The Utilities Contracts Regulations 1996

• (1) In this regulation an offer of third country origin is an offer to enter a supply contract under which more than 50% of the value of the goods offered originate, as determined in accordance with Council Regulation (EEC) No. 802/68[^f00020], in States with which the Communities have not concluded, multilaterally or bilaterally, an agreement ensuring comparable and effective access for undertakings in member States to the markets of those States or in States to which the benefit of the provisions of Council Directive 93/38/EEC[^f00021] has not been extended.

• (2) Notwithstanding regulation 21, a utility need not accept an offer of third country origin.

• (3) Notwithstanding regulation 21, where an offer of third country origin is equivalent to an offer which is not of third country origin a utility shall not accept the offer of third country origin unless not to accept that offer would oblige the utility to acquire goods having technical characteristics different from those of existing goods or an installation resulting in incompatibility, technical difficulties in operation and maintenance or disproportionate costs.

• (4) In the case of a supply contract to be awarded on the basis of the offer which offers the lowest price offers are equivalent for the purposes of paragraph (3) above if their prices are to be treated as equivalent in accordance with paragraph (6) below.

• (5) In the case of a supply contract to be awarded on the basis of the offer which is the most economically advantageous to the utility offers are equivalent for the purposes of paragraph (3) above if their prices are to be treated as equivalent in accordance with paragraph (6) below and if disregarding any difference in price the offer which is not of third country origin is at least as economically advantageous to the utility as the offer of third country origin.

• (6) The prices of offers are to be treated as equivalent for the purposes of paragraphs (4) and (5) above if the price of the offer which is not of third country origin is the same as or is not more than 3% greater than the offer of third country origin.

Contract award notice

23

• (1) A utility which has awarded a supply, works or Part A or Part B services contract (other than one excluded or exempted from the application of these Regulations by regulations 6 to 10) shall no later than two months after the award, send to the Official Journal a notice, substantially corresponding to the form set out in Part F of Schedule 5 and including the information therein specified.

• (2) A utility may indicate that any of the information included in paragraphs 6 and 9 of the contract award notice is of a sensitive commercial nature, and require that it be not published or, in the case of a Part B services contract, state in the contract award notice whether it agrees to the notice’s publication.

• (3) Where a utility has awarded a services contract for services falling within category 8 of Part A of Schedule 4 it may, if the contract was awarded in accordance with regulation 16(1)(b), insert in paragraph 3 of the contract award notice only the title of the category of services: if the services contract was not awarded in accordance with regulation 16(1)(b), the utility may provide limited information at paragraph 3 of the contract award notice if the information which would otherwise be given is of a commercially sensitive nature, provided that the information given is no less detailed than that already provided in either its call for competition, in accordance with regulation 15(2), or where a qualification system is used, than that recorded in accordance with regulation 18(9).

PART VI — MISCELLANEOUS

Obligations relating to employment protection and working conditions

24

A utility which includes in the contract documents relating to a works or services contract information as to where a contractor or services provider may obtain information about the obligations relating to employment protection and working conditions which will apply to the works or services to be carried out or provided under the contract, shall request contractors or services providers to indicate that they have taken account of those obligations in preparing their tender or in negotiating the contract.

Sub-contracting

25

A utility may require a provider to indicate in his tender what part of the contract if any he intends to sub-contract to another person.

Preservation of records

26

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

• (a) the qualification and selection of providers and the award of contracts;

• (b) the recourse to derogations from the requirement that European specifications be referred to pursuant to regulation 12(4); and

• (c) the use of a procedure without a call for competition pursuant to regulation 16.

• (2) When a utility decides not to apply these Regulations to the seeking of offers in relation to a contract in accordance with regulation 6, 7, 8 or 10 it shall keep appropriate information on such a contract sufficient to justify that decision.

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

Statistical and other reports

27

• (1) A utility shall each year, by the date notified to it by the Minister, send to the Minister a report specifying the aggregate value (estimated if necessary) of the consideration payable under contracts awarded in the previous year which have been excluded from the operation of these Regulations by regulation 10 (Thresholds) for the purpose of carrying out the activities in each Part of Schedule 1 in which the utility is specified.

