(b) any other evidence of its conformity to quality assurance measures which are equivalent to the standards referred to in sub paragraph(a)(i).

(3) Where the contract to be awarded is a works contract or a services contract, for the purposes of verifying the economic operator's technical abilities, a utility may, where appropriate, request an indication of the environmental management measures which the economic operator will apply when performing the contract and a utility may request that economic operator to provide–

(a) a certificate–

(i) attesting its conformity to environmental management standards based on–

(aa) the Community Eco Management and Audit Scheme ; or

(bb) the relevant European standard or international standard; and

(ii) from an independent body established in any relevant State conforming to Community law or the relevant European standard or international standard concerning certification; or

(b) any other evidence of its conformity to environmental management measures which are equivalent to the standards referred to in sub paragraph (a)(i).

Qualification system

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(1) A utility may establish and operate a system of qualification of economic operators if that system complies with this regulation.

(2) The utility shall permit economic operators to apply for qualification under the system at any time during its operation.

(3) The system may involve different stages of qualification and shall be based on objective rules and criteria as determined from time to time by the utility and those criteria and rules may include technical specifications in which case the provisions of regulation 12 shall apply.

(4) The rules and criteria referred to in paragraph (3) may include the rejection criteria referred to in regulation 26(3) and (5).

(5) Where the utility is a contracting authority, the rules and criteria referred to in paragraph (3) shall include the rejection criteria referred to in regulation 26(1).

(6) Where the criteria referred to in paragraph (3) includes requirements relating to the economic and financial capacity or the technical or professional abilities of an economic operator–

(a) the economic operator, or a group of economic operators as referred to in regulation 28, may rely on the capacity or abilities of other entities or members in the group, whatever the legal nature of the link between the economic operator or the group of economic operators and the other entities; and

(b) the economic operator or the group of economic operators shall prove to the utility that the necessary resources will be available to it, and such proof may in particular include an undertaking from those entities to that effect.

(7) In determining what rules and criteria are to be met by applicants to qualify under the system a utility shall comply with regulation 24.

(8) Where the utility makes a call for competition in respect of a contract by publishing a notice on the existence of a qualification system, it shall comply with regulation 23(4).

(9) The rules of and criteria applying to the system shall be made available on request to economic operators and any amendment of those rules and criteria shall be sent to them as the amendment is incorporated into the system.

(10) The utility may establish a system of qualification where an economic operator may qualify under the system of, or be certified by, another person, and in those circumstances the utility shall inform economic operators which apply to qualify the name of that other person.

(11) The utility shall inform applicants for qualification of the success or failure of their application within 6 months from the date of presentation of an application and, if the decision will take longer than 4 months, the utility shall inform the applicant, within 2 months of the date of presentation of the application of–

(a) the reasons justifying a longer period; and

(b) the date by which its application will be accepted or refused.

(12) The utility shall inform any applicant whose application to qualify is refused of the decision and the reasons for refusal as soon as possible and under no circumstances later than 15 days after the date of the decision.

(13) An application may only be refused if the applicant fails to meet the requirements for qualification laid down in accordance with paragraph (3).

(14) The utility shall keep a written record of qualified economic operators which may be divided into categories according to the type of contract for which the qualification is valid.

(15) The utility may cancel the qualification of an economic operator which has qualified under the qualification system only if it does not continue to meet the rules and criteria laid down in accordance with paragraph (3).

(16) The utility may not cancel a qualification unless it notifies the economic operator in writing at least 15 days before the qualification is due to be cancelled of the reasons for the proposed cancellation.

(17) The utility shall send a notice in the form of the qualification system notice in Annex VII to Commission Regulation (EC) No. 1564/2005 and containing the information relating to the qualification system therein specified to the Official Journal when the system is first established.

(18) If the utility expects to operate the system for more than 3 years, or if it has operated the system for more than 3 years, it shall send a notice as referred to in paragraph (17) on an annual basis after the year in which the system is first established.

Criteria for rejection of economic operators

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(1) Subject to paragraph (2), where a utility is a contracting authority, it shall treat as ineligible and shall not select an economic operator in accordance with these Regulations if the utility has actual knowledge that the economic operator or its directors or any other person who has powers of representation, decision or control of the economic operator has been convicted of any of the following offences–

(a) the common law offence of conspiracy where that conviction relates to participation in a criminal organisation as defined in Article 2(1) of Council Joint Action 98/733/JHA ;

(b) corruption within the meaning of section 1 of the Public Bodies Corrupt Practices Act 1889 or section 1 of the Prevention of Corruption Act 1906 ;

(d) fraud, where the offence relates to fraud affecting the financial interests of the European Communities as defined by Article 1 of the Convention relating to the protection of the financial interests of the European Union , within the meaning of–

(i) the offence of cheating the Revenue;

(ii) the common law offence of fraud;

(iii) the common law offence of theft;

(iv) fraudulent trading within the meaning of section 458 of the Companies Act 1985 ;

(v) defrauding the Customs within the meaning of the Customs and Excise Management Act 1979 and the Value Added Tax Act 1994 ;

(vi) an offence in connection with taxation in the European Community within the meaning of section 71 of the Criminal Justice Act 1993 ; or

(vii) the common law offence of uttering; or

(viii) the common law offence of attempting to pervert the course of justice;

(e) the common law offence of incitement to commit a crime;

(f) money laundering within the meaning of the Money Laundering Regulations 2003 ; or

(g) any other offence within the meaning of Article 45(1) of the Public Sector Directive as defined by the national law of any relevant State.

(2) In any case where an economic operator or its directors or any other person who has powers of representation, decision or control has been convicted of an offence described in paragraph (1), a utility may disregard the prohibition described there if it is satisfied that there are overriding requirements in the general interest which justify doing so in relation to that economic operator.

(3) Where a utility is not a contracting authority, the criteria which the utility uses for deciding not to select an economic operator may include the fact that the economic operator or its directors or any other person who has powers of representation, decision or control of the economic operator has been convicted of any of the offences in paragraph (1).

(4) A utility may apply to the relevant competent authority to obtain further information regarding the economic operator and in particular details of convictions of the offences listed in paragraph (1) if it considers it needs such information to decide on any exclusion referred to in paragraphs (1) and (3).

(5) A utility may treat an economic operator as ineligible or decide not to select an economic operator in accordance with these Regulations on one or more of the following grounds, namely that the economic operator–

(a) being an individual is bankrupt or has had a receiving order or administration order or bankruptcy restrictions order made against that economic operator or has made any composition or arrangement with or for the benefit of that economic operator's creditors or has made any conveyance or assignment for the benefit of that economic operator's creditors or appears unable to pay, or to have no reasonable prospect of being able to pay, a debt within the meaning of section 268 of the Insolvency Act 1986 , or article 242 of the Insolvency (Northern Ireland) Order 1989 , or in Scotland has granted a trust deed for creditors or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of that economic operator's estate, or is the subject of any similar procedure under the law of any other state;

(b) being a partnership constituted under Scots law has granted a trust deed or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of its estate;

(c) being a company or any other entity within the meaning of section 255 of the Enterprise Act 2002 has passed a resolution or is the subject of an order by the court for the company's winding up otherwise than for the purpose of bona fide reconstruction or amalgamation, or has had a receiver, manager or administrator on behalf of a creditor appointed in respect of the company's business or any part thereof or is the subject of the above procedures or is the subject of similar procedures under the law of any other state;

(d) has been convicted of a criminal offence relating to the conduct of that economic operator's business or profession;

(e) has committed an act of grave misconduct in the course of that economic operator's business or profession;

(f) has not fulfilled obligations relating to the payment of social security contributions under the law of any part of the United Kingdom or of the relevant State in which the economic operator is established;

(g) has not fulfilled obligations relating to the payment of taxes under the law of any part of the United Kingdom or of the relevant State in which the economic operator is established; or

(h) is guilty of serious misrepresentation in providing any information required of that economic operator under this regulation.

