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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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“Trusted Lists Commission Decision” means Commission Decision 2009/767/EC setting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2009) 7806)[^f00040].

Nomenclatures

39

Any references to nomenclatures in the context of procurement must be made using the CPV.

Conflicts of interest

40

(1) A utility must take appropriate measures to prevent, identify and remedy conflicts of interest arising in the conduct of a procurement so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.

(2) Without prejudice to the generality thereof, reference to “conflicts of interest” in paragraph (1) includes any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement.

(3) In paragraph (2)—

“relevant staff member” means staff members of the utility or of a procurement service provider acting on behalf of the utility, who are involved in the conduct of the procurement or may influence the outcome of that procedure; and

“procurement service provider” means a public or private body which offers an ancillary purchasing activity on the market.

PART 2 — RULES APPLICABLE TO CONTRACTS

CHAPTER 1 — PROCEDURES

Conditions relating to the GPA and other international agreements

41

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

Choice of procedures

42

(1) When undertaking a procurement a utility must apply procedures that conform to these Regulations.

(2) A utility must apply one of the following procedures—

(a) an open procedure;

(b) a restricted procedure;

(d) a competitive dialogue;

(e) an innovation partnership;

(f) a negotiated procedure without a prior call for competition.

(3) The procedures referred to in paragraph (2)(a) to (e) must include publication of a call for competition.

(4) The procedure referred to in paragraph (2)(f) does not require publication of a call for competition but it must only be used in one of the cases set out in regulation 48 (use of the negotiated procedure without prior call for competition).

(5) A call for competition may be made by means of—

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

(b) a notice on the existence of a qualification system in accordance with regulation 66 (notices on the existence of a qualification system) but only where the contract is to be awarded following a restricted or negotiated procedure, competitive dialogue or innovation partnership; or

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

(7) Nothing in these Regulations prevents a utility which has commenced a procurement from terminating that procurement at any time.

Open Procedure

43

(1) In an open procedure, a utility must permit any interested economic operator to submit a tender in response to a call for competition within the time period set by the utility in accordance with this regulation.

(2) The tender must be accompanied by the information for qualitative selection that is required by the utility.

(3) Subject to paragraphs (4) to (6), the minimum time period for the receipt of tenders shall be 35 days from the date on which the contract notice is submitted for publication.

(4) Where a utility has published a periodic indicative notice ..., the minimum time limit for the receipt of tenders may be reduced to 15 days, provided that—

(a) the periodic indicative notice included (in addition to the information required by regulation 65(2)) the information set out in section II of Part A of Annex VI to the Utilities Contracts Directive, read subject to the following modifications—

(i) in paragraph 7, the reference to the third and fourth sub-paragraph of Article 73(1) is to be read as a reference to regulation 71(4) and (5) of these Regulations;

(ii) in paragraph 21, the reference to Article 82 is to be read as a reference to regulation 80 of these Regulations; and

(b) the periodic indicative notice was submitted for publication between 35 days and 12 months before the date on which the contract notice was submitted for publication.

(5) Where a state of urgency duly substantiated by a utility renders it impracticable to apply the minimum time limit set out in paragraph (3), the utility may fix a time limit which must not be less than 15 days from the date on which the contract notice was submitted for publication.

(6) A utility may reduce the minimum time period referred to in paragraph (3) by a period of up to 5 days where it accepts that tenders may be submitted by electronic means in accordance with regulation 38 (rules applicable to communication).

Restricted Procedure

44

(1) In a restricted procedure, a utility must permit any economic operator to submit a request to participate in response to a call for competition within the time period set by the utility in accordance with this regulation.

(2) A request by an economic operator referred to in paragraph (1) must be accompanied by the information for qualitative selection that is requested by the utility.

(3) The minimum time period for receipt of requests to participate, other than in exceptional circumstances, shall be 30 days from the date on which—

(a) the contract notice was submitted for publication; ...

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

and shall, in any event, not be less than 15 days from such date.

(4) Only those economic operators invited to do so by the utility following its assessment of the information provided may submit a tender.

(5) A utility may limit the number of suitable candidates to be invited to participate in the procedure in accordance with regulation 76(2) (criteria for qualitative selection).

(6) The minimum time limit for the receipt of tenders may be set by agreement between the utility and the economic operators invited to tender, provided that all such economic operators have the same time to prepare and submit their tenders.

(7) If there is no agreement made further to paragraph (6), the minimum time period for the receipt of tenders shall be 10 days from the date on which the invitation to tender is sent.

Negotiated procedure with prior call for competition

45

(1) In a negotiated procedure with a prior call for competition, a utility must permit any economic operator to submit a request to participate in response to a call for competition within the time period set by the utility in accordance with this regulation.

(2) A request by an economic operator referred to in paragraph (1) must be accompanied by the information for qualitative selection that is requested by the utility.

(3) The minimum time period for receipt of requests to participate, other than in exceptional circumstances, shall be 30 days from the date on which—

(a) the contract notice was submitted for publication; ...

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

and shall, in any event, not be less than 15 days from such date.

(4) Only those economic operators invited to do so by the utility following its assessment of the information provided may participate in the negotiations.

(5) A utility may limit the number of suitable candidates to be invited to participate in the procedure in accordance with regulation 76(2) (criteria for qualitative selection).

(6) The minimum time limit for the receipt of tenders may be set by agreement between the utility and the economic operators invited to tender, provided that all such economic operators have the same time to prepare and submit their tenders.

(7) If there is no agreement made further to paragraph (6), the minimum time period for the receipt of tenders shall be 10 days from the date on which the invitation to tender is sent.

Competitive Dialogue

46

(1) In a competitive dialogue, a utility must permit any economic operator to submit a request to participate in response to a call for competition in accordance with regulation 42(5)(b) or (c) (choice of procedures) within the time period set by the utility in accordance with this regulation.

(2) A request by an economic operator referred to in paragraph (1) must be accompanied by the information for qualitative selection that is requested by the utility.

(3) The minimum time period for receipt of a request to participate, other than in exceptional circumstances, shall be 30 days from the date on which—

(a) the contract notice was submitted for publication; ...

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

and shall, in any event, not be less than 15 days from such date.

(4) Only those economic operators invited to do so by the utility following its assessment of the information provided may participate in the dialogue.

(5) A utility may limit the number of suitable candidates to be invited to participate in the procedure in accordance with regulation 76(2) (criteria for qualitative selection).

(6) The contract must be awarded on the sole basis of the best price-quality ratio in accordance with regulation 80 (contract award criteria).

(7) A utility must in the call for competition, in a descriptive document or in both—

(a) set out and define its needs and requirements;

(b) set out and define the chosen award criteria; and

(8) A utility—

(a) must open, with the participants selected in accordance with the relevant provisions of regulations 74 to 79, a dialogue with the aim of identifying and defining the means best suited to satisfying the utility’s needs; and

(b) may discuss all aspects of the procurement with such participants during this dialogue.

(9) During the dialogue, a utility—

(a) must ensure equal treatment of all participants; and

(b) must not provide information in a discriminatory manner which may give any participant an advantage over others.

(10) In accordance with regulation 37 (confidentiality), a utility must not reveal to the other participants solutions proposed or other confidential information communicated by a candidate or tenderer participating in the dialogue without the candidate or tenderer’s agreement.

