The Utilities Supply and Works Contracts Regulations 1992

The supply of electricity to a network referred to in paragraph 6 above but only if the electricity supplied in the period of 36 months ending at the relevant time as defined in regulation 9(16) above has exceeded 30% of the total produced by the utility in that period.

9

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

10

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

11

The supply of gas to a network referred to in paragraph 9 above but only if the total consideration payable in the period of 36 months ending at the relevant time as defined in regulation 9(16) above on account of such supply has exceeded 20% of the total turnover of the utility in that period.

12

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

13

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

14

The supply of heat to a network referred to in paragraph 12 above but only if the total consideration payable in the 36 months ending at the relevant time as defined in regulation 9(16) above on account of such supply has exceeded 20% of the total turnover of the utility in that period.

15

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

16

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

17

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

18

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

19

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

20

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

21

The operation of a network providing a service to the public in the field of transport by bus in a geographical area in which other persons are not free to provide the service under the same conditions as the utility.

22

The provision or operation of a public telecommunications network.

23

The provision of one or more public telecommunications services.

SCHEDULE 2 — EXCLUDED PUBLIC TELECOMMUNICATIONS SERVICES

1

All public telecommunications services.

2

All public telecommunications services, other than the following services when they are provided within the geographical area for which the provider is licensed as a public telecommunications operator: basic voice telephony services, basic data transmission services, the provision of private leased circuits and maritime services.

SCHEDULE 3 — ACTIVITIES CONSTITUTING WORKS

Classes	Groups	Subgroups and items	Descriptions
50			BUILDING AND CIVIL ENGINEERING
	500		General building and civil engineering work (without any particular specialisation) and demolition work
		500.1	General building and civil engineering work (without any particular specialisation)
		500.2	Demolition work
	501		Construction of flats, office blocks, hospitals and other buildings, both residential and non-residential
		501.1	General building contractors
		501.2	Roofing
		501.3	Construction of chimneys, kilns and furnaces
		501.4	Waterproofing and damp-proofing
		501.5	Restoration and maintenance of outside walls (repainting, cleaning, etc.)
		501.6	Erection and dismantlement of scaffolding
		501.7	Other specialised activities relating to construction work (including carpentry)
	502		Civil engineering: construction of roads, bridges, railways, etc.
		502.1	General civil engineering work
		502.2	Earth-moving (navvying)
		502.3	Construction of bridges, tunnels and shafts, drilling
		502.4	Hydraulic engineering (rivers, canals, harbours, flows, locks and dams)
		502.5	Road-building (including specialised construction of airports and runways)
		502.6	Specialised construction work relating to water (i.e. to irrigation, land drainage, water supply, sewage disposal, sewerage, etc.)
		502.7	Specialised activities in other areas of civil engineering
	503		Installation (fittings and fixtures)
		503.1	General installation work
		503.2	Gas fitting and plumbing, and the installation of sanitary equipment
		503.3	Installation of heating and ventilating apparatus (central heating, air conditioning, ventilation)
		503.4	Sound and heat insulation, insulation against vibration
		503.5	Electrical fittings
		503.6	Installation of aerials, lightning conductors, telephones, etc.
	504		Building completion work
		504.1	General building completion work
		504.2	Plastering
		504.3	Joinery, primarily engaged in on the site assembly and/or installation (including the laying of parquet flooring)
		504.4	Painting, glazing, paper hanging
		504.5	Tiling and otherwise covering floors and walls
		504.6	Other building completion work (putting in fireplaces, etc.)

SCHEDULE 4 — FORMS OF NOTICES FOR PUBLICATION IN THE OFFICIAL JOURNAL

PART A — PERIODIC INDICATIVE NOTICE

For supply contracts:

A

• (1) The name, address and telephone, telegraphic, telex and facsimile numbers of the utility and of the service from which additional information may be obtained.

• (2) For each type of goods or services the total quantity or value to be supplied under the contract(s).

• (3)

• (a) Estimated date of the commencement of the procedures leading to the award of the contract(s) (if known).

• (b) Type of award procedure to be used.

• (4) Other information (for example, indicate if a call for competition will be published later).

• (5) Date of despatch of the notice.

For works contracts

B

• (1) The name, address and telephone, telegraphic, telex and facsimile numbers of the utility.

• (2)

• (a) The site.

• (b) The nature and extent of the services to be provided, the main characteristics of the work or where relevant of any lots by reference to the work.

