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The Utilities Contracts (Scotland) Regulations 2016

Type Scottish-Statutory-Instrument

Publication 2016-01-26

Last updated 2026-01-01

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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(a) which has provided rules and criteria for the exclusion of tenderers or candidates in accordance with regulations 76(1) (criteria for qualitative selection) or 78 (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations), must exclude economic operators identified in accordance with such rules and fulfilling such criteria;

(b) must select tenderers and candidates in accordance with the objective rules and criteria mentioned in regulations 76 (criteria for qualitative selection) and 78 (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations);

(c) must, where appropriate and in accordance with regulation 76(2) and (3) (criteria for qualitative selection), reduce the number of candidates selected in accordance with sub-paragraphs (a) and (b) in—

(i) restricted procedures;

(ii) negotiated procedures with a call for competition;

(iii) competitive dialogues; and

(iv) innovation partnerships.

(2) When a call for competition is made by means of a notice on the existence of a qualification system and for the purpose of selecting participants in a procurement for the specific contracts which are the subject of the call for competition, a utility must—

(a) qualify economic operators in accordance with regulation 75 (qualification systems);

(b) apply to such qualified economic operators those provisions of paragraph (1) that are relevant to restricted or negotiated procedures, to competitive dialogues or to innovation partnerships.

(3) When selecting participants for a restricted or negotiated procedure, a competitive dialogue or an innovation partnership, in reaching its decision as to qualification or when the criteria and rules are being updated, a utility must not—

(a) impose administrative, technical or financial conditions on certain economic operators which would not be imposed on others;

(b) require tests or evidence which would duplicate objective evidence already available.

(4) Where information or documentation to be submitted by an economic operator is or appears to be incomplete or erroneous, or where specific documents are missing, a utility may request the economic operator concerned to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit, provided that such requests are made in full compliance with the principles of equal treatment and transparency.

(5) A utility must verify that the tenders submitted by the selected tenderers comply with the rules and requirements applicable to tenders and award the contract on the basis of the criteria laid down in regulations 80 (contract award criteria) and 82 (abnormally low tenders), taking into account regulation 62 (variants).

(6) A utility may decide not to award a contract to, or conclude a framework agreement with, the tenderer submitting the most economically advantageous tender where the utility has established that the tender does not comply with applicable obligations in the fields of environmental, social and employment law established by ... national law, collective agreements or , subject to paragraphs (6A) and (6B), by the international environmental, social and employment law provisions listed in Annex XIV to the Utilities Contracts Directive as amended from time to time.

(6A) Where—

(a) the United Kingdom has ratified an international agreement establishing obligations in any of the fields mentioned in paragraph (6), and

(b) the agreement is not already listed,

the Scottish Ministers may make regulations providing that paragraph (6) is to have effect as if the agreement were listed.

(6B) Where the United Kingdom has ceased to ratify an international agreement that is already listed, the Scottish Ministers may make regulations providing that paragraph (6) is to have effect as if the agreement were not listed.

(6C) In paragraphs (6A) and (6B)—

(a) “listed” means listed as described in paragraph (6), and

(b) where paragraph (6) already has effect as if an agreement were listed, “already listed” includes that agreement.

(7) In open procedures, a utility may decide to examine tenders before verifying the suitability of tenderers, provided that the relevant provisions of regulations 74 to 82 are observed.

Qualification systems

75

(1) A utility may establish and operate a system of qualification of economic operators.

(2) A utility which establishes or operates a system of qualification must ensure that economic operators are at all times able to request qualification.

(3) The system under paragraph (1) may involve different qualification stages.

(4) A utility must establish objective rules and criteria for—

(a) the exclusion and selection of economic operators requesting qualification; and

(b) the operation of the qualification system, covering matters such as—

(i) inscription in the system;

(ii) periodic updating of the qualifications, if any; and

(iii) the duration of the system.

(5) Where the rules and criteria referred to in paragraph (4) include technical specifications, regulations 58 to 60 apply.

(6) The rules and criteria referred to in paragraph (4)—

(a) must be made available to economic operators upon request; and

(b) may be updated as required and, if so, must be communicated to interested economic operators.

(7) Where a utility considers that the qualification system of certain other entities or other bodies meets its requirements, it must communicate the names of those entities and bodies to interested economic operators.

(8) A utility must keep a written record of qualified economic operators, which may be divided into categories according to type of contract for which the qualification is valid.

(9) When a call for competition is made by means of a notice on the existence of a qualification system, specific contracts for the works, supplies or services covered by the qualification system must be awarded by restricted or negotiated procedure, competitive dialogue or innovation partnership as modified so that all tenderers and participants are selected among the candidates already qualified in accordance with such a system without being required to submit further information for qualitative selection or to submit a request to participate.

(10) Any charges that are billed to an economic operator by a utility in connection with requests for qualification or with updating or conserving an already obtained qualification in accordance with the system must be proportionate to the generated costs.

Criteria for qualitative selection

76

(1) A utility—

(a) may establish objective rules and criteria for the exclusion and selection of tenderers or candidates; and

(b) if so, must make those rules and criteria available to interested economic operators.

(2) Subject to paragraph (3), where a utility needs to ensure an appropriate balance between the particular characteristics of the procurement and the resources required to conduct it, it may, in restricted procedures, negotiated procedures, competitive dialogues or innovation partnerships, establish objective rules and criteria that reflect that need and enable the utility to reduce the number of candidates that will be invited to tender or to negotiate.

(3) A utility must take account of the need to ensure adequate competition when selecting the number of candidates.

Reliance on the capacities of other entities

77

(1) This regulation applies where there are objective rules and criteria for the exclusion and selection of—

(a) economic operators requesting qualification in a qualification system; or

(b) candidates and tenderers in open, restricted or negotiated procedures, competitive dialogues or innovation partnerships.

(2) Where the objective rules and criteria for the exclusion and selection of those referred to in paragraph (1) include requirements relating to the economic operator’s economic and financial capacity or technical and professional abilities, an economic operator may, where necessary rely upon the capacities of other entities, regardless of the legal nature of the links which it has with them.

(3) With regard to criteria relating to the educational and professional qualifications of the service provider or contractor or those of the undertaking’s managerial staff or to relevant professional experience, economic operators may only rely upon the capacities of other entities where the latter will perform the works or services for which these capacities are required.

(4) Where an economic operator wants to rely upon the capacities of other entities, it must prove to the utility that the necessary resources will be available to it, for example by producing a commitment by those entities to that effect.

(5) For the purposes of paragraph (4), an economic operator requesting qualification in a qualification system must prove that the necessary resources will be available to it throughout the period of the qualification system.

(6) Where, in accordance with regulation 78 (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations), a utility has referred to exclusion or selection criteria provided for under the Public Contracts (Scotland) Regulations, the utility must verify, in accordance with the provisions applied by regulation 78(4)—

(a) whether the other entities upon whose capacity the economic operator intends to rely fulfil the relevant selection criteria; or

(b) whether there are grounds for exclusion, to which the utility has referred, under regulation 58 of the Public Contracts (Scotland) Regulations.

(7) The utility—

(a) must require the economic operator to replace an entity which does not meet a relevant selection criterion or in respect of which there are compulsory grounds for exclusion; and

(b) may require the economic operator to substitute an entity in respect of which there are non-compulsory grounds for exclusion.