(11) Any agreement referred to in paragraph (10) shall not take the form of a general waiver but must be given with reference to the intended communication of specific information.

(12) A utility may conduct a competitive dialogue in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage only by applying the award criteria specified in—

(a) the call for competition; or

(b) the descriptive document.

(13) The utility must indicate, in the contract notice or the descriptive document, whether it will use the option described in paragraph (12).

(14) The utility shall continue the dialogue until it can identify the solution or solutions which are capable of meeting its needs.

(15) When the utility has declared that the dialogue is concluded and informed the remaining participants, the utility must invite each remaining participant to submit their final tender on the basis of the solution or solutions presented and specified during the dialogue.

(16) The final tenders—

(a) shall contain all the elements required and necessary for the performance of the project; and

(b) may, subject to paragraph (17), be clarified, specified and optimised at the request of the utility.

(17) Any clarification, specification, optimisation or additional information provided pursuant to a request referred to in paragraph (16)(b) must not involve changes to the essential aspects of the tender or the procurement, including the needs and requirements set out in the call for competition or in the descriptive document, where such changes are likely to distort competition or cause discrimination.

(18) A utility must assess the tenders received on the basis of the award criteria laid down in the call for competition or in the descriptive document.

(19) At the request of the utility, and subject to paragraph (20), negotiations with the tenderer identified as having submitted the tender presenting the best price-quality ratio in accordance with regulation 80 (contract award criteria) may be carried out to confirm financial commitments or other terms contained in the tender in order to finalise the terms of the contract.

(20) Any negotiation and finalisation of the terms of the contract referred to in paragraph (19) must not involve changes to the essential aspects of the tender or the procurement, including the needs and requirements set out in the call for competition or in the descriptive document, where such changes are likely to distort competition or cause discrimination.

(21) A utility may specify prizes or payments to the participants in the dialogue.

Innovation Partnership

47

(1) A utility may establish an innovation partnership with one partner or with several partners conducting separate research and development activities.

(2) The innovation partnership must aim at the development of innovative works, products or services and the subsequent purchase of the resulting works, supplies or services provided that they correspond to the performance levels and maximum costs agreed between the utility and the partners.

(3) The estimated value of works, supplies or services must not be disproportionate in relation to the investment required for their development.

(4) The innovation partnership must be structured in successive phases following the sequence of steps in the research and innovation process, which may include the manufacturing of the products, the provision of the services or the completion of the works.

(5) The innovation partnership must set intermediate targets to be attained by the partners and provide for payment of the remuneration in appropriate instalments.

(6) Based on those targets, the utility may decide after each phase to—

(a) terminate the innovation partnership; or

(b) in the case of an innovation partnership with several partners, reduce the number of partners by terminating individual contracts,

provided that the utility has indicated in the procurement documents those possibilities and the conditions for their use.

(7) In the procurement of an innovation partnership, a utility must permit any economic operator to submit a request to participate in response to a call for competition in accordance with regulation 42(5)(b) or (c) (choice of procedures) within the time period set by the utility in accordance with this regulation.

(8) A request by an economic operator referred to in paragraph (7) must be accompanied by the information for qualitative selection that is requested by the utility.

(9) In the procurement documents, the utility must—

(a) identify the subject matter of the procurement by providing the description of the utility’s need for innovative works, products or services that cannot be met by purchasing works, products or services already available on the market;

(b) indicate which elements of this description define the minimum requirements to be met by all tenders;

(d) define the arrangements applicable to intellectual property rights.

(10) The information provided by the utility in accordance with paragraph (9) must be sufficiently precise to enable economic operators to identify the nature and scope of the required solution and decide whether to request to participate in the procedure.

(11) The minimum time period for the receipt of requests to participate—

(a) other than in exceptional circumstances, shall be 30 days from the date on which the contract notice is submitted for publication; and

(b) shall, in any event, not be less than 15 days from that date.

(12) A utility may limit the number of suitable candidates to be invited to participate in the procedure in accordance with regulation 76(2) (criteria for qualitative selection).

(13) In selecting candidates, a utility must, in particular, apply criteria concerning the candidates’ capacity in the field of research and development and of developing and implementing innovative solutions.

(14) Only those economic operators invited to do so by the utility following its assessment of the requested information may participate in the procedure and submit research and innovation projects aimed at meeting the needs identified by the utility that cannot be met by existing solutions.

(15) A utility must negotiate with tenderers the initial and all subsequent tenders submitted by them, except for the final tender, to improve their content.

(16) A utility must not negotiate the minimum requirements or the award criteria referred to in paragraph (9).

(17) During the negotiations, a utility—

(a) must ensure equal treatment of all tenderers;

(b) must not provide information in a discriminatory manner which may give some tenderers an advantage over others;

(c) must, in writing, inform all tenderers whose tenders have not been eliminated of any changes to the technical specifications or other procurement documents; and

(d) must provide sufficient time following any such changes for all tenderers referred to in paragraph (c) to modify and re-submit amended tenders as appropriate.

(18) In accordance with regulation 37 (confidentiality), a utility must not reveal to the other participants confidential information communicated by a candidate or tenderer participating in the negotiations without the candidate or tenderer’s agreement.

(19) Any agreement referred to in paragraph (18) must not take the form of a general waiver but must be given with reference to the intended communication of specific information.

(20) A utility may conduct negotiations during innovation partnership procedures in successive stages in order to reduce the number of tenders to be negotiated only by applying the award criteria specified in the contract notice ... or another procurement document.

(21) The utility must indicate in the contract notice or in another procurement document whether it will use the option described in paragraph (20).

(22) The contracts must be awarded on the sole basis of the best price-quality ratio in accordance with regulation 80 (contract award criteria).

(23) The utility must ensure that the structure of the partnership and, in particular, the duration and value of the different phases reflect the degree of innovation of the proposed solution and the sequence of the research and innovation activities required for the development of an innovative solution not yet available on the market.

(24) In the case of an innovation partnership with several partners, the utility must not, in accordance with regulation 37 (confidentiality), reveal to the other partners solutions proposed or other confidential information communicated by a partner in the framework of the partnership without that partner’s agreement.

(25) Any agreement referred to in paragraph (24) must not take the form of a general waiver but must be given with reference to the intended communication of specific information.

Use of the negotiated procedure without prior call for competition

48

(1) A utility may award a contract following a negotiated procedure without prior publication of a call for competition in any of the following cases—

(a) where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to a procedure with a call for competition, provided that the initial conditions of the contract are not substantially altered;

(b) where the contract is—

(i) purely for the purpose of research, experiment, study or development; and

(ii) not for the purpose of securing a profit or of recovering research and development costs,

insofar as the award of such contract does not prejudice the competitive award of subsequent contracts which do seek the ends referred to in paragraph (ii); or

(c) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons—

(i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;

(ii) competition is absent for technical reasons;

(iii) the protection of exclusive rights, including intellectual property rights,

but only, in the case of paragraphs (ii) and (iii), where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;

(d) where (but only if it is strictly necessary) for reasons of extreme urgency brought about by events unforeseeable by the utility, the time limits for open procedure, restricted procedure or negotiated procedure with prior call for competition cannot be complied with.

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

(a) a tender shall be considered not to be suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the utility’s needs and requirements as specified in the procurement documents; and

(b) a request to participate shall be considered not to be suitable where the economic operator concerned—

(i) has been or would be excluded under regulation 76(1) (criteria for qualitative selection) or 78 (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations); or

(ii) does not meet the selection criteria.