(6) A utility may require an economic operator to provide such information as it considers it needs to make the evaluation in accordance with paragraphs (1), (3) and (5) except that it shall accept as conclusive evidence that an economic operator does not fall within the grounds specified in paragraphs (1), (3), (5)(a), (b), (c), (d), (f) or (g) if that economic operator provides to the utility

(a) in relation to the grounds specified in paragraphs (1), (3), (5)(a), (b), (c) or (d)–

(i) an extract from the judicial record; or

(ii) in a relevant State which does not maintain such a judicial record, a document issued by the relevant judicial or administrative authority;

(b) in relation to the grounds specified in paragraphs (5)(f) or (g), a certificate issued by the relevant competent authority; and

(c) in a relevant State where the documentary evidence specified in paragraphs (6)(a) and (b) is not issued in relation to one of the grounds specified in paragraphs (1), (3),(5)(a), (b), (c), (d), (f) or (g) a declaration on oath made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths.

(7) In this regulation, “relevant” in relation to a judicial, administrative or competent authority, notary public or Commissioner for oaths means an authority nominated by, or a notary public or Commissioner for oaths in, the relevant State in which the economic operator is established.

Criteria for selection of economic operators

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(1) A utility using the open procedure shall establish selection criteria on the basis of objective criteria and rules which it determines and which it makes available to economic operators which request them.

(2) A utility using the restricted procedure or the negotiated procedure, with or without a call for competition, shall make the selection of the economic operators to be invited to tender for or to negotiate the contract on the basis of objective criteria and rules which it determines and which it makes available to economic operators which request them.

(3) Where the criteria referred to in paragraphs (1) and (2) include requirements relating to the economic and financial capacity or the technical or professional abilities of the economic operator–

(a) the economic operator, or a group of economic operators as referred to in regulation 28 may rely on the capacity or abilities of other entities or members in the group, regardless of the legal nature of the link between the economic operator or the group of economic operators and the other entities; and

(b) the economic operator, or the group of economic operators shall prove to the utility that the resources necessary to perform the contract will be available to it, and such proof may in particular include an undertaking from those entities to that effect.

(4) Without prejudice to the generality of paragraph (2), the criteria may be based on the need of the utility to reduce the number of economic operators selected to tender for or to negotiate the contract to a level which is justified by the characteristics of the award procedure and the resources required to complete it.

(5) The utility shall take account of the need to ensure adequate competition in determining the number of economic operators selected to tender for or to negotiate the contract.

Consortia

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(1) In this regulation a “consortium” means two or more persons, at least one of whom is an economic operator, acting jointly for the purpose of being awarded a contract.

(2) Subject to paragraph (3), a utility shall not treat the tender of a consortium as ineligible nor decide not to include a consortium amongst those economic operators from which it will make the selection of economic operators to be invited to tender for or to negotiate a contract or be admitted to a dynamic purchasing system on the grounds that the consortium has not formed a legal entity for the purpose of tendering for or negotiating the contract or being admitted to a dynamic purchasing system.

(3) Where a utility awards a contract to a consortium it may, if to do so is justified for the satisfactory performance of the contract, require the consortium to form a legal entity before entering into, or as a term of, the contract.

(4) In these Regulations references to an economic operator where the economic operator is a consortium include a reference to each person who is a member of that consortium.

Corporations

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(1) A utility shall not treat the tender of a services provider as ineligible or decide not to include a services provider amongst those services providers from which it will make the selection of services providers to be invited to tender for or to negotiate a contract or to be admitted to a dynamic purchasing system on the ground that under the law of any part of the United Kingdom the services provider is required to be an individual, corporation or other type of body, if under the law of the relevant State in which the services provider is established, that services provider is authorised to provide such services.

(2) In the case of–

(a) a services contract;

(b) a works contract; or

a utility may require an economic operator which is not an individual to indicate in the tender, the indicative tender or in the request to be selected to tender for or to negotiate the contract, the names and relevant professional qualifications of the staff who will be responsible for the performance of the contract.

PART 5 — THE AWARD OF A CONTRACT

Criteria for the award of a contract

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(1) Subject to regulation 31 and paragraph (6) and (9) of this regulation, a utility shall award a contract on the basis of the offer which–

(a) is the most economically advantageous from the point of view of the utility; or

(b) offers the lowest price.

(2) A utility shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including delivery date or period for completion, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, environmental characteristics, technical merit, after sales service and technical assistance, commitments with regard to parts, security of supplies and price or otherwise.

(3) Where a utility intends to award a contract on the basis of the offer which is the most economically advantageous, it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents.

(4) When stating the weightings referred to in paragraph (3), a utility may give the weighting a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract.

(5) Where, in the opinion of the utility, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the utility shall indicate the criteria in descending order of importance in the contract notice or contract documents.

(6) If an offer for a contract is abnormally low, the utility may reject that offer but only if it has–

(a) requested in writing an explanation of the offer or of those parts which it considers contribute to the offer being abnormally low;

(b) taken account of any evidence provided in response to a request in writing; and

(7) Where a utility requests an explanation in accordance with paragraph (6), the information requested may in particular, include–

(a) the economics of the method of construction, the manufacturing process or services provided;

(b) the technical solutions suggested by the economic operator or the exceptionally favourable conditions available to the economic operator for the execution of the work or works, for the supply of goods or for the provision of the services;

(d) compliance with the provisions relating to employment protection and working conditions in force at the place where the contract is to be performed; or

(e) the possibility of the economic operator obtaining State aid.

(8) Where a utility establishes that a tender is abnormally low because the economic operator has obtained State aid, the offer may be rejected on that ground alone only after–

(a) consultation with the economic operator; and

(b) the economic operator is unable to prove within a reasonable time limit fixed by the utility, that the aid has been granted in a way which is compatible with the EC Treaty.

(9) Where a utility rejects an abnormally low offer in accordance with paragraph (8), it shall send a report justifying the rejection to the Minister for onwards transmission to the Commission.

(10) In this regulation “offer” includes a bid by one part of a utility to provide services, to carry out work or works or to make goods available to another part of the utility when the former part is invited by the latter part to compete with the offers sought from other persons.

Rejection of third country tenders – supply contracts

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(1) In this regulation–

“an offer of third country origin” means an offer to enter a supply contract under which more than 50% of the total value of the goods offered originate in States with which the Communities have not concluded, multilaterally or bilaterally, an agreement ensuring comparable and effective access for undertakings in member States to the markets of those States or in States to which the benefit of the provisions of the Utilities Directive has not been extended; and

“goods” includes software used in telecommunications network equipment.

