The Utilities Contracts (Scotland) Regulations 2016

• (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

• (c) might prejudice fair competition between economic operators.

• (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;

• (c) preparation of the procurement documents;

• (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;

• (c) the name of and, where practicable, the score obtained by the economic operator—

• (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

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

• (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

• (c) might prejudice fair competition between economic operators.

• (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

• (c) the establishment of a dynamic purchasing system.

• (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

• (c) the public interest.

• (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 1947³⁶ 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

• (c) the third ground for ineffectiveness referred to in paragraph (9) applies.

• (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;

• (c) resulting from the change of the economic operator performing the contract or framework agreement; and

• (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 1998³⁷.

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 2012³⁸.

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;

• (c) fax; or

• (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 Community³⁹ 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

SCHEDULE 2 — SOCIAL AND OTHER SPECIFIC SERVICES

CPV Code	Description
75200000-8; 75231200-6; 75231240-8; 79611000-0; 79622000-0 (Supply services of domestic help personnel); 79624000-4 (Supply services of nursing personnel) and 79625000-1 (Supply services of medical personnel) from 85000000-9 to 85323000-9; 98133100-5, 98133000-4; 98200000-5; 98500000-8 (Private households with employed persons) and 98513000-2 to 98514000-9 (Manpower services for households, Agency staff services for households, Clerical staff services for households, Temporary staff for households, Home-help services and Domestic services)	Health, social and related services
85321000-5 and 85322000-2, 75000000-6 (Administration, defence and social security services), 75121000-0, 75122000-7, 75124000- 1; from 79995000-5 to 79995200-7; from 80000000-4 Education and training services to 80660000-8; from 92000000-1 to 92700000-8; 79950000-8 (Exhibition, fair and congress organisation services), 79951000-5 (Seminar organisation services), 79952000-2 (Event services), 79952100-3 (Cultural event organisation services), 79953000-9 (Festival organisation services), 79954000-6 (Party organisation services), 79955000-3 (Fashion shows organisation services), 79956000-0 (Fair and exhibition organisation services)	Administrative social, educational, healthcare and cultural services
75300000-9	Compulsory social security services
75310000-2, 75311000-9, 75312000-6,75313000-3, 75313100-4, 75314000-0,75320000-5, 75330000-8, 75340000-1	Benefit services
98000000-3; 98120000-0; 98132000-7;98133110-8 and 98130000-3	Other community, social and personal services including services furnished by trade unions, political organisations, youth associations and other membership organisation services
98131000-0	Religious services
55100000-1 to 55410000-7; 55521000-8 to 55521200-0 (55521000-8 Catering services for private households, 55521100-9 Meals-on- wheels services, 55521200-0 Meal delivery service) 55520000-1 Catering services, 55522000-5 Catering services for transport enterprises, 55523000-2 Catering services for other enterprises or other institutions, 55524000-9 School catering services 55510000-8 Canteen services, 55511000-5 Canteen and other restricted-clientele cafeteria services, 55512000-2 Canteen management services, 55523100-3 School-meal services	Hotel and restaurant services
79100000-5 to 79140000-7; 75231100-5;	Legal services, to the extent not excluded by regulation 20(1)(d)
75100000-7 to 75120000-3; 75123000-4;75125000-8 to 75131000-3	Other administrative services and government services
75200000-8 to 75231000-4	Provision of services to the community
75231210-9 to 75231230-5; 75240000-0 To 75252000-7; 794300000-7; 98113100-9	Prison related services, public security and rescue services to the extent not excluded by regulation 20(1)(i)
79700000-1 to 79721000-4 (Investigation and security services, Security services, Alarm- monitoring services, Guard services, Surveillance services, Tracing system services, Absconder-tracing services, Patrol services, Identification badge release services, Investigation services and Detective agency services) 79722000-1(Graphology services), 79723000-8 (Waste analysis services)	Investigation and security services
98900000-2 (Services provided by extra- territorial organisations and bodies) and 98910000-5 (Services specific to international organisations and bodies)	International services
64000000-6 (Postal and telecommunications services), 64100000-7 (Post and courier services), 64110000-0 (Postal services), 64111000-7 (Postal services related to newspapers and periodicals), 64112000-4 (Postal services related to letters), 64113000-1 (Postal services related to parcels), 64114000-8 (Post office counter services), 64115000-5 (Mailbox rental), 64116000-2 (Post-restante services), 64122000-7 (Internal office mail and messenger services)	Postal services
50116510-9 (Tyre-remoulding services), 71550000-8 (Blacksmith services)	Miscellaneous services

SCHEDULE 3 — CONSEQUENTIAL AND MISCELLANEOUS AMENDMENTS TO SUBORDINATE LEGISLATION

Cleaner Road Transport Vehicles (Scotland) Regulations 2010

1

• (1) The Cleaner Road Transport Vehicles (Scotland) Regulations 2010⁴⁰ are amended as follows.