(3) For the purposes of paragraph (1)(d), the circumstances invoked to justify extreme urgency must not, in any event, be attributable to the utility.

Specific rules based on type of contract4A utility may award a contract following a negotiated procedure without prior publication of a call for competition—ain the case of supply contracts, where the products involved are for additional deliveries by the original supplier which are intended either as—ia partial replacement of supplies or installations; oriithe extension of existing supplies or installations,where a change of supplier would require the utility to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance;bfor supplies quoted and purchased on a commodity market;cfor purchases of supplies or services on particularly advantageous conditions, from either a supplier which is definitively winding up its business activities or the liquidator in an insolvency procedure, an arrangement with creditors or a similar procedure under national laws or regulations;dfor bargain purchases, where it is possible to procure supplies by taking advantage of a particularly advantageous opportunity available for a very short time at a price considerably lower than normal market prices;efor new works, services or both, consisting of the repetition of similar works or services entrusted to the contractor to which the utility awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded pursuant to a procedure in accordance with regulation 42(1) (choice of procedures);ffor a service contract which follows a design contest organised in accordance with these Regulations and which is to be awarded, under the rules provided for in the design contest, to the winner or to one of the winners of the design contest.5For the purposes of paragraph (4)(e)—athe basic project must have indicated the extent of possible additional works or services and the conditions under which they would be awarded;bthe possible use of this procedure must have been disclosed in the procurement documents; andcthe total estimated cost of these subsequent works or services must have been taken into consideration by the utility when applying regulations 15 (thresholds) and 16 (methods for calculating the estimated value) in relation to the original contract.6For the purposes of paragraph (4)(f), where there is more than one winner of the design contest all of the winners must be invited to participate in the negotiation.

CHAPTER 2 — TECHNIQUES AND INSTRUMENTS FOR ELECTRONIC AND AGGREGATED PROCUREMENT

Framework Agreements

49

(1) A utility may conclude a framework agreement, provided that the utility applies the procedures provided for in these Regulations.

(2) The term of a framework agreement must not exceed 8 years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.

(3) A contract based on a framework agreement must be awarded on the basis of objective rules and criteria.

(4) For the purposes of paragraph (3), the objective rules and criteria must—

(a) be set out in the procurement documents for the framework agreement; and

(b) ensure equal treatment of the economic operators who are party to the framework agreement.

(5) The award of a contract referred to in paragraph (3) may include reopening the competition among those economic operators party to the framework agreement as concluded and, if so, a utility must—

(a) set a time limit which is sufficiently long to allow tenders for each specific contract to be submitted; and

(b) award each contract to the tenderer that has submitted the most economically advantageous tender on the basis of the award criteria set out in the specifications of the framework agreement.

(6) A utility must not use a framework agreement improperly or in such a way as to prevent, restrict or distort competition.

Dynamic Purchasing Systems

50

(1) A utility may use a dynamic purchasing system for commonly used purchases the characteristics of which, as generally available on the market, meet the utility’s requirements.

(2) The dynamic purchasing system must—

(a) be operated as a completely electronic process; and

(b) be open, throughout the period of validity of the system, to any economic operator that satisfies the selection criteria.

(3) The dynamic purchasing system may be divided into categories of works, supplies or services that are objectively defined on the basis of characteristics of the procurement to be undertaken under the category concerned.

(4) The characteristics referred to in paragraph (3) may include reference to either or both of—

(a) the maximum allowable size of the subsequent specific contracts; and

(b) a specific geographic area in which subsequent specific contracts will be performed.

(5) In order to procure under a dynamic purchasing system, a utility must follow the restricted procedure, and accordingly the provisions of regulation 44 (restricted procedure) apply, subject to the provisions of this regulation.

(6) Where a utility has divided the system into categories of works, supplies or services in accordance with paragraph (3), the utility must specify the applicable selection criteria for each category.

(7) A utility must admit to a dynamic purchasing system all of the candidates satisfying the selection criteria and must not limit the number of candidates to be admitted whether under regulation 76(2) (criteria for qualitative selection) or otherwise.

(8) The minimum time period for receipt of requests to participate—

(a) other than in exceptional circumstances, shall be 30 days from the date on which—

(i) the contract notice is submitted for publication; ...

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) shall, in any event, be 15 days from such date.

(9) No further time limits for receipt of requests to participate shall apply once the invitation to tender for the first specific procurement under the dynamic purchasing system has been sent.

(10) The minimum time period for receipt of tenders shall be 10 days from the date on which the invitation to tender is sent.

(11) A utility must, throughout the period of validity of the dynamic purchasing system, give any economic operator the possibility of requesting to participate in the system under the conditions referred to in paragraphs (5) to (10).

(12) A utility must finalise evaluation of such requests in accordance with the selection criteria within 10 working days following their receipt.

(13) The deadline referred to in paragraph (12) may be extended to a maximum of 15 working days in individual cases where justified, in particular because of the need to examine additional documentation or otherwise to verify whether the selection criteria are met.

(14) Despite paragraphs (12) and (13), as long as the invitation to tender for the first specific procurement under the dynamic purchasing system has not been sent, a utility may extend the evaluation period provided that no invitation to tender is issued during the extended evaluation period.

(15) Where a utility intends to extend the evaluation period in accordance with paragraph (14), the utility must indicate in the procurement documents the length of the extended period that the utility intends to apply.

(16) A utility must inform the economic operator concerned at the earliest possible opportunity of whether or not it has been admitted to the dynamic purchasing system.

(17) A utility must invite all admitted participants to submit a tender for each specific procurement under the dynamic purchasing system, in accordance with regulation 72 (invitations to candidates).

(18) Where the dynamic purchasing system has been divided into categories of works, supplies or services pursuant to paragraph (3), a utility must invite every relevant participant to submit a tender.

(19) In paragraph (18), “relevant participants” means economic operators which have been admitted to the dynamic purchasing system in relation to the category corresponding to the specific procurement concerned.

(20) For the purposes of awarding contracts under a dynamic purchasing system, a utility must—

(a) publish a call for competition which—

(i) makes it clear that a dynamic purchasing system is involved; and

(ii) indicates the period of validity of the dynamic purchasing system;

(b) indicate in the procurement documents at least the nature and estimated quantity of the purchases envisaged, as well as all the necessary information concerning the dynamic purchasing system, including how the system operates, the electronic equipment used and the technical connection arrangements and specifications;

(c) indicate in the procurement documents any division into categories of works, supplies or services and the characteristics defining them; and

(d) throughout the period of validity of the system, offer unrestricted and full direct access to the procurement documents in accordance with regulation 71 (electronic availability of procurement documents).

(21) A utility must award the contract to the tenderer that submitted the most economically advantageous tender on the basis of the award criteria set out in—

(a) the contract notice for the dynamic purchasing system;

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

(c) where a notice on the existence of a qualification system is used as a means of calling for competition, in the invitation to tender.

(22) For the purposes of paragraph (21), those criteria, where appropriate, may be formulated more precisely in the invitation to tender.

(23) A utility which, in accordance with regulation 78 (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations), applies exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations may, at any time throughout the period of validity of the dynamic purchasing system, require admitted participants to submit a renewed SPD as provided for in regulation 60(1) of those Regulations within 5 working days from the date on which that request is transmitted.