(2) The origin of the goods shall be determined in accordance with Council Regulation (EC) No. 2913/92 of 12th October 1992 establishing the Community Customs Code .

(3) Notwithstanding regulation 30, a utility need not accept an offer of third country origin.

(4) Notwithstanding regulation 30, where an offer of third country origin is equivalent to an offer which is not of third country origin a utility shall not accept the offer of third country origin unless not to accept that offer would oblige the utility to acquire–

(a) goods having technical characteristics different from those of existing goods; or

(b) an installation resulting in incompatibility, technical difficulties in operation and maintenance or disproportionate costs.

(5) In the case of a supply contract to be awarded on the basis of the offer which offers the lowest price, offers are equivalent for the purposes of paragraph (4) if their prices are to be treated as equivalent in accordance with paragraph (7).

(6) In the case of a supply contract to be awarded on the basis of the offer which is the most economically advantageous to the utility, offers are equivalent for the purposes of paragraph (4) if–

(a) their prices are to be treated as equivalent in accordance with paragraph (7); and

(b) disregarding any difference in price the offer which is not of third country origin is at least as economically advantageous to the utility as the offer of third country origin.

(7) The prices of offers are to be treated as equivalent for the purposes of paragraphs (5) and (6) if the price of the offer which is not of third country origin is the same as or is not more than 3% greater than the offer of third country origin.

Contract award notices

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(1) Subject to paragraphs (2) and (3), a utility which has awarded a contract or concluded a framework agreement shall, not later than 2 months after the award or conclusion, send to the Official Journal a notice, in the form of the contract award notice in Annex VI to Commission Regulation (EC) No. 1564/2005 including the information therein specified.

(2) When sending the contract award notice to the Official Journal, a utility may indicate that information regarding–

(a) the number of tenders received;

(b) the identity of the economic operator; or

is of a sensitive commercial nature, and require that it not be published.

(3) A utility shall not be required to send a contract award notice in accordance with paragraph (1) where it awards a contract under a framework agreement.

(4) A utility which has awarded a contract under a dynamic purchasing system in accordance with regulation 19 may–

(a) send the contract award notice in accordance with paragraph (1); or

(b) retain any notice it is proposing to send to the Official Journal in accordance with paragraph (1) for a period of 3 months commencing on the date that the first notice was retained.

(5) Where a utility retains contract award notices in accordance with paragraph (4)(b), it shall send those contract award notices to the Official Journal not later than 48 days after the end of each period of 3 months.

(6) A utility which has awarded a Part B services contract shall state in the contract award notice whether or not it agrees to its publication.

(7) Where a utility has awarded a research and development services contract it may, if the contract was awarded without a call for competition in accordance with regulation 17(1)(b), insert in section II.1.4 of the form of contract award notice in Annex VI to Commission Regulation (EC) No. 1564/2005 only the title of the category of services.

(8) Where the services contract referred to in paragraph (7) was not awarded in accordance with regulation 17(1)(b), the utility may provide limited information at section II.1.4 of the form of contract award notice in Annex VI to Commission Regulation (EC) No. 1564/2005 if the information which would otherwise be given is of a commercially sensitive nature, provided that the information given is no less detailed than that already provided in either its call for competition in accordance with regulation 16(2), or where a qualification system is used, than that recorded in accordance with regulation 25(14).

Information about contract award procedures

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(1) Subject to paragraph (13) a utility shall as soon as possible after the decision has been made, inform any economic operator which submitted an offer or which applied to be included amongst the economic operators to be selected to tender for or to negotiate the contract, or applied to be a party to a framework agreement, of its decision in relation to–

(a) the award of the contract; or

(b) the conclusion of the framework agreement;

and shall do so by notice in writing by the most rapid means of communication practicable.

(2) The notice referred to in paragraph (1) shall include–

(a) the criteria for the award of the contract;

(b) where practicable, the score obtained by–

(i) the economic operator which is to receive the notice; and

(ii) the economic operator–

(aa) to be awarded the contract; or

(bb) to become a party to the framework agreement; and

(i) to be awarded the contract; or

(ii) to become a party to the framework agreement.

(3) A utility shall allow a period of at least 10 calendar days to elapse between the date of despatch of the notice under paragraph (1) and the date on which that utility proposes to enter into the contract or to conclude the framework agreement.

(4) Subject to paragraph (13) if by midnight at the end of the second working day of the period referred to in paragraph (3) a utility receives a request in writing, from an economic operator which was sent a notice under paragraph (1), for the reasons why that economic operator was unsuccessful, the utility shall inform that economic operator of the characteristics and relative advantages of the successful tender.

(5) A utility shall give the information set out in paragraph (4) at least 3 working days before the end of the period referred to in paragraph (3), or where that is not possible the period referred to in paragraph (3) shall be extended to allow at least 3 working days between the provision of the information set out in paragraph (4) and the date the utility proposes to enter into the contract or concludes the framework agreement.

(6) Where a utility is seeking offers without a call for competition in accordance with regulation 17(1)(d) and there is only one tender for the contract, that utility need not comply with paragraphs (1) to (5).

(7) Where a utility awards a contract under a framework agreement, that utility need not comply with paragraphs (1) to (5).

(8) Where a utility is seeking to establish a dynamic purchasing system in accordance with regulation 19 that utility need not comply with paragraphs (1) to (5) but, subject to paragraph (13), shall as soon as possible after a decision has been made, inform any economic operator which applied to be admitted to the dynamic purchasing system of its decision in relation to admittance to that system and shall do so in writing if requested by the economic operator.

(9) Except for a request made in accordance with paragraph (4) which shall be dealt with in accordance with paragraphs (4) to (5) and subject to paragraph (13), a utility shall within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful–

(a) inform that economic operator of the reasons why it was unsuccessful; and

(b) if the economic operator submitted an admissible tender, the utility shall inform that economic operator of the characteristics and relative advantages of the successful tender and–

(i) the name of the economic operator to be awarded the contract;

(ii) the names of the parties to the framework agreement; or

(iii) the names of the economic operators admitted to the dynamic purchasing system.

(10) The reasons referred to in paragraph (9)(a) shall include any reason for the utility's decision that the economic operator did not meet the technical specifications

(a) as specified in regulation 12(6) by an equivalent means; or

(b) in terms of the performance or functional requirements in regulation 12(7) by an equivalent means.

(11) Subject to paragraph (13) a utility shall as soon as possible after the decision has been made, inform any economic operator which submitted an offer, which applied to be included amongst the economic operators to be selected to tender for, to negotiate the contract or to be admitted to a dynamic purchasing system, of its decision to abandon or to recommence a contract award procedure in respect of which a contract notice has been published, in relation to–

(a) the award of a contract;

(b) the conclusion of a framework agreement; or

(12) A utility which informs an economic operator of its decision in accordance with paragraph (11) shall–

(a) include the reasons for the decision; and

(b) provide the decision and reasons in writing if requested by the economic operator.