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

• (a) containing such information as the Minister may from time to time require in respect of a particular contract (including contracts excluded or exempted from the application of all or some of these Regulations by regulations 6 to 10);

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

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

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

Provision of reports

28

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

• (2) The Minister responsible for a utility shall be the Minister of the Crown whose areas of responsibility are most closely connected with the functions of the utility; and any question as to which Minister of the Crown’s areas of responsibility are most closely connected with the functions of a utility shall be determined by the Treasury whose determination shall be final.

• (3) The requirement on a utility to send any report in accordance with regulations 8(3), 9(3)(b)(ii)(aa), 21(8) and 27 to the Minister shall be enforceable, on the application of the Minister responsible, by mandamus, or in Scotland, by an order for specific performance.

• (4) Proceedings under paragraph (3) above brought in Scotland shall be brought before the Court of Session.

• (5) In the application of this regulation to Northern Ireland references to the Minister shall include references to the Head of a Northern Ireland Department.

• (6) The Minister to whom a report is sent in accordance with regulations 8(3), 9(3)(b)(ii)(aa), 21(8) and 27 shall send the report to the Treasury for onward transmission to the Commission.

Publication of notices

29

• (1) Any notice required by these Regulations to be sent to the Official Journal shall be sent by the most appropriate means to the Office for Official Publications of the European Communities[^f00022].

• (2) The utility shall retain evidence of the date of despatch to the Official Journal of each notice.

• (3) The utility may in exceptional cases request that a contract notice be published within 5 days of the date of despatch, provided that it is sent by electronic mail, telex or facsimile[^f00023].

• (4) The utility may publish the information contained in a contract notice or notice of a design contest in accordance with regulation 31(2) in such other way as it thinks fit but it shall not do so until the notice has been despatched in accordance with paragraph (1) above and shall not publish any information other than that contained in the notice.

Confidentiality of information

30

A utility which makes information available to a provider pursuant to these Regulations may impose requirements on him for the purpose of protecting the confidentiality of that information.

Design contests

31

• (1) This regulation shall apply to a design contest—

• (a) if it is organised as part of a procedure leading to the award of a services contract other than a contract excluded from the operation of these Regulations by regulation 6, 7, 8 or 10 above, or

• (b) whether or not it is organised as part of a procedure leading to the award of such a contract, if—

• (i) The contest is conducted for the purpose of carrying out an activity specified in any Part of Schedule 1 in which the utility is specified, and

• (ii) the aggregate of the value of the prizes or payments for the contest is not less than 400,000 ECU, unless the utility is one specified in Part T of Schedule 1 in which case the aggregated value shall be not less than 600,000 ECU.

• (2) The utility shall publicise its intention to hold a design contest by sending to the Official Journal a notice in a form substantially corresponding to that set out in Part G of Schedule 5 and containing the information therein specified.

• (3) The utility shall make the rules of the design contest available to services providers who wish to participate in the contest.

• (4) The utility may restrict the number of persons invited to participate in the design contest, but it shall make the selection on the basis of clear and non-discrimatory criteria.

• (5) The utility shall take account of the need to ensure adequate competition in determining the number of persons invited to participate in the design contest.

• (6) Paragraphs (2), (4) and (5) of regulation 20 apply to design contests as they apply to the seeking of offers in relation to a proposed services contract.

• (7) The utility shall provide for the participants' proposals to be submitted to the jury without any indication as to the authorship of each proposal.

• (8) The utility shall ensure that the members of the jury are all individuals who are independent of participants in the design contest and, when the participants are required to possess a particular professional qualification, that at least one third of the members of the jury also possess that qualification or an equivalent qualification.

• (9) The utility shall ensure that the jury makes its decision independently and solely on the basis of the criteria set out in the notice referred to in paragraph (2) above.