(24) Regulation 60(7) to (10) of the Public Contracts (Scotland) Regulations applies throughout the period of validity of the dynamic purchasing system.

(25) Where the period of validity is changed without terminating the dynamic purchasing system, the utility must submit for publication on the UK e-notification service a notice of the kind used initially for the call for competition for the dynamic purchasing system.

(25A) Where a dynamic purchasing system is terminated before the end of the period of validity that had most recently been indicated under paragraph (20)(a)(ii) or (25), the utility must submit for publication on the UK e-notification service a contract award notice under regulation 68.

(26) No charges may be made to any economic operators which are interested in or are a party to the dynamic purchasing system.

(27) All communications in the context of a dynamic purchasing system must only be made by electronic means in accordance with regulation 38(1) to (7) and (11) to (20) (rules applicable to communication).

Electronic Auctions

51

(1) A utility may use electronic auctions, in which economic operators present one or both of the following—

(a) new prices, revised downwards;

(b) new values concerning certain elements of tenders.

(2) A utility must structure the electronic auction as a repetitive electronic process, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.

(3) Electronic auctions must not be used for works or service contracts which have as their subject-matter intellectual activities (such as the design of works) which cannot be ranked using automatic evaluation methods.

(4) A utility which decides to hold an electronic auction must state that fact in the—

(a) contract notice;

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

(c) where a notice on the existence of a qualification system is used as a means of calling for competition, in the invitation to tender.

(5) In open or restricted procedures or negotiated procedures with a prior call for competition, when the content of the procurement documents, in particular the technical specifications, can be established with precision, a utility may—

(a) decide that the award of a contract shall be preceded by an electronic auction;

(b) hold an electronic auction—

(i) on the reopening of competition among the parties to a framework agreement as provided for in regulation 49(5) (framework agreements); or

(ii) on the opening for competition of contracts to be awarded under a dynamic purchasing system.

(6) The electronic auction must be based—

(a) on prices only where the contract is awarded on the basis of price only; and

(b) on prices, on the new values of the features of the tenders indicated in the procurement documents or on both, where the contract is awarded on the basis of the best price-quality ratio or to the tender with the lowest cost using a cost effectiveness approach.

(7) Where a utility has decided to hold an electronic auction, the procurement documents must include at least the following—

(a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;

(b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;

(c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;

(d) relevant information concerning the electronic auction process;

(e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding; and

(f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.

(8) Before proceeding with an electronic auction, a utility must make a full initial evaluation of the tenders in accordance with the award criteria and the weighting fixed for them.

(9) A tender must be considered admissible where—

(a) it has been submitted by a tenderer who has not been excluded pursuant to regulation 76(1) (criteria for qualitative selection) or 78 (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations) and who meets the selection criteria; and

(b) it is in conformity with the technical specifications without being irregular, unacceptable or unsuitable.

(10) A tender must be considered to be irregular for the purposes of paragraph (9)(b) where—

(a) it does not comply with the procurement documents;

(b) it was received late;

(d) it has been found by the utility to be abnormally low.

(11) A tender must be considered to be unacceptable for the purposes of paragraph (9)(b) where—

(a) it was submitted by a tenderer which does not have the required qualifications; or

(b) the price tendered exceeds the utility’s budget as determined and documented prior to the commencement of the procurement.

(12) A tender must be considered unsuitable for the purpose of paragraph (9)(b) where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the utility’s needs and requirements as specified in the procurement documents.

(13) All tenderers that have submitted admissible tenders must be invited simultaneously, by electronic means, to participate in the electronic auction using, as of the date and time specified in the invitation, the technical connection arrangements referred to in accordance with the instructions set out in the invitation.

(14) The electronic auction may take place in a number of successive phases.

(15) The electronic auction must not start sooner than 2 working days after the date on which invitations are sent out.

(16) The invitation must be accompanied by the outcome of a full evaluation of the relevant tender, carried out in accordance with the weighting provided for in regulation 80(9) to (11) (contract award criteria).

(17) The invitation must also state the mathematical formula to be used in the electronic auction to determine the automatic re-rankings on the basis of the new prices or new values submitted, or both.

(18) The formula referred to in paragraph (17) must incorporate the weighting of all the criteria established to determine the most economically advantageous tender, as indicated in the notice used as a means of calling for competition or in other procurement documents.

(19) For the purpose of paragraph (18), any ranges of weightings must be reduced beforehand to a specified value.

(20) Where variants are authorised in accordance with regulation 62 (variants) a separate formula must be provided for each variant.

(21) Throughout each phase of an electronic auction the utility must instantaneously communicate to all tenderers at least sufficient information to enable the tenderers to ascertain their relative rankings at any moment.

(22) A utility may, where this has been previously indicated, communicate information concerning other prices or values submitted.

(23) A utility may also, at any time, announce the number of participants in the current phase of the auction.

(24) In no case, however, may a utility disclose the identities of the tenderers during any phase of an electronic auction.

(25) A utility must close an electronic auction—

(a) at the previously indicated date and time;

(b) when the utility receives no more new prices or new values which meet the requirements concerning minimum differences specified in accordance with paragraph (7)(e), provided that the utility has previously stated the time which they will allow to elapse after receiving the last submission before they close the electronic auction;

(26) Where the utility intends to close an electronic auction in accordance with paragraph (25)(c), whether or not in combination with any arrangements laid down in paragraph (25)(b), the utility must indicate in the invitation to participate in the auction the timetable for each phase of the auction.

(27) After closing an electronic auction, a utility shall award the contract in accordance with regulation 80 (contract award criteria) on the basis of the results of the electronic auction.

Electronic catalogues

52

(1) Where the use of electronic means of communication is required, a utility may require tenders to be presented in the format of an electronic catalogue or to include an electronic catalogue.

(2) Tenders presented in the form of an electronic catalogue may be accompanied by other documents, completing the tender.

(3) Electronic catalogues must be established by the candidates or tenderers with a view to participating in a given procurement in accordance with the technical specifications and format established by the utility.

(4) Electronic catalogues must also comply with the requirements for electronic communication tools set out in regulation 38 (rules applicable to communication) as well as with any additional requirements set by the utility in accordance with that regulation.

(5) Where the presentation of tenders in the form of electronic catalogues is accepted or required, a utility must—

(a) state that to be the case in—

(i) the contract notice;

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) where the means of calling for competition is a notice on the existence of a qualification system, the invitation to tender or negotiate; and

(b) indicate in the procurement documents all the necessary information pursuant to regulation 38(16) to (25) (rules applicable to communication) concerning the format, the electronic equipment used and the technical connection arrangements and specifications for the catalogue.

(6) Where a framework agreement has been concluded with more than one economic operator following the submission of tenders in the form of electronic catalogues, a utility may provide that the reopening of competition for a specific contract is to take place on the basis of updated catalogues.

(7) Where a utility requires updated catalogues in accordance with paragraph (6), the utility must—

(a) invite tenderers to resubmit their electronic catalogues, adapted to the requirements of the contract in question; or

(b) notify tenderers that the utility intends to collect from the electronic catalogues which have already been submitted the information needed to constitute tenders adapted to the requirements of the contract in question, provided that the use of that method has been indicated in the procurement documents for the framework agreement.