(13) A utility may withhold any information to be provided in accordance with paragraph (1), (2), (4), (8), (9), (11) or (12) where the disclosure of such information

(a) would impede law enforcement;

(b) would otherwise be contrary to the public interest;

(d) might prejudice fair competition between economic operators.

PART 6 — SPECIALISED CONTRACTS

Design contests

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(1) A utility which organises a design contest–

(a) shall establish the rules for that design contest in accordance with the provisions of this regulation; and

(b) shall not limit the admission of any economic operator to the design contest by reference to the territory or part of the territory of a relevant State.

(2) This regulation applies to a design contest if it is organised as part of a procedure leading to the award of a services contract whose estimated value (net of value added tax and including the value of any prizes or payments) is not less than the relevant threshold described in paragraph (4).

(3) This regulation applies to a design contest whether or not it is organised as part of a procedure leading to the award of a services contract if–

(a) the contest is conducted for the purpose of carrying out an activity specified in any Part of Schedule 1 in which the utility is specified; and

(b) the aggregate value of the prizes or payments for the contest, including the estimated value (net of value added tax) of the contract which might subsequently be awarded in accordance with regulation 17(1)(l) provided that the utility does not exclude such an award in the contest notice, is not less than the relevant threshold described in paragraph (4)

(4) The relevant threshold for the purpose of paragraphs (2) and (3) is 422 000 euro.

(5) This regulation does not apply to a design contest–

(a) which is organised by the utility other than for the purpose of carrying out an activity specified in the Part of Schedule 1 in which the utility is specified;

(b) which is organised by the utility for the purpose of carrying out any activity outside the territory of the Communities but only if the carrying out of that activity does not involve the physical use of a network or geographical area within the Communities;

(c) which is classified as secret or where it must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom requires it;

(d) where different rules govern the procedures of the design contest and it is to be entered into in accordance with–

(i) an international agreement to which the United Kingdom and a State which is not a relevant State are parties and it relates to a design contest intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops; or

(iii) the design contest procedures of an organisation of which only States are members (an “international organisation”) or of which only States or international organisations are members; or

(e) organised by the utility for the purpose of carrying out an activity specified in column 2 of Schedule 1 where that activity is directly exposed to competition on markets to which access is unrestricted and this will be the case if one of the following conditions is satisfied–

(i) the Office of Government Commerce has notified the Commission in accordance with Article 30 of the Utilities Directive that the activity concerned is directly exposed to competition on markets to which access is not restricted and–

(aa) the Commission has adopted a decision that an exemption should apply in response to such a notification; or

(bb) the Commission has not adopted a decision in relation to such a notification within the time limits specified in Article 30(6) of the Utilities Directive;

(ii) the Commission has, on the application of the utility–

(aa) adopted a decision that an exemption should apply to the activity concerned; or

(bb) has not adopted such a decision within the time limit specified in Article 30 of the Utilities Directive; or

(iii) the Commission has, of its own initiative–

(aa) adopted a decision that an exemption should apply to the activity concerned and for the purposes of this sub-paragraph that time limit commences on the date that the Commission has informed the Office of Government Commerce in accordance with Article 30 that the matter is under consideration.

(6) The utility shall publicise its intention to hold a design contest by sending to the Official Journal a notice in the form of the design contest notice in Anne XII to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified.

(7) The utility shall make the rules of the design contest available to economic operators which wish to participate in the contest.

(8) Regulations 28(2) and 29 apply to design contests as they apply to the seeking of offers in relation to a proposed contract.

(9) Regulation 40(1)(b) to (7) applies to notices relating to design contests as it applies to notices in relation to a proposed contract.

(10) Regulation 42(1),(2) and (4) applies to all communications relating to design contests as it applies to a proposed contract.

(11) The utility shall ensure that the specified means of communication and the storage of information enables–

(a) the integrity and confidentiality of information provided by those economic operators participating in the design contest to be maintained; and

(b) the jury to ascertain the contents of proposals only after the time limit for their submission has expired.

(12) Where the utility requires that proposals are to be transmitted by electronic means, it shall ensure that–

(a) details of the equipment which is necessary for the electronic receipt of proposals, including encryption, are available to all economic operators which wish to participate in the design contest; and

(b) the equipment for the electronic receipt of proposals complies with the requirements of regulation 42(6).

(13) Where the utility restricts the number of economic operators in the design contest, it shall–

(a) establish clear and non-discriminatory criteria to select those economic operators; and

(b) ensure that the number of economic operators selected is sufficient to ensure adequate competition.

(14) The utility shall ensure that–

(a) the members of the jury are all individuals who are independent of those economic operators participating in the design contest;

(b) where the economic operators are required to possess a particular professional qualification, that at least one third of the members of the jury also possess that qualification or an equivalent qualification;

(c) the proposals of the economic operators are submitted to the jury without any indication as to the authorship of each proposal;

(d) the jury makes its decisions or opinions independently and solely on the basis of the criteria specified in the notice referred to in paragraph (6);

(e) the jury is not informed of the authorship of any proposal until after it has reached its decision or opinion;

(f) the jury prepares minutes signed by its members in which it records–

(i) its ranking of the proposals based upon its assessment of each proposal's merits; and

(ii) its observations or details of any issues upon which clarification is required in relation to each proposal; and

(g) the jury may invite the economic operators to answer any questions to clarify issues noted in the minutes referred to in sub paragraph (f) and shall record complete minutes of any such communications with economic operators.

(15) The utility shall, not later than 2 months after the date the jury makes its selection, publicise the results of the design contest by sending to the Official Journal a notice in the form of the notice of the results of a design contest in Annex XIII to Commission Regulation (EC) No. 1564/2005 and including the information therein specified.

(16) When sending the notice of the results of a design contest to the Official Journal in accordance with paragraph (15), the utility may indicate that information regarding–

(a) the number of proposals received;

(b) the identity of the economic operators; or

is of a sensitive commercial nature, and require that it not be published.

PART 7 — MATTERS RELATING TO A CONTRACT

Obligations relating to taxes, environmental protection, employment protection and working conditions

35

(1) A utility may include in the contract documents relating to a works contract or a services contract information as to where a contractor or services provider may obtain information about the obligations relating to taxes, environmental protection, employment protection and working conditions which will apply to–

(a) the work or works to be carried out under the works contract; or

(b) the services to be provided under the services contract.

(2) A utility which provides the information referred to in paragraph (1) shall request contractors or services providers to indicate that they have taken account of the obligations relating to employment protection provisions and those working conditions in preparing their tender or in negotiating the contract.

Conditions for performance of contracts

36

(1) A utility may stipulate conditions relating to the performance of a contract, provided that those conditions are compatible with Community law and are indicated in–

(a) the notice used as a means of calling for competition and in the contract documents; or

(b) the contract documents.

(2) The conditions referred to in paragraph (1) may, in particular, include social or environmental considerations.

PART 8 — MISCELLANEOUS

Preservation of records

37

(1) When these Regulations apply to the seeking of offers in relation to a contract, a utility shall keep appropriate information on each contract sufficient to justify decisions taken in connection with–

(a) the qualification and selection of economic operators and the award of contracts; and

(b) the use of a procedure without a prior call for competition by virtue of regulation 17.