• (c) An estimate of the cost of the service to be provided.

• (3)

• (a) Type of award procedure to be used.

• (b) Estimated date for initiating the award procedures in respect of the contract or contracts.

• (c) Estimated date for the start of the work.

• (d) Estimated time-table for completion of the work.

• (4) Terms of financing of the work and of price revision.

• (5) Other information (for example, indicate if a call for competition will be published later).

• (6) Date of despatch of the notice.

PART B — OPEN PROCEDURES NOTICE

1

The name, address and telephone, telegraphic, telex and facsimile numbers of the utility.

2

Nature of the contract (supply or works; where applicable, state if it is a framework agreement[^f00044])

3

• (a) Place of delivery, or site.

• (b) Nature and quantity of the goods to be supplied; or the nature and extent of the services to be provided and general nature of the work.

• (c) Indication of whether the suppliers can tender for some and/or all of the goods required. If, for works contracts, the work or the contract is subdivided into several lots, the size of the different lots and the possibility of tendering for one, for several or for all of the lots.

• (d) Authorisation to submit variants.

• (e) For works contracts: information concerning the purpose of the work or the contract where the latter also involves the drawing up of projects.

4

Derogation from the use of European specifications, in accordance with regulation 11(4).

5

Time limits for delivery or completion.

6

• (a) Name and address from which the contract documents and additional documents may be requested.

• (b) Where applicable, the amount and terms of payment of the sum to be paid to obtain such documents.

7

• (a) The final date for receipt of tenders.

• (b) The address to which they must be sent.

• (c) The language or languages in which they must be drawn up.

8

• (a) Where applicable, the persons authorised to be present at the opening of tenders.

• (b) The date, hour and place of such opening.

9

Any deposits and guarantees required.

10

Main terms concerning financing and payment and/or reference to the provisions in which these are contained.

11

Where applicable, the legal form to be taken by the grouping of suppliers or contractors to whom the contract is awarded.

12

Minimum standards of economic and financial standing and technical capacity required of the supplier or contractor to whom the contract is awarded.

13

Period during which the tenderer is bound to keep open his tender.

14

The criteria for the award of the contract. Criteria other than that of the lowest price shall be mentioned where they do not appear in the contract documents.

15

Other information.

16

Where applicable, the date of publication in the Official Journal of the European Communities of the periodic indicative notice which refers to the contract.

17

Date of despatch of the notice.

PART C — RESTRICTED PROCEDURES NOTICE

PART D — NEGOTIATED PROCEDURES NOTICE

PART E — NOTICE ON THE EXISTENCE OF A QUALIFICATION SYSTEM

PART F — CONTRACT AWARD NOTICE

Information for publication in the Official Journal of the European Communities

I

• (1) Name and address of the utility.

• (2) Nature of the contract (supply or works; where applicable, state if it is a framework agreement[^f00047]).

• (3) At least a summary indication of the nature of the goods, works or services provided.

• (4)

• (a) Form of the call for competition (notice on the existence of a qualification procedure; periodic indicative notice; contract notice).

• (b) Date of publication of the notice in the Official Journal of the European Communities.

• (c) In the case of contracts awarded without a prior call for competition, indication of the relevant sub-paragraph of regulation 15(1) relied upon.

• (5) Award procedure (open, restricted or negotiated).

• (6) Number of tenders received.

• (7) Date of award of the contract.

• (8) Price paid for bargain purchases under regulation 15(1)(j).

• (9) Name and address of successful supplier(s) or contractor(s).

• (10) State, where applicable, whether the contract has been, or may be, sub-contracted.

• (11) Optional information:

• value and share of the contract which may be sub-contracted to third parties,

• award criteria,

• price paid (or range of prices).

Information not intended for publication

II

• (12) Number of contracts awarded (where an award has been split between more than one supplier).

• (13) Value of each contract awarded.

• (14) Country of origin of the product or services (EEC origin or non-EEC origin; if the latter, broken down by third country).

• (15) Was recourse made to the exceptions to the use of European specifications provided for under regulation 11(4). If so, which?

• (16) Which award criteria was used (most economically advantageous; lowest price)?

• (17) Was the contract awarded to a bidder who submitted a variant, in accordance with regulation 20(4)?

• (18) Were any tenders excluded on the grounds that they were abnormally low, in accordance with regulation 20(6) and (7).

• (19) Date of despatch of the notice.