(8) Where a utility reopens competition for a specific contract in accordance with paragraph (7)(b), the utility must—

(a) notify tenderers of the date and time at which the utility intends to collect the information needed to constitute tenders adapted to the requirements of the specific contract in question; and

(b) allow tenderers to refuse such collection of information.

(9) A utility must allow an adequate period of time between the notification referred to in paragraph (8)(a) and the collection of information.

(10) Before awarding the contract, a utility must present the collected information to the tenderer concerned and give the tenderer the opportunity to contest or confirm that the tender thus constituted does not contain any material errors.

(11) A utility may award a contract based on a dynamic purchasing system by requiring that offers for a specific contract are to be presented in the format of an electronic catalogue.

(12) A utility may also award a contract based on a dynamic purchasing system in accordance with paragraphs (7)(b) and (8) to (10) provided that the request for participation in the dynamic purchasing system is accompanied by an electronic catalogue in accordance with the technical specifications and format established by the utility.

(13) For the purpose of paragraph (12), the catalogue must be completed subsequently by the candidates, when they are informed of the utility’s intention to constitute tenders by means of the procedure set out in paragraph (7)(b).

Centralised purchasing activities and central purchasing bodies

53

(1) A utility may acquire supplies and services from a central purchasing body offering the centralised purchasing activity referred to in regulation 2(1).

(2) A utility may acquire works, supplies and services, or any one or more of them, by using—

(a) a contract awarded to the utility by a central purchasing body;

(b) a dynamic purchasing system operated by a central purchasing body; or

(3) Where a dynamic purchasing system which is operated by a central purchasing body may be used by another utility, this must be mentioned in the call for competition setting up that dynamic purchasing system.

(4) Subject to paragraph (5), where a utility makes an acquisition in accordance with paragraphs (1) or (2), the utility fulfils its obligations under these Regulations in relation to such acquisition.

(5) A utility referred to in paragraph (4) is responsible for fulfilling the obligations imposed by these Regulations in respect of any part of the procedure that the utility conducts itself, such as—

(a) awarding a contract under a dynamic purchasing system which is operated by a central purchasing body;

(b) conducting a reopening of competition under a framework agreement that has been concluded by a central purchasing body.

(6) A procurement conducted by a central purchasing body must be performed using electronic means of communication, in accordance with the requirements set out in regulation 38 (rules applicable to communication).

(7) A utility may, without applying the procedures provided for in these Regulations, award a service contract for the provision of centralised purchasing activities to a central purchasing body.

(8) A service contract referred to in paragraph (7) may also include the provision of an ancillary purchasing activity.

(9) Procurement carried out by a central purchasing body in order to perform a centralised purchasing activity shall be deemed to be procurement for the pursuit of an activity referred to in regulations 8 to 14.

Occasional joint procurement

54

(1) Two or more utilities may agree to perform a certain specific procurement jointly.

(2) A utility shall be jointly responsible for fulfilling their obligations under these Regulations where—

(a) the conduct of a procurement in its entirety is carried out jointly in the name of and on behalf of all the utilities concerned; or

(b) one utility manages the procedure, acting on its own behalf and on behalf of the other utilities concerned.

(3) Where the conduct of a procurement is not in its entirety carried out in the name of and on behalf of the utilities concerned—

(a) the utilities shall be jointly responsible only for those parts carried out jointly; and

(b) each utility shall have sole responsibility for fulfilling its obligations under these Regulations in respect of the parts it conducts in its own name and on its own behalf.

Procurement involving utilities from different member States

55

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

CHAPTER 3 — CONDUCT OF THE PROCEDURE

SECTION 1 — Preparation

Preliminary market consultation

56

(1) Before commencing a procurement, a utility may conduct a market consultation with a view to preparing the procurement and informing economic operators of the utility’s procurement plans and requirements.

(2) For this purpose, a utility may act as it considers appropriate, including seeking or accepting advice from independent experts or authorities or from market participants.

(3) Such advice may be used in the planning and conduct of the procurement, provided that it does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency.

Prior involvement of candidates or tenderers

57

(1) A utility must take appropriate measures to ensure that competition is not distorted by the participation of a candidate or tenderer where that candidate or tenderer, or an undertaking related to that candidate or tenderer—

(a) has advised the utility, whether in the context of regulation 56 (preliminary market consultation) or not; or

(b) has otherwise been involved in the preparation of the procurement.

(2) Such measures must include—

(a) the communication to the other candidates and tenderers of relevant information exchanged in the context of or resulting from the involvement of the candidate or tenderer in the preparation of the procurement; and

(b) the fixing of adequate time limits for the receipt of tenders.

(3) A candidate or tenderer in a situation referred to in paragraph (1) may only be excluded from the procedure for the purposes of paragraph (1) where there are no other means to ensure compliance with the duty referred to in regulation 34(1) (principles of procurement).

(4) Prior to any such exclusion, a candidate or tenderer must be given the opportunity to prove that their involvement in preparing the procurement is not capable of distorting competition.

(5) The measures taken must be documented in the report referred to in regulation 96 (reporting and documentation requirements).

Technical specifications

58

(1) The technical specifications must—

(a) be set out in the procurement documents; and

(b) lay down the characteristics required of any works, supply or service.

(2) In the case of a works contract, technical specifications define any characteristics required of a material, product or supply so that it fulfils the use for which it is intended by the utility.

(3) The characteristics referred to in paragraph (2) may include—

(a) levels of environmental and climate performance;

(b) design for all requirements (including accessibility for disabled persons) and conformity assessment;

(d) terminology;

(e) symbols;

(f) testing and test methods;

(g) packaging, marking and labelling;

(h) user instructions;

(i) production processes and methods at any stage of the life cycle of the works;

(j) rules relating to design and costing and the test, inspection and acceptance conditions for works; and

(k) methods or techniques of construction and all other technical conditions which the utility is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve.

(4) In the case of a supply or service contract, the required characteristics may include—

(a) quality levels;

(b) environmental and climate performance levels;

(d) performance, use of the product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold;

(e) terminology;

(f) symbols;

(g) testing and test methods;

(h) packaging, marking and labelling;

(i) user instructions;

(j) production processes and methods at any stage of the life cycle of the supply or service; and

(k) conformity assessment procedures.

(5) In the case of any contract, the required characteristics may also refer to—

(a) the specific process or method of production or provision of the requested works, supplies or services;

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

even where such factors do not form part of the contract’s material substance provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives.

(6) The technical specifications may also specify whether the transfer of intellectual property rights will be required.

(7) Where the subject of the procurement is intended for use by natural persons, whether the general public or staff of the utility, the technical specifications must, except in duly justified cases, be drawn up so as to take into account accessibility criteria for persons with disabilities or design for all users.

(8) Where mandatory accessibility requirements are imposed by assimilated law, technical specifications must, as far as accessibility criteria for persons with disabilities or design for all users are concerned, be defined by reference thereto.

(9) Technical specifications must afford equal access of economic operators to the procurement and must not have the effect of creating unjustified obstacles to the opening up of procurement to competition.