(2) When a utility decides not to apply these Regulations to the seeking of offers in relation to a contract in accordance with regulation 6, 7, 8, 9 or 11, it shall keep appropriate information on such a contract sufficient to justify that decision.

(3) A utility shall take appropriate steps to document the progress of contract award procedures conducted by electronic means.

(4) The information referred to in paragraphs (1), (2) and (3) shall be preserved for at least 4 years from the date of the award of the contract.

Statistical and other reports

38

(1) A utility shall each year, by the date notified to it by the Minister, send to the Minister a report specifying

(a) the aggregate value (estimated if necessary) of the consideration payable under contracts awarded in the previous year which have been excluded from the operation of these Regulations by regulation 11 for the purpose of carrying out the activities in each Part of Schedule 1 in which the utility is specified; and

(b) the type of activities for which those contracts were awarded.

(2) A utility when requested shall for the purpose of informing the Commission send to the Minister a report–

(a) containing such information as the Minister may from time to time require in respect of a particular contract (including contracts excluded or exempted from the application of all or some of these Regulations by regulation 6, 7, 8, 9 or 11);

(b) specifying which of its activities it considers are not activities specified in the Part of Schedule 1 in which the utility is specified, or are activities outside the territory of the Communities not involving the physical use of a network or geographical area within the Communities; and

(c) specifying the categories of goods, work, works or services it considers comprise the goods, work, works or services which it acquires in order to sell, hire or provide them to another person, but which it does not have a special or exclusive right to sell, hire or provide and which other persons are free to sell, hire or provide under the same conditions.

(3) Subject to paragraph (4), a utility specified in Parts A to F, O, P, R or S of Schedule 1 shall, not later than 31st July in each year, send to the Minister a report specifying in relation to each contract awarded by it in the previous year (including contracts excluded or exempted from the application of some or all of these Regulations by regulation 6, 7, 8, 9 or 11)–

(a) the value (estimated if necessary) of the consideration payable under the contract;

(b) the principal category of works or services carried out or to be carried out under the contract according to the nomenclature used in Schedule 2 or 3 or the type of goods purchased or hired under the contract; and

(c) the nationality of the economic operator to which the contract was awarded and the relevant State in which that economic operator is established.

(4) The report referred to in paragraph (3) need not include information concerning contracts for–

(a) research and development services specified in category 8 of Part A of Schedule 3;

(b) telecommunications services specified under CPV references 64200000-8 to 64228200-2, 72318000-7, and from 72530000-9 to 72532000-3 within category 5 of Part A of Schedule 3; or

(5) A utility may indicate that any of the information in a report sent to the Minister in accordance with paragraph (2)(c) is of a sensitive commercial nature, and require that it not be published.

Provision of reports

39

(1) Any reference to the Minister in these Regulations shall be deemed to be a reference to the Minister responsible for that utility.

(2) The Minister responsible for a utility shall be in relation to Scotland the Scottish Ministers or the Minister of the Crown whose areas of responsibility are most closely connected with the functions of the utility.

(3) Any question as to which Minister of the Crown's areas of responsibility are most closely connected with the functions of a utility shall be determined by the Office of Government Commerce whose determination shall be final.

(4) The requirement on a utility to send any report in accordance with regulation 7(7), 8(3)(b)(ii)(aa), 30(9) or 38 to the Minister shall be enforceable, on the application of the Minister responsible to the High Court, by mandatory order, or on the application of the Scottish Ministers to the Court of Session, by specific implement.

(5) The Minister to whom a report is sent in accordance with regulation 7(7), 8(3)(b)(ii)(aa), 30(9) or 38 shall send the report to the Office of Government Commerce for onward transmission to the Commission.

Publication of notices

40

(1) Any notice required by these Regulations to be sent to the Official Journal shall be–

(a) in the correct format and contain the necessary information specified by Commission Regulation EC (No. 1564/2005) and contain any other information which the utility considers useful; and

(b) sent to the Office for Official Publications of the European Union by electronic means in the format and in accordance with the procedures specified in paragraph (3) of Annex XX to the Utilities Directive or by other means.

(2) Where a notice is not sent by electronic means in accordance with paragraph (1)(b), the utility may in exceptional cases request the Official Journal to publish a contract notice within 5 days of the date of despatch, provided that the notice is sent to the Official Journal by facsimile.

(3) The utility shall not place a notice in any publication–

(a) before the date on which the notice is despatched in accordance with paragraph (1)(b); or

(b) which contains any additional information to that contained in the notice despatched in accordance with paragraph (1)(b) or published on the utility's buyer profile in accordance with regulation 15.

(4) The utility shall refer in the notice to the date of despatch of that notice to the Official Journal or the date of its publication on its buyer profile where it publishes a notice in the circumstances referred to in paragraph (3).

(5) A utility shall not publish a periodic indicative notice on its buyer profile before the date on which notice of its publication in that form is despatched to the Commission in accordance with regulation 15(3) and the utility shall refer to the date of that despatch on its buyer profile.

(6) A utility shall retain evidence of the date of despatch to the Official Journal of each notice.

(7) When a utility is not required to publish a contract notice in respect of a particular contract, it may nevertheless publish such a notice in accordance with the provisions of this regulation.

Confidentiality of information

41

(1) A utility which makes information available to an economic operator in accordance with these Regulations may impose requirements on that operator for the purpose of protecting the confidentiality of that information.

(2) Subject to the provisions of these Regulations, the utility shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.

(3) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders.

Means of communication

42

(1) A utility may specify that any communications referred to in these Regulations may be made–

(a) by post;

(b) by facsimile;

(d) by telephone in the circumstances referred to in paragraph (8); or

(e) by a combination of the means of communication.

(2) The means of communication specified by a utility shall be generally available and shall not restrict economic operators' access to the contract award procedures specified in these Regulations.

(3) A utility shall ensure that the specified means of communication and the storage of information enables–

(a) the integrity of data provided by economic operators and the confidentiality of tenders and requests to be selected to tender for or to negotiate the contract to be maintained; and

(b) tenders and requests to be selected to tender for or to negotiate the contract to be opened only after the time limit for their submission has expired.

(4) The equipment used for communications made by electronic means shall be–

(a) non-discriminatory;

(b) generally available; and

(5) Where a utility requires that tenders and requests to be selected to tender for or to negotiate the contract are to be received by electronic means, it shall ensure that–

(a) details of the equipment including any software which is necessary for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract, including encryption, are available to all interested economic operators; and

(b) the equipment for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract complies with the requirements of paragraph (6).

(6) The requirements referred to in paragraph (5)(b) are–

(a) electronic signatures relating to tenders and requests to participate comply with national provisions adopted in accordance with Directive 1999/93/EC of the European Parliament and of the Council of 13th December 1999 on a Community framework for electronic signatures ;

(b) the exact time and date of the receipt of tenders and requests to participate are capable of being determined precisely;

(i) data is not capable of being accessed before the time limits specified by the utility; and

(ii) any such unauthorised access is clearly detectable;

(d) only authorised persons shall set or change the dates for opening data received from economic operators;

(e) access to any data is possible only through simultaneous action by authorised persons and only after the prescribed date; and

(f) data received and opened in accordance with these requirements must remain accessible only to authorised persons.