(8) Where an economic operator relies upon the capacities of other entities with regard to criteria relating to economic and financial standing, the utility may require the economic operator and those entities to be jointly liable for the performance of the contract.

(9) A group of economic operators as referred to in regulation 35(4) (economic operators) may rely upon the capacities of participants in the group or of other entities, and paragraphs (1) to (8) apply in relation to such a group in the same way that they apply in relation to an economic operator.

(10) In the case of works contracts, supply contracts requiring siting or installation work and service contracts, a utility may require certain critical tasks to be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators as referred to in regulation 35(4) (economic operators), by a participant in that group.

Use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations

78

(1) This regulation applies to objective rules and criteria for the exclusion and selection of—

(a) economic operators requesting qualification in a qualification system; and

(b) candidates and tenderers in open, restricted or negotiated procedures, competitive dialogues or innovation partnerships.

(2) The objective rules and criteria may include—

(a) the exclusion grounds referred to in regulation 58 of the Public Contracts (Scotland) Regulations on the terms set out in that regulation;

(b) the selection criteria listed in regulation 59 of the Public Contracts (Scotland) Regulations on the terms set out in that regulation, including as regards the limits to requirements concerning yearly turnovers as provided for under regulation 59(9) and (10) of those Regulations.

(3) Where the utility is a contracting authority, the criteria and rules referred to in paragraph (1) must include the exclusion grounds listed in regulation 58(1) to (3) of the Public Contracts (Scotland) Regulations on the terms set out in that regulation.

(4) For the purposes of applying paragraphs (1) to (3), regulations 60 to 62 of the Public Contracts (Scotland) Regulations apply.

(5) For the purposes of paragraphs (2) and (4), any reference to a contracting authority in regulations 58 to 62 of the Public Contracts (Scotland) Regulations must be read as a reference to a utility.

Quality assurance standards and environmental management standards

79

(1) A utility must, where it requires the production of certificates drawn up by independent bodies attesting that the economic operator complies with certain quality assurance standards, including on accessibility for disabled persons, refer to quality assurance systems based on the relevant European standards series certified by accredited bodies.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A utility must also accept other evidence of equivalent quality assurance measures where the economic operator concerned had no possibility of obtaining such certificates within the relevant time limits for reasons that are not attributable to that economic operator, provided that the economic operator proves that the proposed quality assurance measures comply with the required quality assurance standards.

(4) Where a utility requires the production of certificates drawn up by independent bodies attesting that the economic operator complies with certain environmental management systems or standards, the utility must refer to ...

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) ... environmental management standards based on the relevant European or international standards by accredited bodies,

...

(5) Where an economic operator had demonstrably no access to such certificates referred to in paragraph (4) or no possibility of obtaining them within the relevant time limits for reasons that are not attributable to that economic operator, the utility must accept other evidence of environmental management measures, provided that the economic operator proves that these measures are equivalent to those required under the applicable environmental management system or standard.

Contract award criteria

80

(1) A utility must base the award of contracts on the most economically advantageous tender assessed from the point of view of the utility.

(2) Where the utility is a person mentioned in regulation 4(1)(a) (utilities) it must not use price only or cost only as the sole award criteria.

(3) A utility must identify the most economically advantageous tender on the basis of the price or cost using a cost-effectiveness approach (such as life-cycle costing in accordance with regulation 81 (life-cycle costing)) and may include the best price-quality ratio which must be assessed on the basis of criteria linked to the subject-matter of the contract in question.

(4) Criteria referred to in paragraph (3) may comprise or include—

(a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics and trading and its conditions;

(b) organisation, qualification and experience of staff assigned to performing the contract, where the quality of the staff assigned can have a significant impact on the level of performance of the contract; and

(c) after-sales service and technical assistance, delivery conditions such as delivery date, delivery process and delivery period or period of completion and commitments with regard to parts and security of supply.

(5) The cost element may also take the form of a fixed price or cost on the basis of which economic operators will compete on quality criteria only.

(6) Award criteria must be considered to be linked to the subject-matter of the contract where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in—

(a) the specific process of production, provision or trading of those works, supplies or services; or

(b) a specific process for another stage of their life cycle,

even where such factors do not form part of their material substance.

(7) Award criteria must—

(a) not have the effect of conferring an unrestricted freedom of choice upon the utility;

(b) ensure the possibility of effective competition; and

(c) be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria.

(8) In case of doubt, the utility must verify effectively the accuracy of the information and proof provided by the tenderers.

(9) The utility must specify, in the procurement documents, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.

(10) The weightings referred to in paragraph (9) may be expressed by providing for a range with an appropriate maximum spread.

(11) Where weighting is not possible for objective reasons, the utility must indicate the criteria in descending order of importance.

Life-cycle costing

81

(1) Life-cycle costing must, to the extent relevant, cover part or all of the following costs over the life cycle of a product, service or works—

(a) costs, borne by the utility or other users, such as—

(i) costs relating to acquisition;

(ii) costs of use, such as consumption of energy and other resources;

(iii) maintenance costs;

(iv) end of life costs, such as collection and recycling costs; and

(b) costs imputed to environmental externalities linked to the works, product or service during its life cycle, provided their monetary value can be determined and verified.

(2) The costs mentioned in paragraph (1)(b) may include the cost of emissions of greenhouse gases and of other pollutant emissions and other climate change mitigation costs.

(3) The method used for the assessment of costs imputed to environmental externalities must fulfil all of the following conditions—

(a) it is based on objectively verifiable and non-discriminatory criteria and, in particular, where it has not been established for repeated or continuous application, it must not unduly favour or disadvantage certain economic operators;

(b) it is accessible to all interested parties;

(4) Where a utility assesses costs using a life-cycle costing approach, the utility must indicate in the procurement documents—

(a) the data to be provided by the tenderers; and

(b) the method which the utility will use to determine the life-cycle costs on the basis of those data.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Abnormally low tenders

82

(1) A utility must require a tenderer to explain the price or costs proposed in the tender where the tender appears to be abnormally low in relation to the works, supplies or services.

(2) The explanations given in accordance with paragraph (1) may, in particular, relate to—

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

(b) the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the execution of the works or for the supply of the products or services;

(d) compliance with obligations referred to in regulation 34(4) (principles of procurement);

(e) compliance with obligations referred to in regulation 85 (subcontracting);

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g) whether the price or costs take into account the grant of subsidies.

(3) The utility must assess the information provided by consulting the tenderer.

(4) The utility may only reject the tender where the explanations given and any evidence supplied do not satisfactorily account for the low level of price or costs proposed, taking into account the elements referred to in paragraph (2).

(5) The utility must reject the tender where the utility has established that the tender is abnormally low because it does not comply with applicable obligations referred to in regulation 34(4) (principles of procurement).

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SECTION 4 — Tenders comprising products originating in third countries and relations with those countries

Tenders comprising products originating in third countries

83

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 4 — CONTRACT PERFORMANCE

Conditions for performance of contracts

84

(1) A utility may lay down special conditions relating to the performance of a contract, provided that they are—

(a) linked to the subject-matter of the contract within the meaning of regulation 80(6) (contract award criteria); and

(b) indicated in the call for competition or in the procurement documents.