(10) Without prejudice to mandatory national technical rules, to the extent that they are compatible with assimilated law, the technical specifications must be formulated—

(a) in terms of performance or functional requirements, including environmental characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow the utility to award the contract;

(b) by reference to any of the following technical specifications in the following order of precedence—

(i) national standards transposing European standards;

(ii) European Technical Assessments;

(iii) common technical specifications;

(iv) international standards;

(v) other technical reference systems established by the European standardisation bodies; or

(vi) when none of the above exist, national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies,

but each reference must be accompanied by the words ‘or equivalent’;

(c) in terms of performance or functional requirements as referred to in sub-paragraph (a), with reference to the technical specifications referred to in sub-paragraph (b) as a means of presuming conformity with such performance or functional requirements; or

(d) by reference to the technical specifications referred to in sub-paragraph (b) for certain characteristics and by reference to the performance or functional requirements referred to in sub-paragraph (a) for other characteristics.

(11) Subject to paragraph (12), technical specifications must not, with the effect of favouring or eliminating certain undertakings or certain products, refer to—

(a) a specific make or source;

(b) a particular process which characterises the products or services provided by a specific economic operator; or

(12) Reference of a kind referred to in paragraph (11) is permitted in any of the following circumstances—

(a) where justified by the subject-matter of the contract;

(b) on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraph (10) is not possible, in which case the reference must be accompanied by the words “or equivalent”.

(13) Where a utility formulates technical specifications in terms of performance or functional requirements in accordance with paragraph (10)(a), it must not reject a tender for works, supplies or services which complies with a technical specification of a kind mentioned in paragraph (10)(b)(i) to (v), where those specifications address the performance or functional requirements which it has laid down.

(14) Where a utility formulates technical specifications in accordance with paragraph (10)(b), it must not reject a tender on the grounds that the works, supplies or services tendered for do not comply with the technical specifications to which it has referred, where the tenderer proves in its tender by any appropriate means, including the means of proof referred to in regulation 60 (test reports, certificates and other means of proof), that the solution proposed satisfies in an equivalent manner the requirements defined by the technical specifications.

(15) In its tender, the tenderer must prove by any appropriate means, including those referred to in regulation 60 (test reports, certificates and other means of proof), that the works, supply or service in compliance with the standard meets the performance or functional requirements of the utility.

Labels

59

(1) Where a utility intends to purchase works, supplies or services with specific environmental, social or other characteristics the utility may, in the technical specifications, the award criteria or the contract performance conditions, require a specific label as means of proof that the works, supplies or services correspond to the required characteristics, provided that all of the following conditions are fulfilled—

(a) the label requirements only concern criteria which are linked to the subject-matter of the contract and are appropriate to define characteristics of the works, supplies or services;

(b) the label requirements are based on objectively verifiable and non-discriminatory criteria;

(c) the label is established in an open and transparent procedure in which all relevant stakeholders, including government bodies, consumers, social partners, manufacturers, distributors and non-governmental organisations, may participate;

(d) the label is accessible to all interested parties; and

(e) the label requirements are set by a third party over whom the economic operator applying for the label cannot exercise a decisive influence.

(2) Where a utility does not require the works, supplies or services to meet all of the label requirements, the utility must indicate which label requirements are required.

(3) A utility requiring a specific label must accept all labels that confirm that the works, supplies or services meet equivalent label requirements.

(4) Where an economic operator had demonstrably no possibility of obtaining the specific label indicated by the utility, or an equivalent label, within the relevant time limits for reasons that are not attributable to that economic operator, the utility must accept other appropriate means of proof, which may include a technical dossier from the manufacturer, provided that the economic operator concerned proves that the works, supplies or services to be provided by it fulfil the requirements of the specific label or the specific requirements indicated by the utility.

(5) Where a label fulfils the conditions mentioned in paragraph (1)(b) to (e) but also sets out requirements not linked to the subject-matter of the contract, a utility must not require the label but may define the technical specification by reference to those of the detailed specifications of that label or, parts of it where necessary, that are linked to the subject-matter of the contract and are appropriate to define characteristics of that subject-matter.

Test reports, certificates and other means of proof

60

(1) A utility may require an economic operator to provide a test report from a conformity assessment body or a certificate issued by such a body as means of proof of conformity with requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions.

(2) Where a utility requires the submission of certificates drawn up by a specific conformity assessment body, certificates from other equivalent conformity assessment bodies must also be accepted by the utility.

(3) In paragraphs (1) and (2), “conformity assessment body” means a body that performs conformity assessment activities including calibration, testing, certification and inspection accredited in accordance with Regulation (EC) No 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 [^f00042].

(4) Where the economic operator concerned has no access to the certificates or test reports referred to in paragraphs (1) and (2), or no possibility of obtaining them within the relevant time limits, a utility must accept appropriate means of proof other than those referred to in paragraphs (1) and (2), such as a technical dossier of the manufacturer, provided that—

(a) the lack of access is not attributable to the economic operator concerned; and

(b) the means of proof provided by the economic operator concerned proves that the works, supplies or services provided by it meet the requirements or criteria set out in the technical specifications, the award criteria or the contract performance conditions.

Communication of technical specifications

61

(1) On request from an economic operator interested in obtaining a contract, a utility must make available—

(a) the technical specifications regularly referred to in their works, supplies or service contracts; ...

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

(2) Subject to paragraph (3), the technical specifications referred to in paragraph (1) must be made available by electronic means of communication through unrestricted and full direct access free of charge.

(3) Technical specifications must be transmitted by means other than electronic means where unrestricted and full direct access free of charge by electronic means to certain procurement documents cannot be offered—

(a) for one of the reasons set out in regulations 38(3) or (5) (rules applicable to communication); or

(b) because the utility intends to apply regulation 37(3) (confidentiality).

(4) Where the technical specifications are based on documents available by electronic means through unrestricted and full direct access free of charge to interested economic operators, the inclusion of a reference to those documents must be sufficient.

Variants

62

(1) A utility may authorise or require tenderers to submit variants which meet the minimum requirements laid down by the utility.

(2) A utility must indicate in the procurement documents whether or not they authorise or require variants.

(3) A utility authorising or requiring variants must state in the procurement documents the minimum requirements to be met by the variants and any specific requirements for their presentation, in particular whether variants may be submitted only where the economic operator also submits a tender which is not a variant.

(4) A utility must not take into consideration a variant which—

(a) has not been authorised or required;

(b) is not linked to the subject matter of the contract; or

(5) A utility must ensure that the award criteria can be applied to variants meeting those minimum requirements as well as to tenders which are not variants.

(6) In a procedure for awarding a supply contract or service contract, a utility that has authorised or required variants must not reject a variant on the sole ground that it would, where successful, lead to either a service contract rather than a supply contract or a supply contract rather than a service contract.

Division of contracts into lots

63

(1) A utility may decide to award a contract in the form of separate lots and may determine the size and subject-matter of such lots.

(2) Where a utility decides to award a contract in the form of separate lots it must indicate in the contract notice ... or, where the means of a call for competition is a notice on the existence of a qualification system, in the invitation to tender or negotiate, whether tenders may be submitted for one, for several or for all of the lots.

(3) A utility may, even where tenders may be submitted for several or all lots, limit the number of lots that may be awarded to one tenderer, provided that the maximum number of lots per tenderer is stated in the contract notice or in the invitation ... to tender or to negotiate.

(4) A utility must indicate in the procurement documents the objective and non‑discriminatory criteria or rules it intends to apply for determining which lots will be awarded where the application of the award criteria would result in one tenderer being awarded more lots than the maximum number.