(7) A utility may require any documents, certificates and declarations referred to in regulations 24(2), (3), 25, 26 and 27 which do not exist in electronic format to be submitted before the time limit has expired for the receipt by it of tenders or requests to be selected to tender for or to negotiate the contract.

(8) Requests to be selected to tender for or to negotiate the contract may be made–

(a) in writing; or

(b) by telephone.

(9) Where a request to be selected to tender for or to negotiate the contract is made by telephone, an economic operator shall confirm the request in writing before the deadline for receipt of such requests has expired.

(10) Where a request to be selected to tender for or to negotiate the contract is made by facsimile, a utility–

(a) may require that the request be confirmed by post or by electronic means where this is necessary for the purposes of legal proof; and

(b) shall specify any requirement for such confirmation and the time limit for sending it in the notice used as a means of calling for competition or in the invitation referred to in regulation 16(3)(b).

Sub contracting

43

A utility may require an economic operator to indicate in its tender–

(a) any part of the contract that the economic operator intends to sub contract to another person; and

(b) the identity of any person to whom that economic operator proposes to sub contract any part of the contract.

Attestation

44

(1) A utility which has recourse to an attestation system and obtains an attestation in accordance with Articles 4 and 5 of the Utilities Remedies Directive from an independent person or body accredited in a relevant State for the purpose of attestation in accordance with Article 6 of that Directive may include the following statement in a notice sent to the Official Journal for publication in accordance with regulations 15, 16(2)(b), 25(17) and 32(1)–

The contracting entity has obtained an attestation in accordance with Council Directive 92/13/EC that, on...................., its contract award procedures and practices were in conformity with Community law and the national rules implementing that law.

(2) An attestation system established in a relevant State in accordance with the European Attestation Standard is presumed to be in accordance with Articles 4 to 6 of the Utilities Remedies Directive.

PART 9 — APPLICATIONS TO THE COURT

Enforcement of obligations

45

(1) The obligation on a utility to comply with the provisions of these Regulations other than regulations 30(9) and 38, and with any enforceable Community obligation in respect of a contract or design contest (other than one excluded from the application of these Regulations by regulation 6, 7, 8, 9 or 34) is a duty owed to an economic operator.

(2) The duty owed to an economic operator in accordance with paragraph (1), except in relation to–

(a) a Part B services contract; and

(b) a contract for research and development services specified in category 8 of Part A of Schedule 3;

is a duty owed also to a GPA economic operator.

(3) References to an “economic operator” in paragraphs (4), (5), (8) and (9) shall be construed as including a reference to a GPA economic operator.

(4) A breach of the duty owed in accordance with paragraph (1) or (2) is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the Sheriff Court, the Court of Session or in England and Wales and Northern Ireland, the High Court.

(5) Proceedings under this regulation may not be brought unless–

(a) the economic operator bringing the proceedings has informed the utility of the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2) by that utility and of its intention to bring proceedings under this regulation in respect of it; and

(b) those proceedings are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.

(6) Subject to paragraph (7), but otherwise without prejudice to any other powers of the court in proceedings brought under this regulation, the Court may–

(a) by interim order suspend the procedure leading to the award of the contract or the procedure leading to the determination of a design contest in relation to the award of the contract of which the breach of the duty owed in accordance with paragraphs (1) or (2) is alleged, or suspend the implementation of any decision or action taken by the utility in the course of following such a procedure; and

(b) if satisfied that a decision or action taken by a utility was in breach of the duty owed in accordance with paragraphs (1) or (2)–

(i) order the setting aside of that decision or action or order the utility to amend any document;

(ii) award damages to an economic operator which has suffered loss or damage as a consequence of the breach; or

(iii) do both of those things.

(7) In proceedings under this regulation the Court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraphs (1) or (2)if the contract in relation to which the breach occurred has been entered into.

(8) Where, in proceedings under this regulation, the Court is satisfied that an economic operator would have had a real chance of being awarded a contract or winning a design contest if that chance had not been adversely affected by a breach of the duty owed to it by the utility in accordance with paragraphs (1) or (2) the economic operator shall be entitled to damages amounting to its costs in preparing its tender and in participating in the procedure leading to the award of the contract or its costs of participating in the procedure leading to the determination of the design contest.

(9) Paragraph (8) does not affect a claim by an economic operator that it has suffered other loss or damage or that it is entitled to relief other than damages and is without prejudice to the matters on which an economic operator may be required to satisfy the Court in respect of any other such claim.

(10) Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947 , in proceedings brought under this regulation against the Crown the court shall have power to grant an interim order.

(11) In this regulation–

“GPA economic operator” means a person from a GPA State who sought, who seeks, or would have wished, to be the person to whom the contract is awarded;

“GPA State” means any country other than a relevant State which at the relevant time is a signatory to the GPA and has agreed with the European Community that the GPA shall apply to a contract of the type to be awarded ; and

“relevant time” means–if the utility selects economic operators to tender for or to negotiate the contract in accordance with a qualification system established in accordance with regulation 25, the date on which the selection commences;if the utility satisfies the requirement that there be a call for competition by indicating the intention to award the contract in a periodic indicative notice in accordance with regulation 16(2)(a)(i), the date on which the notice is sent to the Official Journal; orin any other case, the date on which a contract notice or design contest notice would be sent to the Official Journal if the requirement that there be a call for competition applied and the utility decided to satisfy that requirement by sending such a notice.

Conciliation

46

(1) An economic operator which considers that–

(a) a utility has breached or may breach the duty referred to in regulation 45(1) and (2); and

(b) in consequence that economic operator has suffered, or risks suffering, loss or damage;

and which wishes to use the conciliation procedure provided for in Articles 10 and 11 of the Utilities Remedies Directive shall send a request for the application of the procedure to the Minister for onward transmission as soon as possible to the Commission.

(2) Neither the request for nor any action taken in accordance with the conciliation procedure referred to in paragraph (1) shall affect the rights or liabilities of–

(a) the economic operator requesting it;

(b) the utility in respect of which the request is made; or

PART 10 — REVOCATION, SAVINGS AND TRANSITIONAL PROVISIONS

Revocation

47

(1) This regulation revokes the Utilities Contracts Regulations 1996 and the Utilities Contracts (Amendment) Regulations 2001 .

Savings and transitional provisions

48

(1) Where a utility has commenced a contract award procedure or a design contest before 31st January 2006, the Regulations specified in regulation 47 shall continue to have effect on and after 31st January 2006 in relation to that contract award procedure or design contest, as if those Regulations had not been revoked in accordance with regulation 47.

(2) A utility has commenced a contract award procedure or design contest as referred to in paragraph (1) where before 31st January 2006, in relation to that procedure–

(a) that utility has sent a contract notice to the Official Journal in order to invite tenders, requests to be selected to tender for or to negotiate in respect of a proposed contract;

(b) in any case where there is no requirement to send a contract notice to the Official Journal in accordance with the Regulations referred to in regulation 47, that utility has despatched any form of advertisement seeking offers or expressions of interest in a proposed contract; or

(c) where there is no advertising as referred to in sub paragraph (a) or (b), that utility has contacted any economic operator in order to seek expressions of interest or offers in respect of a proposed contract; or

(d) that utility has sent a notice to the Official Journal in accordance with the Regulations referred to in regulation 47 in order to publicise its intention to hold a design contest.