• (10) The utility shall, no later than 2 months after the date by which the jury makes its selection, publicise the results of the design contest by sending to the Official Journal a notice substantially corresponding to the form set out in Part H of Schedule 5 and including the information therein specified.

PART VII — APPLICATIONS TO THE COURT AND CONCILIATION

Enforcement of obligations

32

• (1) The obligation on a utility to comply with the provisions of these Regulations other than regulations 7(2), 21(8) and 27, and with any enforceable Community obligation in respect of a contract (other than one excluded from the application of these Regulations by regulation 6, 7, 8 or 10), is a duty owed to providers.

• (2) A breach of the duty owed pursuant to paragraph (1) shall not be a criminal offence but any breach of the duty shall be actionable by any provider who, in consequence, suffers, or risks suffering, loss or damage.

• (3) Proceedings under this regulation shall be brought in England and Wales and in Northern Ireland in the High Court and, in Scotland, before the Court of Session.

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

• (a) the provider bringing the proceedings has informed the utility of the breach or apprehended breach of the duty owed to him pursuant to paragraph (1) above by that utility and of his intention to bring proceedings under this regulation in respect of it; and

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

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

• (a) by interim order suspend the procedure leading to the award of the contract in relation to which the breach of the duty owed pursuant to paragraph (1) above is alleged, or suspend the implementation of any decision or action taken by the utility in the course of following such a procedure; and

• (b) if satisfied that a decision or action taken by a utility was in breach of the duty owed pursuant to paragraph (1) above—

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

• (ii) award damages to a provider who has suffered loss or damage as a consequence of the breach, or

• (iii) do both of those things.

• (6) In proceedings under this regualation the Court shall not have power to order any remedy other than an award of damages in respect of a breach of the duty owed pursuant to paragraph (1) above if the contract in relation to which the breach occurred has been entered into.

• (7) Where, in proceedings under this regulation, the Court is satisfied that a provider would have had a real chance of being awarded a contract if that chance had not been adversely affected by a breach of the duty owed to him by the utility pursuant to paragraph (1) above the provider shall be entitled to damages amounting to his costs in preparing his tender and in participating in the procedure leading to the award of the contract.

• (8) Paragraph (7) above shall not affect a claim by a provider that he has suffered other loss or damage or that he is entitled to relief other than damages and is without prejudice to the matters on which a provider may be required to satisfy the Court in respect of any other such claim.

• (9) Notwithstanding sections 21 and 42 of the Crown Proceedings Act 1947[^f00024], in proceedings brought under this regulation against the Crown the Court shall have power to grant an injunction or interdict.

Conciliation

33

• (1) A provider who considers that—

• (a) a utility has breached or may breach the duty referred to in regulation 32(1), and

• (b) in consequence he has suffered, or risks suffering, loss or damage,

and who wishes to use the conciliation procedure provided for in article 10 and 11 of Council Directive 92/13/EEC[^f00025] shall send a request for the application of the procedure to the Minister for onward transmission as soon as possible to the Commission.

• (2) Neither the request for nor any action taken pursuant to the conciliation procedure referred to in paragraph (1) above shall affect the rights or liabilities of the provider requesting it, of the utility in respect of which the request is made, or of any other person.

PART VIII — REVOCATION AND AMENDMENT

Revocation

34

These Regulations revoke the Utilities Supply and Works Contracts Regulations 1992[^f00026] and the Utilities Supply and Works Contracts (Amendment) Regulations 1993[^f00027].

Amendment of the Public Works Contracts Regulations, Public Services Contracts Regulations and the Public Supply Contracts Regulations

35

• (1) The Public Works Contracts Regulations 1991[^f00028] shall be amended—

• (a) in regulation 2(1), by substituting the following definition for the definition of “relevant State”—

• “relevant State” has the meaning ascribed to it by regulation 4;

• (b) in regulation 4(1)(b), by inserting at the end the following words—

• “or a State for the time being specified in Schedule 2 to the Utilities Contracts Regulations 1996”;

• (c) in regulation 6, by substituting for paragraphs (a) and (b) the following paragraph—