(2) Such conditions may include economic, innovation-related, environmental, social or employment-related considerations.

Subcontracting

85

(1) In the procurement documents, the utility may ask the tenderer to indicate in its tender any share of the contract that the tenderer may intend to subcontract to third parties and information about any proposed subcontractors including their name and contact details.

(2) Paragraph (1) is without prejudice to the liability of the main contractor under the contract.

(3) Where paragraph (4) applies, the utility must require the main contractor to notify it at the latest when the performance of the contract commences, of the name, contact details and legal representatives of its subcontractors, involved in such works or services, in so far as known at the time.

(4) This paragraph applies in the case of—

(a) a works contract;

(b) a service contract which includes services to be provided at a facility under the direct oversight of the utility.

(5) The utility must require the main contractor to notify the utility of—

(a) any changes to the information referred to in paragraph (3) during the course of the contract; and

(b) the name, contact details and legal representatives of any new subcontractors which the contractor subsequently involves in such works or services.

(6) Paragraphs (3) and (5) do not apply to subcontractors who provide only supplies.

(7) Where necessary for the purposes of paragraph (9), the required information must be accompanied by SPDs in respect of the subcontractors.

(8) A utility may require a contractor to provide information of the kind referred to in paragraphs (3) and (5) in respect of any one or more of the following—

(a) supply contracts or service contracts (other than those concerning services to be provided at the facilities under the direct oversight of the utility);

(b) suppliers involved in works or service contracts;

(9) A utility may, in accordance with regulation 78(4) (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations), verify whether there are grounds for exclusion of subcontractors pursuant to regulation 58 of the Public Contracts (Scotland) Regulations.

(10) The utility must require the economic operator to replace a subcontractor in respect of which the verification has shown that there are compulsory grounds for exclusion.

(11) The utility may require the economic operator to replace a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.

Modification of contracts during their term

86

(1) A contract and framework agreement may be modified without a new procurement—

(a) where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses or options, provided that such clauses—

(i) state the scope and nature of possible modifications or options as well as the conditions under which they may be used; and

(ii) do not provide for modifications or options that would alter the overall nature of the contract or framework agreement;

(b) to provide for additional works, supplies or services by the original contractor, irrespective of their value, that have become necessary and were not included in the initial procurement, where a change of contractor—

(i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and

(ii) would cause significant inconvenience or substantial duplication of costs for the utility;

(c) where the need for modification has been brought about by circumstances which a diligent utility could not have foreseen and the modification does not alter the overall nature of the contract or framework agreement;

(d) where a new contractor replaces one to which the utility had initially awarded the contract or framework as a consequence of—

(i) an unequivocal review clause or option in conformity with sub-paragraph (a); or

(ii) complete or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, by another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract or framework agreement and is not aimed at circumventing the application of this Part;

(e) where the modifications, irrespective of their value, are not substantial (as defined in paragraph (7)); or

(f) where paragraph (4) applies.

(2) A utility which has modified a contract or framework agreement in either of the cases described in paragraph (1)(b) or (c) must submit a notice to that effect for publication in accordance with regulation 69 (publication on the UK e-notification service).

(3) The notice referred to in paragraph (2) must contain the information set out in Annex XVI to the Utilities Contracts Directive , but as if paragraph 10 (financing by EU funds) were omitted.

(4) This paragraph applies where the value of the modification is below both of the following values—

(a) the relevant threshold mentioned in regulation 15 (thresholds); and

(b) 10% of the initial contract value for service and supply contracts or framework agreements and 15% of the initial contract value for works contracts or framework agreements,

provided that the modification does not alter the overall nature of the contract or framework agreement.

(5) For the purposes of paragraph (4), where several successive modifications are made, the value must be the net cumulative value of the successive modifications.

(6) For the purpose of the calculation of the values mentioned in paragraph (4)(b) the updated figure shall be the reference figure when the contract or framework agreement includes an indexation clause.

(7) A modification of a contract or a framework agreement during its term must be considered substantial for the purpose of paragraph (1)(e) where one or more of the following conditions are met—

(a) the modification renders the contract or the framework agreement materially different in character from the one initially concluded;

(b) the modification introduces conditions which, had they been part of the initial procurement, would have—

(i) allowed for the admission of candidates other than those initially selected;

(ii) allowed for the acceptance of a tender other than that originally accepted; or

(iii) attracted additional participants in the procurement;

(c) the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement;

(d) the modification extends the scope of the contract or framework agreement considerably;

(e) a new contractor replaces one to which the utility had initially awarded the contract or framework agreement in cases other than those provided for in paragraph (1)(d).

(8) A new procurement in accordance with these Regulations is required for modifications of the provisions of a works, supply or service contract or a framework agreement during its term other than those provided for in this regulation.

Termination of contracts

87

(1) A utility must ensure that every works, supply or service contract or framework which the utility awards contains provisions enabling the utility to terminate the contract or framework where—

(a) the contract or framework has been subject to a substantial modification which would have required a new procurement in accordance with regulation 86(8) (modification of contracts during their term); or

(b) the contractor has, at the time of contract award, been in one of the situations referred to in regulation 58(1) of the Public Contracts (Scotland) Regulations, including as a result of the application of regulation 58(2) of those Regulations, and should have been excluded from the procurement as a result of the application of rules and criteria referred to in regulation 78(3) (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations) of these Regulations ...

(2) Those provisions may address the basis on which the power is to be exercisable in those circumstances, for example by providing for notice of termination to be given and by addressing consequential matters that will or might arise from the termination.

(3) To the extent that a contract or framework does not contain provisions enabling the utility to terminate the contract or framework on any of the grounds mentioned in paragraph (1), a power for the utility to do so on giving notice to the contractor shall be an implied term of that contract or framework.

(4) A utility must not terminate a contract in a manner that circumvents the obligations under these Regulations.

PART 3 — PARTICULAR PROCUREMENT REGIMES

88

A contract or framework for social and other specific services listed in Schedule 2 (social and other specific services) must be awarded in accordance with this Chapter, where the estimated value of the contract or framework is equal to or greater than the threshold indicated in regulation 15(1)(c) (thresholds).

Publication of notices

89

(1) A utility intending to award a contract or framework for the services referred to in regulation 88 (award of contracts for social and other specific services) must make known its intention by means of—

(a) a contract notice;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Paragraph (1) shall not apply where a negotiated procedure without prior call for competition could have been used in accordance with regulation 48 (use of the negotiated procedure without prior call for competition) for the award of the contract or framework.

(3) A utility that has awarded a contract or framework for the services referred to in regulation 88 (award of contracts for social and other specific services) must make known the results of the procurement by means of a contract award notice.

(4) A utility may, however, group notices referred to in paragraph (3) on a quarterly basis, in which case it must submit the grouped notices within 30 days of the end of each quarter.

(5) The notices referred to in paragraphs (1), (3) and (4) must contain the information referred to in the relevant part of Annex XVIII to the Utilities Contracts Directive , but as if, in paragraph 4 of part D, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Utilities Contracts (Scotland) Regulations 2016).

(6) A utility must submit the notices referred to in paragraphs (1), (3) and (4) for publication in accordance with regulation 69 (publication on the UK e-notification service).