(3) Where a framework agreement has been concluded before 31st January 2006, these Regulations do not apply to the award of any specific contract under that framework agreement.

(4) “Contract notice” in this regulation means a contract notice within the meaning of the Utilities Contracts Regulations 1996.

SCHEDULE 1 — UTILITIES

1

The provision or operation of a fixed network which provides or will provide a service to the public in connection with the production, transport or distribution of drinking water.

2

Hydraulic engineering, irrigation or land drainage, but only if more than 20% of the total volume of water made available by such activity is intended for the supply of drinking water.

3

The disposal or treatment of sewage.

4

The supply of drinking water to a network referred to in paragraph 1.

5

The supply of drinking water to a network referred to in paragraph 1 but only if the drinking water supplied in the period of 36 months ending at the relevant time as defined in regulation 11(19) has exceeded 30% of the total produced by the utility in that period.

6

The provision or operation of a fixed network which provides or will provide a service to the public in connection with the production, transport or distribution of electricity.

7

The supply of electricity to a network referred to in paragraph 6.

8

The supply of electricity to a network referred to in paragraph 6 but only if the electricity supplied in the period of 36 months ending at the relevant time as defined in regulation 11(19) has exceeded 30% of the total produced by the utility in that period.

9

The provision or operation of a fixed network which provides or will provide a service to the public in connection with the production, transport or distribution of gas.

10

The supply of gas to a network referred to in paragraph 9.

11

The supply of gas to a network referred to in paragraph 9 but only if the total consideration payable in the period of 36 months ending at the relevant time as defined in regulation 11(19) on account of such supply has exceeded 20% of the total turnover of the utility in that period.

12

The provision or operation of a fixed network which provides or will provide a service to the public in connection with the production, transport or distribution of heat.

13

The supply of heat to a network referred to in paragraph 12.

14

The supply of heat to a network referred to in paragraph 12 but only if the total consideration payable in the 36 months ending at the relevant time as defined in regulation 11(19) on account of such supply has exceeded 20% of the total turnover of the utility in that period.

15

The exploitation of a geographical area for the purpose of exploring for or extracting oil or gas.

16

The exploitation of a geographical area for the purposes of exploring for or extracting coal or other solid fuel.

17

The exploitation of a geographical area for the purpose of providing airport or other terminal facilities to carriers by air.

18

The exploitation of a geographical area for the purpose of providing maritime or inland port or other terminal facilities to carriers by sea or inland waterway.

19

The provision or operation of a network providing a service to the public in the field of transport by railway.

20

The provision or operation of a network providing a service to the public in the field of transport by automated systems, tramway, trolleybus, or cable.

21

The provision or operation of a network providing a service to the public in the field of transport by bus.

SCHEDULE 2 — ACTIVITIES CONSTITUTING WORKS

Section F	Section F	Section F	Section F	Construction	Construction
Division	Group	Class	Subject	Notes	CPV Code
45			Construction	Construction of new buildings and works, restoring and common repairs	45000000
	45.1		Site preparation		45100000
		45.11	Demolition and wrecking of buildings; earth moving	Demolition of buildings and other structures Clearing of building sites Earth moving; excavation, landfill, levelling and grading of construction sites, trench digging, rock removal, blasting, etc. Site preparation for mining: overburden removal and other development and preparation of mineral properties and sites Building site drainage Drainage of agricultural or forestry land	45110000
		45.12	Test drilling and boring	Test drilling, test boring and core sampling for construction, geophysical, geological or similar purposes	45120000
	45.2		Building of complete constructions or parts thereof; civil engineering		45200000
		45.21	General construction of buildings and civil engineering works	Construction of all types of buildings Construction of civil engineering constructions Bridges, including those for elevated highways, viaducts, tunnels and subways Long-distance pipelines, communication and power lines Urban pipelines, urban communication and power lines Ancillary urban works Assembly and erection of prefabricated constructions on the site	45210000
		45.22	Erection of roof covering and frames	Erection of roofs Roof covering Waterproofing	45220000
		45.23	Construction of highways, roads, airfields and sport facilities	Construction of highways, streets, roads, other vehicular and pedestrian ways Construction of railways Construction of airfield runways Construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations Painting of markings on road surfaces and car parks	45230000
		45.24	Construction of water projects	Construction of: waterways, harbour and river works, pleasure ports (marinas), locks, etc. dams and dykes dredging subsurface work	45240000
		45.25	Other construction work involving special trades	Construction activities specialising in one aspect common to different kinds of structures, requiring specialised skill or equipment Construction of foundations, including pile driving Water well drilling and construction, shaft sinking Erection of non-self-manufactured steel elements Steel bending Bricklaying and stone setting Scaffolds and work platform erecting and dismantling, including renting of scaffolds and work platforms; Erection of chimneys and industrial ovens	45250000
	45.3		Building installation		45300000
		45.31	Installation of electrical wiring and fittings	Installation in buildings or other construction projects of: electrical wiring and fittings telecommunications systems electrical heating systems residential antennas and aerials fire alarms burglar alarm systems lifts and escalators lightning conductors, etc.	45310000
		45.32	Insulation work activities	Installation in buildings or other construction projects of thermal, sound or vibration insulation	45320000
		45.33	Plumbing	Installation in buildings or other construction projects of: plumbing and sanitary equipment gas fittings heating, ventilation, refrigeration or air conditioning equipment and ducts sprinkler systems	45330000
		45.34	Other building installation	Installation of illumination and signalling systems for roads, railways, airports and harbours Installation in buildings or other construction projects of fittings and fixtures n.e.c.	45340000
	45.4		Building completion		45400000
		45.41	Plastering	Application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials	45410000
		45.42	Joinery installation	Installation of non self-manufactured doors, windows, door and window frames, fitted kitchens, staircases, shop fittings and the like, of wood or other materials Interior completion such as ceilings, wooden wall coverings, movable partitions, etc.	45420000
		45.43	Floor and wall covering	Laying, tiling, hanging or fitting in buildings or other construction projects of: ceramic, concrete or cut stone wall or floor tiles parquet and other wood floor coverings carpets and linoleum floor coverings, including of rubber or plastic terrazzo, marble, granite or slate floor or wall coverings wallpaper	45430000
		45.44	Painting and glazing	Interior and exterior painting of buildings Painting of civil engineering structures Installation of glass, mirrors etc	45440000
		45.45	Other building completion	Installation of private swimming pools steam cleaning, sand blasting and similar activities for building exteriors Other building completion and finishing work n.e.c.	45450000
	45.5		Renting of construction or demolition equipment with operator		45500000
		45.50	Renting of construction or demolition equipment with operator		45500000