• (2) In regulation 2⁴¹ (interpretation) in the definition of—

• “contracting entity” for “regulation 3 of the Utilities Contracts (Scotland) Regulations 2012” substitute “regulation 4 of the Utilities Contracts (Scotland) Regulations 2016”; and

• “operator” for “regulation 11 of the Utilities Contracts (Scotland) Regulations 2012” substitute “regulation 15 of the Utilities Contracts (Scotland) Regulations 2016”.

• (3) In regulation 6(1)(b)⁴² (enforcement of duties) for “Part 9 of the Utilities Contracts (Scotland) Regulations 2012” substitute “Chapter 2 of Part 5 of the Utilities Contracts (Scotland) Regulations 2016”.

Defence and Security Public Contracts Regulations 2011

2

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

Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013

3

• (1) The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013⁴³ is amended as follows.

• (2) In paragraph 10 (public procurement) of Schedule 3 (exclusions of section 4(2)(a) and (b) of the Act)—

• (a) in sub-paragraph (1)(a) for “regulation 26 of the Utilities Contracts (Scotland) Regulations 2012” substitute “regulation 78 of the Utilities Contracts (Scotland) Regulations 2016”;

• (b) in sub-paragraph (1)(b) for “regulation 34 of the Utilities Contracts (Scotland) Regulations 2012” substitute “Chapter 2 of Part 3 of the Utilities Contracts (Scotland) Regulations 2016”;

• (c) for sub-paragraph (2) substitute—

(2) For the purposes of contract award procedures or design contests commenced before 18th April 2016 and on or after 1st May 2012, the references in sub-paragraph (1)— (a) to regulations 58 and 79 of the Public Contracts (Scotland) Regulations 2015 are to be read as references to regulations 23 and 33 of the Public Contracts (Scotland) Regulations 2012⁴⁴; and (b) to regulation 78 and Chapter 2 of Part 3 of the Utilities Contracts (Scotland) Regulations 2016 are to be read as references to regulations 26 and 34 of the Utilities Contracts (Scotland) Regulations 2012⁴⁵

; and

• (d) at the end of sub-paragraph (3) insert—

(d) regulation 111(2) of the Utilities Contracts (Scotland) Regulations 2016.

Signed

KEITH BROWN — A member of the Scottish Government — 2016-01-26

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations revoke and replace the Utilities Contracts (Scotland) Regulations 2012 (“the 2012 Regulations”).

Parts 1 to 4 implement, for Scotland, Directive 2014/25/EU of the European Parliament and of the Council of 26th February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p.243). These Parts impose obligations on utilities in relation to how they award contracts for the execution of works, the supply of products or the provision of services. In particular—

• Part 1 sets out the scope of the Regulations (including by reference to activities and to thresholds based on the estimated value of the procurement) and lays down some general rules and principles that apply to a procurement within the scope of the Regulations;

• Part 2 sets out detailed rules to be followed in relation to a procurement (except where Part 3 applies);

• Part 3 establishes particular procurement regimes for the procurement of social and other specific services and the use of design contests: these regimes impose less detailed requirements and allow greater flexibilities than under Part 2; and

• Part 4 imposes certain requirements on utilities in relation to recording and reporting information, including requirements about retaining copies of contracts above a certain value, documenting the progress of a procurement and sending information about a procurement to the Scottish Ministers and European Commission on request.

Part 5 contains provisions about remedies (and their facilitation) in relation to a procurement within the scope of Parts 1 to 4. These provisions replace Part 9 of the 2012 Regulations. In so doing, they implement, for Scotland, Council Directive 92/13/EEC of 25th February 1992 on coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p.14) as amended⁴⁶.

Part 6 contains provisions which—

• revoke the 2012 Regulations and make consequential and miscellaneous amendments to secondary legislation; and

• make transitional, transitory and savings provisions, including provisions for certain procurements commenced before the commencement of these Regulations which are not to be affected by these Regulations.

A full regulatory assessment of the effect that these Regulations will have on the costs of business has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Scottish Procurement Directorate’s website at www.scotland.gov.uk/topics/government/spd.

Footnotes

Editorial notes