Principles of awarding contracts

90

(1) A utility must determine the procedure that is to be applied in connection with the award of a contract or framework subject to this Chapter and may take into account—

(a) the specificities of the services in question; and

(b) the requirements and needs of users.

(2) The procedure must be at least sufficient to ensure compliance with the principles of transparency and equal treatment of economic operators.

(3) The procedure may provide for the exclusion from participation in the procurement of any economic operator in relation to which exclusion grounds referred to in regulation 58 of the Public Contracts (Scotland) Regulations apply on the terms set out in that regulation.

(4) Where the utility is a contracting authority, the procedure must provide for the exclusion from participation in the procurement of any economic operator in relation to which exclusion grounds referred to in regulation 58(1) to (3) of the Public Contracts (Scotland) Regulations apply on the terms set out in that regulation.

(5) Where, in accordance with regulation 89 (publication of notices), a contract notice ... has been published in relation to a procurement, the utility must, except in the circumstances mentioned in paragraph (6), conduct that procurement, and award any resulting contract or framework, in conformity with the information contained in the notice about—

(a) conditions for participation;

(b) time limits for contacting the utility; and

(6) The utility may, however, conduct the procurement, and award any resulting contract or framework, in a way which is not in conformity with that information, but only if all of the following conditions are met—

(a) the failure to conform does not, in the particular circumstances, amount to a breach of the principles of transparency and equal treatment of economic operators;

(b) the utility has—

(i) after giving due consideration to the matter, concluded that sub-paragraph (a) is applicable;

(ii) documented that conclusion and the reasons for it in accordance with regulation 96(5) and (6) (reporting and documentation requirements); and

(iii) informed the participants of the respects in which the utility intends to proceed in a way which is not in accordance with the information contained in the notice.

(7) In paragraph (6)(b)(iii), “participants” means any economic operators which have responded to the notice and not been informed by the utility that they are no longer under consideration for the award of a contract within the scope of the procurement concerned.

(8) All time limits imposed upon economic operators for the purposes of this regulation, whether for responding to a contract notice or taking any other steps in the relevant procedure, must be reasonable and proportionate having regard to the nature of the requirement and the needs of service users.

(9) Without prejudice to the generality of paragraph (1), a utility may apply procedures for the purposes of this regulation which correspond (with or without variations) to procedures, techniques or other features otherwise provided for in these Regulations, as well as procedures which do not.

(10) In relation to the award of contracts subject to this regulation, a utility may take into account—

(a) the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services;

(b) the specific needs of different categories of users, including disadvantaged and vulnerable groups;

(d) innovation; and

(e) any other relevant consideration.

(11) A utility which is a person mentioned in regulation 4(1)(a) (utilities) must award a contract or framework for services listed in Schedule 2 (social and other specific services) on the basis of the tender representing the best price-quality ratio, taking into account quality and sustainability criteria for such services.

CHAPTER 2 — RULES GOVERNING DESIGN CONTESTS

Scope of Chapter

91

This Chapter applies to—

(a) design contests organised as part of a procedure leading to the award of a service contract provided that the estimated value inclusive of VAT, where appropriate of the service contract including any possible prizes or payments to participants is equal to or greater than the threshold referred to in regulation 15(1)(a) (thresholds); and

(b) design contests where the total estimated value inclusive of VAT, where appropriate of contest prizes and payments to participants, including the estimated value inclusive of VAT, where appropriate of the service contract which might subsequently be concluded in accordance with regulation 48(4)(f) (use of the negotiated procedure without prior call for competition) if the utility does not exclude such an award in the contest notice, is equal to or greater than the threshold referred to in regulation 15(1)(a) (thresholds).

Notices

92

(1) A utility that intends to carry out a design contest must call for competition by means of a contest notice which includes the information set out in Annex XIX to the Utilities Contracts Directive , but as if, in paragraph 15, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

(2) Where a utility intends to award a subsequent service contract under regulation 48(4)(f) (use of the negotiated procedure without prior call for competition) this must be indicated in the contest notice.

(3) A utility that has held a design contest must—

(a) make the results known by means of a notice which must include the information set out in Annex XX to the Utilities Contracts Directive , but as if, in paragraph 11, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations; and

(b) submit such notice to the UK e-notification service within 30 days of the closure of the design contest.

(4) A utility may withhold from publication information on the result of the contest where the release of the information—

(a) would impede law enforcement or otherwise be contrary to the public interest;

(b) would prejudice the commercial interests of any person; or

(5) The utility must submit the notices referred to in this regulation for publication in accordance with regulation 69 (publication on the UK e-notification service).

Rules on the organisation of design contests and the selection of participants and the jury

93

(1) When organising a design contest, a utility must apply procedures which are adapted to the provisions of Part 1 and this Chapter.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where a design contest is restricted to a limited number of participants, the utility must—

(a) lay down clear and non-discriminatory selection criteria; and

(b) ensure that the number of candidates invited to participate is sufficient to ensure genuine competition in so far as there are enough qualified candidates.

(4) A utility must appoint a jury which must be composed exclusively of natural persons who are independent participants in the contest.

(5) Where a particular professional qualification is required of participants in a contest at least a third of the jury members must have that qualification or an equivalent qualification.

Decisions of the jury

94

(1) The jury must be autonomous in its decisions and opinions.

(2) The jury must examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice.

(3) The jury must record its ranking of projects in a report, signed by its members, made according to the merits of each project, together with its remarks and any points that may need clarification.

(4) Anonymity must be observed until the jury has reached its opinion or decision.

(5) Candidates may be invited, if need be, to answer questions that the jury has recorded in the minutes to clarify any aspects of the projects.

(6) Complete minutes must be drawn up of the dialogue between jury members and candidates.

PART 4 — INFORMATION AND DOCUMENTATION

Retention of contract copies

95

(1) A utility must, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than—

(a) £884,720 in the case of supply or service contracts;

(b) £8,847,200 in the case of works contracts.

(2) A utility must grant access to those contracts, but access to specific documents or items of information may be denied to the extent and on the conditions provided for in the rules on access to documents and data protection applicable in the relevant part of the United Kingdom.

Reporting and documentation requirements

96

(1) Subject to paragraph (2), a utility must keep appropriate information on each contract and framework agreement covered by these Regulations and each time a dynamic purchasing system is established.

(2) The information referred to in paragraph (1) must be sufficient to permit the utility at a later date to justify decisions taken in connection with—

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

(b) the use of negotiated procedures without a call for competition in accordance with regulation 48 (use of the negotiated procedure without prior call for competition);

(c) the derogations provided for in Chapters 2 and 3 of Part 1 to these Regulations relating to Chapters 2 to 4 of Part 2 to these Regulations;

(d) where necessary, the reasons why means of communication other than electronic means have been used for the submission of tenders.

(3) To the extent that the contract award notice drawn up in accordance with regulations 68 (contract award notices) or 89(3) (publication of notices) contains the information required in this paragraph, the utility may refer to that notice.

(4) A utility must document the progress of all procurement procedures, whether or not the procedures are conducted by electronic means.