(a) where the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts Regulations 1996 and the services to be provided under it are for the purposes of carrying out an activity specified in any Part of Schedule 1 to those Regulations in which the utility is specified;

• (2) The Public Services Contracts Regulations 1993[^f00029] shall be amended—

• (a) in regulation 2(1),

• (i) in the definition of a “public services contract”, by substituting for paragraph (d) the following paragraph—

(d) any contract where the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts Regulations 1996 and the services to be provided under it are for the purposes of carrying out an activity specified in any Part of Schedule 1 to those Regulations in which the utility is specified;

• (ii) by substituting the following definition for the definition of “relevant State”—

• “relevant State” has the meaning ascribed to it by regulation 4;

• (b) in regulation 4(1)(b), by inserting at the end the following words—

• “or a State for the time being specified in Schedule 2 to the Utilities Contracts Regulations 1996”; and

• (c) in regulation 29(4), by inserting the words “and design contest notice” after the words “contract notice” and at the end the words “on or after that date”.

• (3) The Public Supply Contracts Regulations 1995[^f00030] shall be amended—

• (a) in regulation 2(1), by substituting the following definition for the definition of “relevant State”—

• “relevant State” has the meaning ascribed to it by regulation 4;

; and

• (b) in regulation 4(1)(b), by inserting at the end the following words—

• “or a State for the time being specified in Schedule 2 to the Utilities Contracts Regulations 1996”;

• (c) in regulation 6, by substituting for paragraphs (a) and (b) the following paragraphs—

(a) where the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts Regulations 1996 and the services to be provided under it are for the purposes of carrying out an activity specified in any Part of Schedule 1 to those Regulations in which the utility is specified;

SCHEDULE 1 — UTILITIES AND ACTIVITIES

1

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

2

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

3

The disposal or treatment of sewage.

4

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

5

The supply of drinking water to a network referred to in paragraph 1 above but only if the drinking water supplied in the period of 36 months ending at the relevant time as defined in regulation 10(19) above has exceeded 30% of the total produced by the utility in that period.

6

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

7

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

8

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 10(19) 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 10(19) 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 10(19) 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 explor

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.

22

The provision or operation of a public telecommunications network.

23

The provision of one or more public telecommunications services.

SCHEDULE 2 — EXTENSION TO NON MEMBER STATES

1

Bulgaria

2

The Czech Republic

3

Hungary

4

Iceland

5

Lichtenstein

6

Norway

7

Poland

8

Romania

9

Slovakia

SCHEDULE 3 — ACTIVITIES CONSTITUTING WORKS

Classes	Groups	Subgroups and items	Descriptions
50	500		BUILDING AND CIVIL ENGINEERING 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 the after 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 — CATEGORIES OF SERVICES

PART A

Category	Services	CPC[^f00058]Reference
1.	Maintenance and repair of vehicles and equipment	6112, 6122, 633, 886
2.	Transport by land, including armoured car services and courier services but not including transport of mail and transport by rail	712 (except 71235), 7512, 87304
3.	Transport by air but not transport of mail	73 (except 7321)
4.	Transport of mail by land, other than by rail, and by air	71235, 7321
5.	Telecommunications services other than voice telephony, telex, radiotelephony paging and satellite services	752
6.	Financial services Insurance services Banking and investment services other than contracts for the issue, sale, purchase or transfer of securities or other financial instruments and central bank services	81 (Part) 812, 814
7.	Computer and related services	84
8.	R & D services where the benefits accrue exclusively to the utility for its use in the conduct of its own affairs and the services are to be wholly paid for by the utility	81 (Part) 812, 814
9.	Accounting, auditing and book-keeping services	862
10.	Market research and public opinion polling services	864
11.	Management consultancy services and related services, but not arbitration and conciliation services	865, 866
12.	Architectural services: engineering services and integrated engineering services: urban planning and landscape architectural services: related scientific and technical consulting services: technical testing and analysis services	867
13.	Advertising services	871
14.	Building-cleaning services and property management services	874 82201 to 82206
15.	Publishing and printing services on a fee or contract basis	88442
16.	Sewerage and refuse disposal service: sanitation and similar services	94