Signed

Norman Lamont — Tim Wood — Two of the Lords Commissioners of Her Majesty’s Treasury — 23rd December 1992

Explanatory note

(This note is not part of the Regulations)

These Regulations implement in its entirety Council Directive 90/531/EEC (OJ No.L297,29.10.90,p.1) concerning the co-ordination of procedures for the award of supply and works contracts by certain entities operating in the water, energy, transport and telecommunications sectors. These entities are specified in Schedule 1, and in the Regulations are called “utilities” (regulation 3).

The Regulations apply when utilities are seeking offers in relation to certain contracts for the purchase or hire of goods called in the Regulations “supply contracts” (regulation 2(1) and 5) and when they are seeking offers in relation to certain contracts providing for, or engaging a person to procure, the carrying out or the design and carrying out of certain building and engineering works called in the Regulations “works contracts” (regulations 2(1) and 5). They deal in particular with the treatment to be accorded to suppliers or contractors or potential suppliers or contractors who are nationals of and established in member States (regulation 4). Certain contracts are excluded from the application of the Regulations, principally where the contract is not for the purpose of carrying out an activity specified in the Part of Schedule 1 in which the utility is specified, where the contract is for the purpose of carrying out an activity outside the territory of the Communities, contracts for resale, secret contracts, contracts connected with international agreements (regulation 6), certain contracts awarded by utilities operating in the telecommunications sector (regulation 7 and Schedule 2) and those contracts where the value of the contract is beneath the threshold for coverage (regulation 9). Certain contracts awarded by utilities operating in the energy sector may be exempt from the detailed rules of the Regulations, in which case the utility must comply with the principles of non-discrimination and competitive procurement in seeking offers in relation to them (regulation 8).

The principal requirement of the Regulations is that, in seeking offers in relation to a supply or a works contract, a utility must use one of three procedures: the open procedure, whereby any person who is interested may submit a tender; the restricted procedure whereby only those persons selected by the utility may submit tenders; and the negotiated procedure whereby the utility negotiates the terms of the contract with one or more persons selected by it (regulation 12).

The utility is required to publicise the supply or works contracts which it expects to award in the Official Journal at least once a year (regulation 13) and again when it starts the procedure leading to the award (regulation 14), although this latter requirement is dispensed with in certain cases (regulations 14 and 15). The Regulations permit the operation of a system of qualification of suppliers or contractors, from which a utility may select suppliers or contractors to tender for or negotiate a contract without advertisement at the start of the award procedure. In this case the existence of the qualification system must be advertised (regulation 17).

The form of the different advertisements and the information which it has to contain in relation to the proposed contract is specified in Schedule 4. If the notice is also to be published in the press it must be limited to the information published in the Official Journal (regulation 28).

The various procedures also lay down the time to be allowed for the response by potential suppliers or contractors to the invitations and for obtaining the relevant documents (regulation 16). The Regulations also specify the matters to which the utility may have regard in excluding tenders from suppliers or contractors who are regarded as ineligible or in selecting suppliers or contractors to tender for or to negotiate the contract (regulation 18).

The utility is required to award a supply or works contract on the basis either of the offer (including in-house bids) which offers the lowest price or the one which is the most economically advantageous (regulation 20).

There are various other requirements in the Regulations. The most important is the requirement that where the utility wishes to lay down technical specifications which the goods or materials to be purchased or hired or the work or works to be carried out under the contract must meet all such specifications must be specified in the contract documents and that, except in certain circumstances, these specifications must be defined by reference to European specifications. It is also provided that, except where it is not possible to describe the goods or materials otherwise, the technical specifications may not refer to goods of a specific make or source or to a particular process with the effect of favouring or eliminating particular suppliers or contractors (regulation 11). A utility is permitted to advertise an arrangement which establishes the terms under which suppliers or contractors will enter supply or works contracts with it over a period of time, in which case it need not advertise the supply and works contracts (regulation 10). In certain circumstances a utility may, and in other limited circumstances must, reject an offer for a supply contract if more than 50% of the value of the goods are goods which originate in States with which the Communities have not concluded an agreement ensuring comparable and effective access to markets for undertakings in member States (regulation 21).Utilities are required to publicise in the Official Journal information about the supply and works contracts they have awarded (regulation 22). The utilities are required to preserve relevant records, and to submit various reports to the responsible Minister (regulations 25 and 26).