(5) Where more than one lot may be awarded to the same tenderer, a utility may award contracts combining several or all lots where the utility has—

(a) specified in the contract notice or in the invitation ... to tender or to negotiate that it reserves the possibility of doing so; and

(b) indicated the lots or groups of lots that may be combined.

Setting time limits

64

(1) When fixing the time limits for the receipt of tenders and requests to participate, a utility must take account of the complexity of the contract and the time required for drawing up tenders, without prejudice to the minimum time limits set out in regulations 43 to 47.

(2) Where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the procurement documents, the time limits for the receipt of tenders, which shall be longer than the minimum time limits set out in regulations 43 to 47, must be fixed so that all economic operators concerned may be aware of all the information needed to produce tenders.

(3) A utility must extend the time limits for the receipt of tenders, so that all economic operators concerned may be aware of all the information needed to produce tenders, where—

(a) for whatever reason, additional information, although requested by the economic operator in good time, is not supplied at the latest 6 days before the time limit fixed for the receipt of tenders; or

(b) significant changes are made to the procurement documents.

(4) In the case of an accelerated open procedure, the period mentioned in paragraph (3)(a) shall be 4 days.

(5) The length of the extension given pursuant to paragraph (3) must be proportionate to the importance of the information or change.

(6) A utility is not required to extend the time limit where—

(a) additional information has not been requested in good time; or

(b) the additional information requested is of insignificant importance with a view to preparing responsive tenders.

SECTION 2 — Publication and transparency

Periodic indicative notices

65

(1) A utility may make known its intentions of a planned procurement through the publication of a periodic indicative notice.

(2) A periodic indicative notice must contain the information set out in section I of Part A of Annex VI to the Utilities Contracts Directive , but as if both references to “dispatch of the notice” in paragraph 4 were references to the submission of the notice to the UK e-notification service for the purposes of these Regulations.

(3) A utility wishing to publish a periodic indicative notice must—

(a) submit it for publication in accordance with regulation 69 (publication on the UK e-notification service); or

(b) publish it on the utility’s buyer profile in accordance with regulation 70 (publication at national level).

(4) Where the utility intends to publish the periodic indicative notice on its buyer profile, the utility must submit for publication, in accordance with regulation 69 (publication on the UK e-notification service), a notice of the publication on its buyer profile.

(5) The notice of publication referred to in paragraph (4) must contain the information set out in Part B of Annex VI to the Utilities Contracts Directive , but as if “date of dispatch” in paragraph 5 were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

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

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

(8) The period covered by a periodic indicative notice must be a maximum of 12 months from the date on which the notice is sent for publication.

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

Notices on the existence of a qualification system

66

(1) This regulation applies where a utility chooses to set up a qualification system in accordance with regulation 75 (qualification systems).

(2) The qualification system must be the subject of a notice ..., indicating the purpose of the qualification system and how to have access to the rules concerning its operation.

(2A) Such a notice must include the information set out in Annex X to the Utilities Contracts Directive, but as if, in paragraph 10, “Article 82” were a reference to regulation 80 of these Regulations.

(3) The utility must—

(a) indicate the period of validity of the qualification system in the notice on the existence of the system; and

(b) give notice of any change in the period of validity.

(4) The notification in paragraph (3)(b) must be made by submitting to the UK e-notification service—

(a) where the period of validity is changed without terminating the system, a notice on the existence of qualification systems; and

(b) where the system is terminated, a contract award notice referred to in regulation 68 (contract award notices).

Contract notices

67

(1) A contract notice must contain the information set out in the relevant part of Annex XI to the Utilities Contracts Directive, but as if—

(a) in paragraph 10 of Part A, “the third and fourth sub-paragraph of Article 73(1)” were a reference to regulation 71(4) and (5) of these Regulations (electronic availability of procurement documents)”,

(b) in—

(i) paragraph 19 of Part A,

(ii) paragraph 16 of Part B,

(iii) paragraph 15 of Part C,

“Article 82” were a reference to regulation 80 of these Regulations,

(i) paragraph 20 of Part A,

(ii) paragraph 18 of Part B,

(iii) paragraph 18 of Part C,

“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)”, and

(d) in—

(i) paragraph 22 of Part A,

(ii) paragraph 20 of Part B,

(iii) paragraph 20 of Part C,

“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) Such notices must be submitted for publication in accordance with regulation 69 (publication on the UK e-notification service).

Contract award notices

68

(1) Not later than 30 days after the award of a contract or conclusion of a framework agreement, a utility must submit for publication in accordance with regulation 69 (publication on the UK e-notification service) a contract award notice on the results of the procurement.

(2) A contract award notice must—

(a) contain the information set out in Annex XII to the Utilities Contracts Directive, but as if—

(i) in paragraph 5(b), “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)”,

(ii) in paragraph 5(c), “Article 50” were a reference to regulation 48 (use of the negotiated procedure without prior call for competition) of these Regulations,

(iii) in paragraph 9, “Article 50(h)” were a reference to regulation 48(4)(d) of these Regulations,

(iiia) in paragraph 12, for the words from “or the prices” to the end there were substituted “for the contract awarded”,

(iv) in paragraph 17, the words in brackets were omitted,

(v) in paragraph 19, “Article 64(1)” were a reference to regulation 62(1) (variants) of these Regulations,

(vi) in paragraph 20, “Article 84” were a reference to regulation 82 (abnormally low tenders) of these Regulations,

(vii) in paragraph 21, “date of transmission” 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) be submitted for publication in accordance with regulation 69 (publication on the UK e-notification service).

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

(4) In accordance with paragraph (5), a utility must submit for publication a contract award notice in respect of the award of a supply, service or works contract based on a framework agreement if the estimated value of the contract under the framework is equal to or greater than the threshold referred to in regulation 15(1) (thresholds) applicable to that type of contract.

(5) The utility must submit such notices for publication in accordance with regulation 69 (publication on the UK e-notification service) on a quarterly basis, within 30 days of the end of each quarter.

(6) In the case of the award of a contract based upon a dynamic purchasing system, a utility must either—

(a) submit for publication in accordance with regulation 69 (publication on the UK e-notification service) a contract award notice within 30 days after the award of each such contract; or

(b) group notices referred to in sub-paragraph (a) on a quarterly basis, in which case the utility must submit for publication in accordance with regulation 69 (publication on the UK e-notification service) the grouped notices within 30 days of the end of each quarter.

(7) A utility may withhold from publication information on the contract award or the conclusion of the framework agreement 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

(8) In the case of contracts for research and development services, the information in paragraph (2) concerning the nature and quantity of the services may be limited to—

(a) where the contract has been awarded by a negotiated procedure without a call for competition in accordance with regulation 48(1)(b) (use of the negotiated procedure without prior call for competition), the indication “R & D Services”; and

(b) where the contract has been awarded by a procedure with a call for competition, information at least as detailed as was indicated in the notice that was used as a means of calling for competition.

Form and manner of sending notices for publication at EU level

69

(1) The notices required by regulations 65 to 68 to be submitted for publication in accordance with this regulation must—

(a) be submitted to the UK e-notification service for publication; ...

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

(2) A utility must ensure that it is able to supply proof of the dates on which notices are submitted to the UK e-notification service for publication.

(3) Where the provider of the UK e-notification service has given the utility confirmation of ... the publication of the information submitted, indicating the date of that publication, that confirmation shall constitute proof of publication.