(5) For the purposes of paragraph (4), a utility must ensure that the utility keeps sufficient documentation to justify decisions taken in all stages of the procurement, such as documentation on—

(a) communications with economic operators;

(b) internal deliberations;

(d) dialogue or negotiation, if any;

(e) selection and award of the contract.

(6) The documentation must be kept for a period of at least 3 years from the date of award of the contract.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Where the Scottish Ministers so request, the utility must communicate the information and documentation referred to in paragraphs (1) to (5), or its main elements, to the Scottish Ministers ....

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 5 — REMEDIES

CHAPTER 1 — FACILITATION OF REMEDIES

Scope of Chapter

97

This Chapter applies to procurement falling within the scope of Parts 1 to 4.

Notices of decisions to award a contract or conclude a framework agreement

98

(1) Subject to paragraphs (4) and (5), a utility must, by notice in writing as soon as possible after the decision has been made, inform all tenderers and candidates concerned of its decision to award the contract, conclude the framework agreement or establish a dynamic purchasing system.

(2) The notice referred to in paragraph (1) must include—

(a) the criteria for the award of the contract, conclusion of the framework agreement or establishment of the dynamic purchasing system;

(b) where practicable, the score obtained by the economic operator which is to receive the notice;

(i) to be awarded the contract;

(ii) to become a party to the framework agreement; or

(iii) to be admitted to the dynamic purchasing system;

(d) in the case of an unsuccessful tenderer—

(i) a summary of the reasons why the tenderer was unsuccessful; and

(ii) the characteristics and relative advantages of the successful tender;

(e) in the case of an unsuccessful candidate concerned, a summary of the reasons why the candidate was unsuccessful; and

(f) a precise statement of the effect of regulation 99 (standstill period) on the economic operator which is to receive the notice.

(3) The reasons referred to in paragraph (2)(d)(i) and (e) must include any reason for the utility’s decision that the economic operator did not meet the technical specifications—

(a) because compliance with a specification mentioned in regulation 58(13) (technical specifications) does not address the performance or functional requirements laid down by the utility; or

(b) in an equivalent manner as mentioned in regulation 58(14) (technical specifications).

(4) Paragraph (1) does not apply where—

(a) the only tenderer is the economic operator to be awarded the contract or to become a party to the framework agreement, and there are no candidates concerned;

(b) the contract is a contract awarded under a framework agreement or a dynamic purchasing system; or

(5) A utility may withhold any information to be provided in accordance with the preceding requirements of this regulation where the release of such information—

(a) would impede law enforcement or would otherwise be contrary to the public interest;

(b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or

(6) Subject to paragraph (5), a utility must within 15 days of the date on which it receives a request in writing from any economic operator—

(a) if it was unsuccessful, inform that economic operator of the reasons why it was unsuccessful, including any reason referred to in paragraph (3);

(b) in the case of an unsuccessful tenderer, other than a tenderer which has been informed by notice under paragraph (1), inform that tenderer of the characteristics and relative advantages of the successful tender and the name of—

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

(ii) the parties to the framework agreement; or

(iii) the economic operators admitted to the dynamic purchasing system; and

(c) if it was successful, a description of any improvements the utility considers the tenderer could have made to its tender.

(7) Subject to paragraph (5), a utility must by notice in writing, as soon as possible after the decision has been made, inform all candidates and tenderers of its decision to abandon or recommence a contract award procedure in respect of which a call for competition has been published in relation to—

(a) the award of a contract;

(b) the conclusion of a framework agreement; or

(8) Where a utility provides information in accordance with paragraph (7) it must include the reasons for its decision and, if so requested by an economic operator, must provide the information and reasons in writing.

(9) In this regulation—

“candidate” means a candidate, as defined in regulation 2(1) (interpretation), which—is not a tenderer; andhas not been informed of the rejection of its application and the reasons for it; and

“tenderer” means a tenderer, as defined in regulation 2(1) (interpretation), which has not been definitively excluded.

(10) For the purposes of paragraph (9), an exclusion is definitive only if the tenderer has been notified of the exclusion and either—

(a) the exclusion has been held to be lawful in proceedings under Chapter 2 of this Part (applications to the court); or

(b) the time limit for starting such proceedings has expired even on the assumption that the court would have granted the maximum extension permitted by regulation 101(4) (enforcement of duties through the courts).

Standstill period

99

(1) A utility must allow a period of at least the relevant standstill period to elapse between the date of despatch of the notice referred to in regulation 98(1) (notices of decisions to award a contract or conclude a framework agreement) and the date on which that utility enters into the contract or concludes the framework agreement.

(2) Paragraph (1) does not apply where—

(a) the contract or framework agreement is exempt from the requirement for prior publication of a call for competition;

(b) there are no tenderers concerned or candidates concerned; or

(c) a notice is not required to be given under regulation 98(1) (notices of decisions to award a contract or conclude a framework agreement).

(3) Where notice is sent to all economic operators by facsimile or electronic means, the standstill period is a period of 10 days ending at midnight at the end of the 10th day after that on which the last notice is sent.

(4) Where the notice is sent to any economic operators only by other means, the standstill period is a period of 15 days ending at midnight at the end of the 15th day after that on which the last notice is sent.

CHAPTER 2 — APPLICATIONS TO THE COURT

Duty owed to economic operators

100

(1) The obligation on a utility to comply with the provisions of these Regulations (except where otherwise specified) ...is a duty owed to an economic operator from the United Kingdom or Gibraltar.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement of duties through the courts

101

(1) A breach of the duty owed in accordance with regulation 100 (duty owed to economic operators) is actionable by any economic operator which, in consequence of the breach, suffers, or risks suffering, loss or damage.

(2) Any proceedings for the purposes of paragraph (1) must be brought in the Sheriff Court or the Court of Session.

(3) Proceedings under this regulation may not be brought unless—

(a) the economic operator bringing the proceedings has informed the utility of—

(i) the breach or apprehended breach of the duty owed to it in accordance with regulation 100 (duty owed to economic operators); and

(ii) of its intention to bring proceedings under this Part in respect of that breach or apprehended breach; and

(b) the proceedings are brought in accordance with paragraph (4).

(4) For the purpose of paragraph (3)(b), proceedings must be brought—

(a) in the case of proceedings seeking an ineffectiveness order (as defined in regulation 104 (ineffectiveness orders))—

(i) where paragraph (5) applies, within 30 days from the relevant date referred to in that paragraph; and

(ii) in any other case, within 6 months from the date of the contract being entered into or the date of conclusion of the framework agreement; and

(b) in any other case, within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen unless the court considers that there is a good reason for extending the period within which proceedings may be brought, in which case the court may extend that period up to a maximum of 3 months from that date.

(5) For the purpose of paragraph (4)(a)(i), this paragraph applies where—

(a) the utility has submitted a contract award notice to the UK e-notification service in accordance with regulation 69 (publication on the UK e-notification service), including reasons for its decision to enter into the contract or conclude the framework agreement without prior publication of a call for competition, in which case the relevant date is the date of publication of the notice on the UK e-notification service; or

(b) the utility has by notice in writing informed all tenderers concerned and all candidates concerned (if any) of its decision in relation to the award of the contract or the conclusion of the framework agreement, and the notice includes the information referred to in regulation 98(2)(d)(i) or, as the case may be, (e) (notices of decisions to award a contract or conclude a framework agreement), in which case the relevant date is the date of sending of the notice.