SCHEDULE 3 — CATEGORIES OF SERVICES

Part A

Category	Services	CPC Reference No.	CPV Code
1.	Maintenance and repair of vehicles and equipment	6112, 6122, 633, 886	from 50100000 to 50982000 (except for 50310000 to 50324200 and 50116510-9, 50190000-3, 50229000-6, 50243000-0)
2.	Transport by land, including armoured car services and courier services but not including transport of mail and transport by rail	712 (except 71235), 7512, 87304	from 60112000-6 to 60129300-1 (except 60121000 to 60121600, 60122200-1, 60122230-0), and from 64120000-3 to 64121200-2
3.	Transport by air but not transport of mail	73 (except 7321)	from 62100000-3 to 62300000-5 (except 62121000-6, 62221000-7)
4.	Transport of mail by land, other than by rail, and by air	71235, 7321	60122200-1, 60122230-0 62121000-6, 62221000-7
5.	Telecommunications services	752	from 64200000-8 to 64228200-2, 72318000-7, and from 72530000-9 to 72532000-3
6.	Financial services: Insurance services Banking and investment services other than financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments and central bank services	Ex 81, 812, 814	from 66100000-1 to 66430000-3 and from 67110000-1 to 67262000-1
7.	Computer and related services	84	from 50300000-8 to 50324200-4, from 72100000-6 to 72591000-4 (except 72318000-7 and from 72530000-9 to 72532000-3)
8.	Research and development services where the benefits accrue exclusively to the utility for its use in the conduct of its own affairs and the services are to be wholly paid for by the utility	85	from 73000000-2 to 73300000-5 (except 73200000-4, 73210000-7, 7322000-0)
9.	Accounting, auditing and book-keeping services	862	from 74121000-3 to 74121250-0
10.	Market research and public opinion polling services	864	from 74130000-9 to 74133000-0, and 74423100-1, 74423110-4
11.	Management consultancy services and related services, but not arbitration and conciliation services	865, 866	from 73200000-4 to 73220000-0, from 74140000-2 to 74150000-5 (except 74142200-8), and 74420000-9, 74421000-6, 74423000-0, 74423200-2, 74423210-5, 74871000-5, 93620000-0
12.	Architectural services: engineering services and integrated engineering services: urban planning and landscape architectural services: related scientific and technical consulting services: technical testing and analysis services	867	from 74200000-1 to 74276400-8, and from 74310000-5 to 74323100-0, and 74874000-6
13.	Advertising services	871	from 74400000-3 to 74422000-3 (except 74420000-9 and 74421000-6)
14.	Building-cleaning services and property management services	874, 82201 to 82206	from 70300000-4 to 70340000-6, and 74710000-9 to 74760000-4
15.	Publishing and printing services on a fee or contract basis	88442	from 78000000-7 to 78400000-1
16.	Sewage and refuse disposal service: sanitation and similar services	94	from 90100000-8 to 90320000-6, and 50190000-3, 50229000-6, 50243000-0

Part B

Category	Services	CPC Reference No.	CPV Code
17.	Hotel and restaurant services	64	from 55000000-0 to 55524000-9, and from 93400000-2 to 93411000-2
18.	Transport by rail	711	60111000-9, and from 60121000-2 to 60121600-8
19.	Transport by water	72	from 61000000-5 to 61530000-9, and from 63370000-3 to 63372000-7
20.	Supporting and auxiliary transport services	74	62400000-6, 62440000-8, 62441000-5, 62450000-1, from 63000000-9 to 63600000-5 (except 63370000-3, 63371000-0, 63372000-7), and 74322000-2, 93610000-7
21.	Legal services	861	from 74110000-3 to 74114000-1
22.	Personnel placement and supply services	872	from 74500000-4 to 74540000-6 (except 74511000-4), and from 95000000-2 to 95140000-5
23.	Investigation and security services, other than armoured car services	873 (except 87304)	from 74600000-5 to 74620000-1
24.	Education and vocational education services	92	from 80100000-5 to 80430000-7
25.	Health and social services	93	74511000-4, and from 85000000-9 to 85323000-9 (except 85321000-5 and 85322000-2)
26.	Recreational, cultural and sporting services	96	from 74875000-3 to 74875200-5, and from 92000000-1 to 92622000-7 (except 92230000-2)
27.	Other services

SCHEDULE 4 — EXTENSION TO NON MEMBER STATES

1

Bulgaria

2

Iceland

3

Liechtenstein

4

Norway

5

Romania

Signed

TOM McCABE — A member of the Scottish Executive — 4th January 2006

Explanatory note

(This note is not part of the Regulations)

Footnotes

[^f00001]: 1972 c. 68. Section 2(2) was amended by Schedule 8 paragraph 15 of the Scotland Act 1998 (c. 46), Schedule 8, paragraph 15(3). The function conferred upon the Minister of the Crown under section 2(2) of the European Communities Act 1972, insofar as within devolved competence, was transferred to the Scottish ministers by virtue of section 53 of the Scotland Act 1998.

[^f00002]: O.J. L 257, 1.10.05, p.1. The standard forms set out in the Annex to this Regulation are available at www.simap.eu.int.

[^f00003]: O.J. L 340, 16.12.02, p.1. These Regulations were amended by Commission Regulation (EC) No. 2151/2003 of 16th December 2003 O.J. L 329, 17.12.03, p.1.

[^f00004]: S.S.I. 2006/1.

[^f00005]: CPC (provisional version). Further information may be obtained from the United Nations website http://unstats.un.org.

[^f00006]: 1995 c. 50. Sections 2 and 3 were amended by sections 18 and 19 of, and Schedule 1 to the Disability Discrimination Act 2005 (c. 13). There are other amendments to this Act which are not relevant to these Regulations.

[^f00007]: Cm 2575. As at 1st January 2000, parties to the Government Procurement Agreement other than Member States were Aruba, Canada, Hong Kong Special Administrative Region, Iceland, Israel, Japan, Republic of Korea, Liechtenstein, Norway, Singapore, Switzerland and the United States of America.

[^f00008]: The address of the Office of Government Commerce is Trevelyan House, 26-30 Great Peter Street, London SW1P 2BY.

[^f00009]: O.J. L 134, 30.4.04, p.114.

[^f00010]: O.J. L 134, 30.4.04, p.1.

[^f00011]: O.J. No L 76, 23.3.92, p.14.

[^f00012]: 1971 c. 80. There are amendments to this Act which are not relevant to these Regulations.

[^f00013]: 1994 c. 39. There are amendments to this Act which are not relevant to these Regulations.

[^f00014]: 1972 c. 9 (N.I.).

[^f00015]: 1972 c. 68.

[^f00016]: O.J. No. L 193, 18.7.83, p.1.

[^f00017]: O.J. No. L 178, 17.7.03, p.16.

[^f00018]: O.J. No. L 156, 13.6.97, p.55.

[^f00019]: The Classification of Products by activity is the official product classification by activity which is used by the European Union for statistical purposes.

[^f00020]: The format and procedures for sending notices by electronic means are accessible at http://simpa.eu.int.

[^f00021]: The Community Eco Management and Audit Scheme (EMAS) is a management tool for companies and other organisations to evaluate, report and improve their environmental performance; for more information, see www.europa.eu.int/comm/environment/emas/index-en.htm.

[^f00022]: O.J. No. L 351, 29.12.98, p.1.

[^f00023]: 1889 c. 69.

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