PART B

Category	Services	CPC Reference
17.	Hotel and restaurant services	64
18.	Transport by rail	711
19.	Transport by water	72
20.	Supporting and auxiliary transport services	74
21.	Legal services	861
22.	Personnel placement and supply services	872
23.	Investigation and security services, other than armoured car services	873 (except 87304)
24.	Education and vocational education services	92
25.	Health and social services	93
26.	Recreational, cultural and sporting services	96
27.	Other services

SCHEDULE 5 — FORMS OF NOTICES FOR PUBLICATION IN THE OFFICIAL JOURNAL

PART A — PERIODIC INDICATIVE NOTICE

A.For supply contracts

1

The name, address, telegraphic address, telephone, 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.

B.For works contracts

1

The name, address, telegraphic address, telephone, 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.

C.For services contracts

1

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

2

Intended total procurement in each of the service categories listed in Part A of Schedule 5.

3

• (a) Estimated date of the commencement of the procedures of 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 dispatch of the notice.

PART B — OPEN PROCEDURES NOTICE

1

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

2

Nature of the contract (supply, works or services; where applicable, state if it is a framework agreement[^f00031]).

3

Place of delivery, site or place of performance of services.

4

For supplies and works—

• (a) 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.

• (b) 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 possibility of tendering for one, for several or for all of the lots.

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

5

For services—

• (a) Indication whether the execution of the services is by law, regulation, or administrative provision reserved to a particular profession.

• (b) Reference of the law, regulation or administrative provision.

• (c) Indication whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the services.

• (d) Indication whether services providers can tender for a part of the services concerned.

6

Authorisation to submit variants.

7

Derogation from the use of European specifications, in accordance with regulation 12(4).

8

Time limits for delivery, completion or, in the case of a services contract, duration.

9

• (a) Name and address from which the contracts 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.

10

• (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.

11

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

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

12

Any deposits and guarantees required.

13

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

14

Where applicable, the legal form to be taken by a grouping of providers to whom the contract is awarded.

15

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

16

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

17

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.

18

Other information.

19

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

20

Date of despatch of the notice.

PART C — RESTRICTED PROCEDURES NOTICE

1

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

2

Nature of the contract (supply, works or services; where applicable, state if it is a framework agreement[^f00032]).

3

Place of delivery, site or place of performance of services.

4

For supplies and works—

• (a) 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.

• (b) 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.

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

5

For services—

• (a) Indication whether the execution of the services is by law, regulation, or administrative provision reserved to a particular profession.

• (b) Reference of the law, regulation or administrative provision.

• (c) Indication whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the services.

• (d) Indication whether services providers can tender for a part of the services concerned.

6

Authorisation to submit variants.

7

Derogation from the use of European specifications, in accordance with regulation 12(4).

8

Time limits for delivery, completion or, in the case of a services contract, duration.

9

Where applicable, the legal form to be taken by a grouping of providers to whom the contract is awarded.

10

• (a) The final date for receipt of requests to participate.

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

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

11

The final date for despatch of invitations to tender.

12

Any deposits and guarantees required.

13

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

14

Information concerning the provider’s personal position and minimum standards of economic and financial standing and technical capacity required of the provider to whom the contract is awarded.

15

The criteria for the award of the contract where they are not mentioned in the invitation to tender.

16

Other information.

17

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

18

Date of despatch of the notice.

PART D — NEGOTIATED PROCEDURES NOTICE

1

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

2

Nature of the contract (supply, works or services; where applicable, state if it is a framework agreement[^f00033]).

3

Place of delivery, site or place of performance of services.

4

For supplies and works—

• (a) 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.

• (b) 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 possibility of tendering for one, for several or for all of the lots.