Automatic Suspension of utility’s power to proceed with contract award

102

Without prejudice to the application of any relevant standstill period, where proceedings under this Part are served on a utility in relation to a contract that has not been entered into, a framework agreement that has not been concluded or a dynamic purchasing system that has not been established, the utility must not enter into the contract, conclude the framework agreement or establish the dynamic purchasing system unless—

(a) the proceedings are determined, discontinued or disposed of; or

(b) the court, by interim order, brings to an end the prohibition.

Powers and duties of the court

103

(1) Subject to paragraphs (3) and (7), but otherwise without prejudice to any other powers of the court, in proceedings brought under this Part the court—

(a) may by interim order suspend one or more of the following—

(i) the procedure leading to the award of a contract, the conclusion of a framework agreement, the establishment of a dynamic purchasing system or the determination of a design contest;

(ii) the implementation of any decision or action taken by the utility in the course of following a procedure referred to in paragraph (i);

(b) if satisfied that a decision or action taken by a utility was in breach of the duty owed under regulation 100 (duty owed to economic operators), may do one or more of the following—

(i) order the setting aside of that decision or action;

(ii) order the utility to amend any document;

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

(2) In any interim proceedings under this Part the court may decide not to grant an interim order when the negative consequences of such an order are likely to outweigh the benefits, having regard to the following considerations—

(a) that decisions taken by a utility must be reviewed effectively and, in particular, as rapidly as possible;

(b) the probable consequences of an interim order for all interests likely to be harmed; and

(3) Where the court is satisfied that regulation 104(8)(a) (ineffectiveness orders) applies but the second ground for ineffectiveness (within the meaning of regulation 104(8)) is not otherwise met, the court must, without prejudice to the other powers of the court, order—

(a) the payment by the utility of a financial penalty; or

(b) the shortening of the duration of the contract or framework agreement awarded following the procurement in relation to which the breach occurred.

(4) In determining what order to make under paragraph (3) the court must—

(a) ensure that the order is effective, proportionate and dissuasive; and

(b) have regard to all relevant factors including—

(i) the seriousness of the breach; and

(ii) the behaviour of the utility.

(5) Where the court makes an order under paragraph (3)(b) the court must, without prejudice to the other powers of the court, make such other order as the court considers appropriate to address the consequences of the shortening of the duration of the contract or framework agreement on the rights and obligations of the parties to the contract or framework agreement.

(6) Before making an order under paragraph (5), the court must have regard to any terms of the contract or framework agreement relating to the rights and obligations of the parties should the duration of the contract or framework agreement be shortened.

(7) Subject to paragraph (3) and regulation 104 (ineffectiveness orders), in proceedings under this Part 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 under regulation 100 (duty owed to economic operators) if the contract in relation to which the breach occurred has been entered into, or the framework agreement in relation to which the breach occurred has been concluded.

(8) Sections 21 and 42 of the Crown Proceedings Act 1947[^f00045] do not apply in proceedings brought under this Part against the Crown.

Ineffectiveness orders

104

(1) Without prejudice to all rights and obligations in respect of the period leading up to the date of the order, an ineffectiveness order made in relation to a contract renders unenforceable all rights and obligations directly arising from the contract in respect of the period commencing on the date of the order.

(2) Subject to any order made under regulation 105(1)(b) (powers of the court) obligations rendered unenforceable by an ineffectiveness order made in relation to a contract must not be performed by the parties to the contract.

(3) Without prejudice to any power of the court to make an ineffectiveness order in relation to a contract based on a framework agreement in accordance with this Part, an ineffectiveness order made in relation to a framework agreement prohibits, with effect from the date of the order, the awarding of contracts based on the framework agreement.

(4) Subject to paragraph (5) and regulation 106 (general interest grounds for not making a declaration of ineffectiveness), the court must make an ineffectiveness order where—

(a) the first ground for ineffectiveness referred to in paragraph (6) applies;

(b) the second ground for ineffectiveness referred to in paragraph (8) applies; or

(5) In proceedings under this Part to which regulation 101(4)(b) (enforcement of duties through the courts) applies, the court does not have power to make an ineffectiveness order if the proceedings would be incompetent if regulation 101(4)(a) applied to the proceedings.

First ground for ineffectiveness6The first ground for ineffectiveness applies where the utility has entered into a contract or has concluded a framework agreement without submitting a call for competition to the UK e-notification service in circumstances where the contract or framework agreement was not exempt from the requirement for prior publication of a contract notice.7The first ground for ineffectiveness does not apply where—athe utility submitted to the UK e-notification service a voluntary ex ante transparency notice expressing its intention to enter into the contract or to conclude the framework agreement and containing—ithe name and contact details of the utility;iia description of the object of the contract or framework agreement;iiia justification of the decision of the utility to award the contract or conclude the framework agreement without prior publication of a contract notice;ivthe name and contact details of the economic operator to be awarded the contract or to become party to the framework agreement; andvany other information which the utility considered useful; andbthe utility allowed a period of at least 10 days to elapse between the date of publication on the UK e-notification service of the notice referred to in sub-paragraph (a) and the date on which the utility entered into the contract or concluded the framework agreement.

Second ground for ineffectiveness8The second ground for ineffectiveness applies where all of the following apply—athe utility has breached regulation 98(1) (notices of decisions to award a contract or conclude a framework agreement), 99(1) (standstill period) or 102 (automatic suspension of utility’s power to proceed with contract award);bthe utility’s breach referred to in sub-paragraph (a) prevented the economic operator from bringing proceedings or obtaining a remedy before the contract was entered into or the framework agreement was concluded;cin awarding the contract or concluding the framework agreement there has been a breach of the duty owed to the economic operator under these Regulations, other than a breach of regulations 98(1) (notices of decisions to award a contract or conclude a framework agreement), 99(1) (standstill period) or this Chapter;dthe utility’s breach referred to in sub-paragraph (c) has affected the chances of the economic operator bringing proceedings under this Part to obtain the contract or become a party to the framework agreement.

Third ground for ineffectiveness9The third ground for ineffectiveness applies where—athe contract is a contract based on a framework agreement or a contract awarded under a dynamic purchasing system;bthe contract was awarded in breach of—iregulation 49(5) (framework agreements), in the case of a contract based on a framework agreement (rules governing the award of contracts based on a framework agreement); oriiregulation 50(17) to (19), (21) or (22) (dynamic purchasing systems), in the case of a contract awarded under a dynamic purchasing system (rules governing the award of contracts under a dynamic purchasing system); andcthe estimated value of the contract at the relevant time is equal to or greater than the relevant threshold.10The third ground for ineffectiveness does not apply where the utility—aconsidered the award of the contract to be in accordance with the provisions mentioned in paragraph (9)(b);bhas, despite regulation 98(4)(b) (notices of decisions to award a contract or conclude a framework agreement), by notice in writing informed the economic operators that submitted tenders of its decision in relation to the award of the contract and the notice included the information referred to in regulation 98(1) to (3); andchas allowed a period of at least the relevant standstill period to elapse between the date of sending of the notice of its decision to award the contract and the date on which the utility entered into the contract.