(4) A utility may submit notices in respect of works, supply or service contracts to the UK e-notification service for publication even where the utility is not required to do so by these Regulations ....

(5) In these Regulations, “the UK e-notification service” has the meaning given by regulation 52(5) of the Public Contracts (Scotland) Regulations,

(6) For the purposes of these Regulations, a notice of any description is submitted to the UK e-notification service if the information comprising the notice is entered in the portal in such form or manner as the portal requires and in compliance with any specific instructions given within the portal about the entry of information or any part of it.

Publication at national level

70

(1) In addition to the publication of the notices referred to in regulations 50 and 65 to 68 on the UK e-notification service, a utility may publish the information contained in such notices on the internet on a buyer profile.

(2) A buyer profile may also include—

(a) periodic indicative notices which are published on it pursuant to regulation 65(3)(b) (periodic indicative notices);

(b) information on on-going invitations to tender, scheduled purchases, contracts concluded, procedures cancelled; and

(c) any useful general information, such as a contact point, telephone and fax number, postal address and e-mail address.

(3) The notices referred to in regulations 50 and 65 to 68, and the information contained in them, must not be published otherwise than on the UK e-notification service before they are published on that service.

(4) Notwithstanding paragraph (3), publication may take place otherwise than on the UK e-notification service where a utility has not been notified of the publication on that service within 48 hours after the notice was submitted to that service.

(5) A notice published otherwise than on the UK e-notification service must not contain information other than that contained in the notice submitted to that service or published on a buyer profile, but must indicate the date of submission of the notice to that service or its publication on the buyer profile.

(6) Where a periodic indicative notice is to be published on a buyer profile—

(a) the periodic indicative notice may not be so published before the utility submits to the UK e-notification service the notice referred to in regulation 65(4) (periodic indicative notices); and

(b) the periodic indicative notice must indicate the date of that submission.

Electronic availability of procurement documents

71

(1) Subject to paragraph (2), a utility must offer on the internet unrestricted and full direct access free of charge to the procurement documents from the date of publication of a notice in accordance with regulation 69 (publication on the UK e-notification service) ....

(2) Where the means of calling for competition is a notice on the existence of a qualification system, the access referred to in paragraph (1) must be offered as soon as possible and at the latest when the invitation to tender or to negotiate is sent.

(3) The text of the notice or the invitation must specify the internet address at which the procurement documents are accessible.

(4) Where unrestricted and full direct access free of charge by electronic means to certain procurement documents cannot be offered for one of the reasons set out in regulation 38(3) (rules applicable to communication), a utility may indicate in the notice ... that the procurement documents concerned will be transmitted by means other than electronic means in accordance with the periods mentioned in paragraphs (7) and (8).

(5) Where unrestricted and full direct access free of charge by electronic means to certain procurement documents cannot be offered because a utility intends to apply regulation 37(3) (confidentiality), the utility must indicate, in one of the following, which measures, aimed at protecting the confidential nature of the information, the utility requires and how access can be obtained to the documents—

(a) the notice;

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

(c) where the means of calling for competition is a notice on the existence of a qualification system, the procurement documents.

(6) Where paragraph (4) or (5) applies, the time limit for the submission of tenders must be extended by 5 days, except—

(a) in a case of duly substantiated urgency referred to in regulation 43(5) (open procedure); or

(b) where the time limit is set by mutual agreement in accordance with regulation 44(6) (restricted procedure) or 45(6) (negotiated procedure with prior call for competition).

(7) Provided that it has been requested in good time, a utility must supply to all tenderers taking part in the procurement additional information relating to the specifications and any supporting documents, not later than 6 days before the time limit fixed for the receipt of tenders.

(8) In the case of an accelerated open procedure, the period mentioned in paragraph (7) shall not be later than 4 days before the time limit fixed for the receipt of tenders.

Invitations to candidates

72

(1) In a restricted procedure, a competitive dialogue procedure, an innovation partnership and a negotiated procedure with prior call for competition, an invitation by a utility to selected candidates or to participants to submit a tender must be issued simultaneously and in writing.

(2) In a competitive dialogue procedure, an innovation partnership and a negotiated procedure with or without prior call for competition, an invitation by a utility to selected candidates to participate must be issued simultaneously and in writing.

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

(4) The invitations required by paragraphs (1) and (2) must—

(a) include a reference to the electronic address at which the procurement documents have been made directly available by electronic means; or

(b) be accompanied by the procurement documents, where those documents have not been the subject of unrestricted and full direct access, free of charge, for the reasons referred to in regulation 71(4) or (5) (electronic availability of procurement documents) and have not already been made otherwise available.

(5) The invitations required by paragraphs (1) and (2) must also contain at least the following information—

(a) where tenders are to be submitted, the deadline for the receipt of the tenders, the address to which the tenders must be sent and the language or languages in which the tenders must be drawn up;

(b) in the case of competitive dialogue, the date and the address set for the start of consultation and the language or languages to be used;

(d) an indication of any documents to be attached;

(e) the criteria for the award of the contract, where they are not indicated in the notice on the existence of a qualification system used as a means of calling for competition;

(f) the relative weighting of criteria for the award of the contract or, where appropriate, the order of importance of such criteria, where they are not given in the contract notice, the notice on the existence of a qualification system or the specifications.

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

Informing applicants for qualification, candidates and tenderers

73

(1) A utility must as soon as possible after reaching a decision concerning the award of a contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system, inform each candidate and tenderer of the decision reached.

(2) Information provided in accordance with paragraph (1) must, where applicable, include the grounds for any decision—

(a) not to conclude a framework agreement;

(b) not to award a contract for which there has been a call for competition;

(d) not to implement a dynamic purchasing system.

(3) On request from the candidate or tenderer concerned, the utility must as soon as possible, and in any event within 15 days from receipt of a written request, inform—

(a) any unsuccessful candidate of the reasons for the rejection of its request to participate;

(b) any unsuccessful tenderer of the reasons for the rejection of its tender, including, for the cases referred to in regulation 58(13) and (14) (technical specifications), the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements;

(c) any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement; and

(d) any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers.

(4) A utility may decide to withhold certain information referred to in paragraphs (2) and (3), where the release of such 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) A utility which establishes and operates a system of qualification must—

(a) inform applicants of its decision as to qualification within a period of 6 months;

(b) if the decision as to qualification will take longer than 4 months from the presentation of an application, inform the applicant within 2 months of the application of—

(i) the reasons justifying the longer period; and

(ii) the date by which the application will be accepted or refused;

(c) inform applicants whose qualification is refused of the refusal decision and the reasons for that decision as soon as possible and no more than 15 days after the date of the refusal decision.

(6) A utility which establishes and operates a system of qualification must—

(a) base its reasons for decisions as to qualification on the criteria for qualification referred to in regulation 75(3) to (5) (qualification systems); and

(b) only bring the qualification of an economic operator to an end for reasons based on the criteria for qualification referred to in regulation 75(3) to (5) (qualification systems).

(7) Any intention to bring the qualification of an economic operator to an end must be notified in writing to the economic operator at least 15 days before the date on which the qualification is due to end, together with the reasons justifying the proposed action.

SECTION 3 — Choice of participants and award of contracts

General principles

74

(1) For the purpose of selecting participants in their procurement, a utility—

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