The Regulations also implement Council Directive 92/13/EEC (OJ No. L76, 23.3.92,p.14) concerning the co-ordination of laws, regulations and administrative provisions relating to the application of Community rules on the procurement of entities operating in the water, energy, transport and telecommunications sectors. They provide that the obligation on a utility to comply with the Regulations, and with any enforceable Community obligation in relation to the award of a supply or works contract, is a duty owed to suppliers and contractors. A breach of the duty is not a criminal offence, but is actionable by a supplier or contractor. Proceedings are assigned to the High Court in England, Wales and Northern Ireland and to the Court of Session in Scotland. The court is given power to grant appropriate interim and final relief and to award damages except that, where the contract in respect of which there has been an infringement has already been entered into, the court’s powers are restricted to awarding damages.

Finally, the Regulations amend the Public Works Contracts Regulations 1991 and the Public Supply Contracts Regulations 1991 to ensure that not more than one set of Regulations applies to any contract.

Footnotes

[^f00002]: 1972 c. 68.

[^f00003]: OJ No.L379, 30.12.78, p.1, as amended by Council Regulation (EEC) No. 2626/84 (OJ No. L247), 16.9.84, p.1) and Council Regulation (EEC) No. 1971/89 (OJ No. L189, 4.7.89, p.1).

[^f00004]: 1971 c. 80.

[^f00005]: OJ No. L297, 29.10.90, p.1.

[^f00006]: The rates are determined for each successive period of two years by calculating the average of the daily exchange rates between each currency and the ECU in a period of 24 months preceding the determination.

[^f00007]: OJ No. L297, 29.10.90, p.1.

[^f00008]: OJ No. L40, 11.2.89, p.12.

[^f00009]: OJ No. L128, 23.5.91, p.1.

[^f00010]: OJ No. L36, 7.2.87, p.31.

[^f00011]: 1986, c. 45.

[^f00012]: S.I. 1989/2405 (N.I.19).

[^f00013]: OJ No.L40, 11.2.89, p.12.

[^f00014]: OJ No.L148, 28.6.68, p.1, as amended by Council Regulation (EEC) No.3860/87 (OJ No.L363, 23.12.87, p.30).

[^f00015]: OJ No.L297, 29.10.90, p.1.

[^f00016]: The address for the Office for Official Publications of the European Communities is 2 rue Mercier, L-2985, Luxembourg, tel 499 28-1, telex 1324 PUBOF LU, fax 49 00 03, 49 57 19.

[^f00017]: The Office for the Official Publications is required by article 19(3) of Council Directive 90/531/EEC (OJ No. L297, 29.10.90, p.1) to publish notices within 12 days of the date of despatch, and to endeavour to publish contract notices within 5 days of the date of despatch in response to a request pursuant to this paragraph.

[^f00018]: 1947 c. 44; the Crown Proceedings Act 1947 was extended to Northern Ireland in relation to Her Majesty’s Government in the United Kingdom and in Northern Ireland by and with the additions, exceptions and modifications set out in the Crown Proceedings (Northern Ireland) Order 1981, to which there is an amendment not relevant to these Regulations.

[^f00019]: OJ No. L76, 23.3.92, p.14.

[^f00020]: S.I. 1991/2680.

[^f00021]: S.I. 1991/2679.

[^f00022]: 1991 c. 56.

[^f00023]: 1980 c. 45.

[^f00024]: 1989 c. 29.

[^f00025]: S.I. 1992/231.

[^f00026]: 1986 c. 44.

[^f00027]: S.I. 1977/596.

[^f00028]: 1989 c. 29.

[^f00029]: 1934 c. 36.

[^f00030]: 1964 c. 28(N.I.).

[^f00031]: 1946 c. 59.

[^f00032]: 1969 c. 35(N.I.).

[^f00033]: 1986 c. 31.

[^f00034]: 1971 c. 15(N.I.)

[^f00035]: 1964 c. 40.

[^f00036]: 1970 c. 1(N.I.).

[^f00037]: 1962 c. 46.

[^f00038]: 1985 c. 67.

[^f00039]: 1984 c. 32.

[^f00040]: 1967 c. 37(N.I.).

[^f00041]: 1984 c. 12.

[^f00042]: S.I. 1991/2680.

[^f00043]: 1984 c. 12.

[^f00044]: In accordance with regulation 10.

[^f00045]: In accordance with regulation 10.

[^f00046]: In accordance with regulation 10.

[^f00047]: In accordance with regulation 10.