Powers of the court: ineffectiveness order

105

(1) If an ineffectiveness order is made, the court must, without prejudice to the other powers of the court—

(a) order the payment by the utility of a financial penalty; and

(b) make such other order as the court considers appropriate to address the consequences of the ineffectiveness order on the rights and obligations of the parties to the contract or framework agreement.

(2) In the case of an order made under paragraph (1)(a), the court must have regard to the extent to which the contract or framework agreement will remain in effect in respect of the period leading up to the date of the ineffectiveness order.

(3) Before making an order under paragraph (1)(b), the court must have regard to any terms of the contract or framework agreement relating to the rights and obligations of the parties should an ineffectiveness order be made in relation to the contract or framework agreement.

General interest grounds for not making a declaration of ineffectiveness

106

(1) The court may decline to make an ineffectiveness order where the court is satisfied that overriding reasons relating to a general interest require that the enforceability of the rights and obligations arising from the contract or framework agreement should be maintained.

(2) For the purposes of paragraph (1)—

(a) economic interests directly linked to the contract or framework agreement do not constitute overriding reasons relating to a general interest; and

(b) economic interests in the effectiveness of the contract or framework agreement may only be considered as overriding reasons relating to a general interest in exceptional circumstances where ineffectiveness would lead to disproportionate consequences.

(3) For the purposes of paragraph (2)(a), economic interests directly linked to the contract or framework agreement include the costs—

(a) resulting from the delay in the performance of the contract or framework agreement;

(b) resulting from the commencement of a new procurement;

(d) of legal obligations resulting from an ineffectiveness order.

Other orders

107

(1) Where the court declines to make an ineffectiveness order under regulation 106 (general interest grounds for not making a declaration of ineffectiveness), the court must, without prejudice to the other powers of the court, order—

(a) the payment by the utility of a financial penalty; or

(b) the shortening of the duration of the contract or framework agreement.

(2) In determining what order to make under paragraph (1)(a), regulation 103(4) (powers and duties of the court) applies.

(3) Regulation 103(5) and (6) (powers and duties of the court) applies to an order made under paragraph (1)(b) as it applies to an order made under regulation 103(3)(b).

Financial penalties

108

(1) Subject to paragraph (2), where a financial penalty is ordered to be paid under this Part—

(a) the order must state that the financial penalty must be paid to the Scottish Ministers; and

(b) the clerk of the court must send an extract of the decree (without charge) to the Scottish Ministers.

(2) Paragraph (1) does not apply to any financial penalty ordered to be paid by the Scottish Ministers or an office in the Scottish Administration which is not a ministerial office.

(3) The Scottish Ministers must pay into the Scottish Consolidated Fund any financial penalty—

(a) ordered to be paid by them under this Part; and

(b) recovered by them under paragraph (1).

(4) An office in the Scottish Administration which is not a ministerial office must pay any financial penalty ordered to be paid by them under this Part into the Scottish Consolidated Fund.

(5) In this regulation, “an office in the Scottish Administration which is not a ministerial office” is construed in accordance with section 126(8) of the Scotland Act 1998[^f00047].

PART 6 — REVOCATIONS, CONSEQUENTIAL AMENDMENTS, SAVINGS AND TRANSITIONAL PROVISIONS

Interpretation of Part 6

109

In this Part “the 2012 Regulations” means the Utilities Contracts (Scotland) Regulations 2012[^f00048].

Revocations and consequential amendments

110

(1) Subject to regulation 111 (transitional provision and saving where procurement commenced before 18th April 2016), the 2012 Regulations are revoked.

(2) The consequential and miscellaneous amendments set out in Schedule 3 (consequential and miscellaneous amendments to subordinate legislation) have effect.

Transitional provision and saving: where procurement commenced before 18th April 2016

111

(1) Nothing in these Regulations affects any contract award procedure or design contest commenced before 18th April 2016 which continues to be subject to the application of the 2012 Regulations as if those Regulations had not been revoked.

(2) For that purpose, a contract award procedure or design contest has commenced if, before that date—

(a) a contract notice, or as the case may be, design contest, has been sent to the Official Journal in accordance with the 2012 Regulations in order to invite offers or requests to be selected to tender for or to negotiate in respect of a proposed contract, framework agreement or dynamic purchasing system;

(b) a periodic indicative notice has been sent to the Official Journal in accordance with the 2012 Regulations, in which case the contract award procedure which is not affected by these Regulations and which will continue to be subject to the application of the 2012 Regulations is the procedure for the award of any proposed contract the intention to award which was indicated in the notice, but only if the requirements in regulation 16(3)(a) or (b) of the 2012 Regulations are satisfied;

(c) the utility has had published any form of advertisement seeking offers or expressions of interest in a proposed contract, framework agreement or dynamic purchasing system; or

(d) the utility has contacted any economic operator in order to—

(i) seek expressions of interest or offers in respect of a proposed contract, framework agreement or dynamic purchasing system; or

(ii) respond to an unsolicited expression of interest or offer received from that economic operator in relation to a proposed contract, framework agreement or dynamic purchasing system.

(3) Nothing in these Regulations affects the award of a specific contract based on a framework agreement where the framework agreement was concluded—

(a) before 18th April 2016; or

(b) on or after that date following a contract award procedure which, by virtue of paragraph (1), was not affected by these Regulations,

which continues to be subject to the application of the 2012 Regulations as if those Regulations had not been revoked.

(4) Nothing in these Regulations affects the award of a specific contract under a dynamic purchasing system where the system was established—

(a) before 18th April 2016; or

(b) on or after that date following a contract award procedure which, by virtue of paragraph (1), was not affected by these Regulations,

which continues to be subject to the application of the 2012 Regulations as if those Regulations had not been revoked.

(5) Nothing in these Regulations, except regulations 86 (modification of contracts during their term) and 87(1)(a), (2) and (3) (termination of contracts), affects a contract awarded—

(a) before 18th April 2016; or

(b) on or after that date, where the award itself was not, by virtue of paragraphs (1) to (4), affected by these Regulations,

which continues to be subject to the application of the 2012 Regulations as if those Regulations had not been revoked.

(6) In this regulation, “contract”, “contract notice”, “design contest”, “dynamic purchasing system”, “economic operator”, “framework agreement”, “periodic indicative notice” and “utility” have the same meanings as in the 2012 Regulations.

Transitory provision: prior to full commencement of regulation 38(1) to (7)

112

(1) This regulation applies during the period beginning on 18th April 2016 and ending immediately before 18th October 2018.

(2) During that period, a utility may choose between the following means of communication for the purposes mentioned in paragraph (3)—

(a) electronic means in accordance with regulation 38 (rules applicable to communication);

(b) post or other suitable carrier;

(d) a combination of those means.

(3) That choice is available for all communication and information exchange in respect of which both the following criteria are met—

(a) the use of electronic means would, in accordance with regulation 38(1) to (7) (rules applicable to communication), have been required if those provisions had been in force;

(b) the use of electronic means is not required by any provision of these Regulations other than regulation 38(1) (rules applicable to communication).

Transitory provision: temporary exemption

113

(1) Notwithstanding paragraphs (3) and (4) of regulation 1, nothing in the provisions commenced by those paragraphs affect—

(a) any procurement or design contest that has commenced before the dates respectively mentioned in those paragraphs; or

(b) any contract awarded as a result of such procurement or following such contest.

(2) For that purpose, a procurement or design contest has commenced before the dates mentioned if, before such date—

(a) a contract notice or, as the case may be, contest notice, has been sent to the Official Journal in accordance with regulation 69 (form and manner of sending notices for publication at EU level) in order to invite offers or requests to be selected to tender for or to negotiate in respect of a proposed contract, framework agreement or dynamic purchasing system;

(b) where a periodic indicative notice has been sent to the Official Journal, in which case the contract award procedure that has commenced is the procedure for the award of any proposed contract the intention to award which was indicated in the notice, but only if the requirements in regulation 65(3)(a) to (c) (periodic indicative notices) are satisfied;

(c) the utility has dispatched any form of advertisement seeking offers or expressions of interest in a proposed contract, framework agreement or dynamic purchasing system; or

(d) the utility has contacted any economic operator in order to—

(i) seek expressions of interest or offers in respect of a proposed contract, framework agreement or dynamic purchasing system; or

(ii) respond to an unsolicited expression of interest or offer received from that economic operator in relation to a proposed contract, framework agreement or dynamic purchasing system.

SCHEDULE 1 — ACTIVITIES CONSTITUTING WORKS

In this Schedule, ‘NACE Rev.1’ has the same meaning as in Council Regulation (EEC) No 3037/90 on the statistical classification of economic activities in the European Community[^f00049] as that Regulation had effect in EU law immediately before IP completion day and numerical references in the columns relating to the NACE Rev.1 relate to the Annex to that Regulation. In the event of any difference of interpretation between the CPV and the NACE Rev.1, the CPV nomenclature shall apply.

*NACE Rev. 1*	*NACE Rev. 1*	*NACE Rev. 1*	*NACE Rev. 1*	*NACE Rev. 1*	*CPV Code*
*SECTION F*	*SECTION F*	*SECTION F*	*CONSTRUCTION*	*CONSTRUCTION*
*Division*	*Group*	*Class*	*Subject*	*Notes*
45			Construction	This division includes: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	This class includes: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.This class also includes:building site drainage.drainage of agricultural or forestry land.	45110000
		45.12	Test drilling and boring	This class includes:test drilling, test boring and core sampling for construction, geophysical, geological or similar purposes.This class excludes:drilling of production oil or gas wells, see 11.20.water well drilling, see 45.25,shaft sinking, see 45.25,oil and gas field exploration, geophysical, geological and seismic surveying, see 74.20.	45120000
	45.2		Building of complete constructions or parts thereof; civil engineering		45200000
		45.21	General construction of buildings and civil engineering works	This class includes: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
		45.21	General construction of buildings and civil engineering works	This class includes: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.	Except:
		45.21	General construction of buildings and civil engineering works	This class includes: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.	—45213316
		45.21	General construction of buildings and civil engineering works	This class includes: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.	45220000
		45.21	General construction of buildings and civil engineering works	This class includes: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.	45231000
		45.21	General construction of buildings and civil engineering works	This class includes: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.	45232000
		45.21	General construction of buildings and civil engineering works	This class excludes:service activities incidental to oil and gas extraction, see 11.20,erection of complete prefabricated constructions from self-manufactured parts not of concrete, see divisions 20, 26 and 28,construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations, see 45.23,building installation, see 45.3,building completion, see 45.4,architectural and engineering activities, see 74.20,project management for construction, see 74.20.	45232000
		45.22	Erection of roof covering and frames	This class includes:erection of roofs,roof covering,waterproofing.	45261000
		45.23	Construction of highways, roads, airfields and sport facilities	This class includes: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.This class excludes:preliminary earth moving, see 45.11.	45212212 and DA0345230000Except:452310004523200045234115
		45.24	Construction of water projects	This class includes: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	This class includes: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.This class excludes:renting of scaffolds without erection and dismantling, see 71.32	4525000045262000
	45.3		Building installation		45300000
		45.31	Installation of electrical wiring and fittings	This class includes: 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.	4521331645310000Except:45316000
		45.32	Insulation work activities	This class includes:installation in buildings or other construction projects of thermal, sound or vibration insulation.This class excludes:waterproofing, see 45.22.	45320000
		45.33	Plumbing	This class includes: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.This class excludes:installation of electrical heating systems, see 45.31.	45330000
		45.34	Other building installation	This class includes: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.	452341154531600045340000
	45.4		Building completion		45400000
		45.41	Plastering	This class includes:application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials.	45410000
		45.42	Joinery installation	This class includes:installation of not 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.This class excludes:laying of parquet and other wood floor coverings, see 45.43	45420000
		45.43	Floor and wall covering	This class includes: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	This class includes:interior and exterior painting of buildings,painting of civil engineering structures,installation of glass, mirrors, etc.This class excludes:installation of windows, see 45.42.	45440000
		45.45	Other building completion	This class includes:installation of private swimming pools,steam cleaning, sand blasting and similar activities for building exteriors,other building completion and finishing work n.e.c.This class excludes:interior cleaning of buildings and other structures see 74.70.	45212212 and DA0445450000
	45.5		Renting of construction or demolition equipment with operator		45500000
		45.50	Renting of construction or demolition equipment with operator	This class excludes:renting of construction or demolition machinery and equipment without operators, see 71.32.	45500000

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The Utilities Contracts (Scotland) Regulations 2016

Qualification systems

75

Criteria for qualitative selection

76

Reliance on the capacities of other entities

77

Use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations

78

Quality assurance standards and environmental management standards

79

Contract award criteria

80

Life-cycle costing

81

Abnormally low tenders

82

SECTION 4 — Tenders comprising products originating in third countries and relations with those countries

Tenders comprising products originating in third countries

83

CHAPTER 4 — CONTRACT PERFORMANCE

Conditions for performance of contracts

84

Subcontracting

85

Modification of contracts during their term

86

Termination of contracts

87

PART 3 — PARTICULAR PROCUREMENT REGIMES

CHAPTER 1 — SOCIAL AND OTHER SPECIFIC SERVICES

Award of contracts for social and other specific services

88

Publication of notices

89

Principles of awarding contracts

90

CHAPTER 2 — RULES GOVERNING DESIGN CONTESTS

Scope of Chapter

91

Notices

92

Rules on the organisation of design contests and the selection of participants and the jury

93

Decisions of the jury

94

PART 4 — INFORMATION AND DOCUMENTATION

Retention of contract copies

95

Reporting and documentation requirements

96

PART 5 — REMEDIES

CHAPTER 1 — FACILITATION OF REMEDIES

Scope of Chapter

97

Notices of decisions to award a contract or conclude a framework agreement

98

Standstill period

99

CHAPTER 2 — APPLICATIONS TO THE COURT

Duty owed to economic operators

100

Enforcement of duties through the courts

101

Automatic Suspension of utility’s power to proceed with contract award

102

Powers and duties of the court

103

Ineffectiveness orders

104

Powers of the court: ineffectiveness order

105

General interest grounds for not making a declaration of ineffectiveness

106

Other orders

107

Financial penalties

108

PART 6 — REVOCATIONS, CONSEQUENTIAL AMENDMENTS, SAVINGS AND TRANSITIONAL PROVISIONS

Interpretation of Part 6