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

5

For services—

• (a) Indication whether the execution of the services is by law, regulation, or administrative provision reserved to a particular profession;

• (b) Reference of the law, regulation or administrative provision;

• (c) Indication whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the services;

• (d) Indication whether services providers can tender for a part of the services concerned.

6

Derogation from the use of European specifications, in accordance with regulation 12(4).

7

Time limits for delivery, completion or duration of services contract.

8

Where applicable, the legal form to be taken by a grouping of providers to whom the contract is awarded.

9

• (a) The final date for receipt of requests to participate.

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

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

10

Any deposits and guarantees required.

11

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

12

Information concerning the provider’s personal position and minimum standards of economic and financial standing and technical capacity required of the provider to whom the contract is awarded.

13

Where applicable, the names and addresses of providers already selected by the utility.

14

Where applicable, date(s) of previous publications in the Official Journal.

15

Other information.

16

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

17

Date of despatch of the notice.

PART E — NOTICE OF THE EXISTENCE OF A QUALIFICATION SYSTEM

1

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

2

Purpose of the qualification system.

3

Address where the rules concerning the qualification system can be obtained (if different from the address mentioned under 1).

4

Where applicable, duration of the qualification system.

PART F — CONTRACT AWARD NOTICE

I.Information for publication in the Official Journal

1

Name and address of the utility.

2

Nature of the contract (supply, works or services; where applicable, state if it is a framework agreement[^f00034]).

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.

• (c) In the case of contracts awarded without a prior call for competition, indication of whether it was regulation 5(2) or 16(1) which was relied upon and in the case of the latter, which was the relevant sub-paragraph.

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 16(1)(j).

9

Name and address of successful provider(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).

II.Information not intended for publication

12

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

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 12(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 21(4)?

18

Were any tenders excluded on the grounds that they were abnormally low, in accordance with regulation 21(6) and (7)?

19

Date of despatch of the notice.

20

In the case of contracts for services specified in Part B of Schedule 5, whether or not the utility agrees to publication of the notice.

PART G — DESIGN CONTEST NOTICE

1

Name, address, telegraphic address, telephone, telex and facsimile numbers of the utility and of the service from which additional information may be obtained.

2

Project description.

3

Nature of contest: open or restricted.

4

In the case of open contests: final date for receipt of plans and designs.

5

In the case of restricted contests—

• (a) the number of participants envisaged;

• (b) where applicable, names of the participants already selected;

• (c) criteria for the selection of participants;

• (d) final date for receipt of requests to participate.

6

Where applicable, an indication of whether participation is reserved to a particular profession.

7

Criteria to be applied in the evaluation of projects.

8

Where applicable, names of the persons selected to be members of the jury.

9

Indication of whether the decision of the jury is binding on the utility.

10

Where applicable, number and value of the prizes.

11

Where applicable, details of payments to all participants.

12

Indication of whether follow-up contracts will be awarded to one of the winners.

13

Other information.

14

Date of despatch of the notice.

PART H — DESIGN CONTEST RESULT NOTICE

1

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

2

Project description.

3

Number of participants.

4

Number of participants established outside the United Kingdom.

5

Winner(s) of the contest.

6

Where applicable, the prize(s) awarded.

7

Other information.

8

Reference to publication of the design contest notice in the Official Journal.

9

Date of despatch of the notice.

Signed

Bowen Wells — Michael Bates — Two of the Lords Commissioners of Her Majesty’s Treasury — 20th November 1996

Explanatory note

(This note is not part of the Regulations)

These Regulations implement Council Directive 93/38/EEC (OJ No. L199, 9.8.93. p. 84) concerning the co-ordination of procedures for the award of supply, works and services contracts by certain entities operating in the water, energy, transport and telecommunications sectors. This Directive replaces Council Directive 90/531/EEC (OJ No. L297, 29.10.90 p.1) and the Regulations revoke the Utilities Supply and Works Contracts Regulations 1992 (S.I. 1992/3279) as amended which implemented the 1990 Directive. The principal change is to extend the provisions to services contracts.

The Regulations also implement Council Directive 92/13/EEC (OJ No. L76, 23.3.92, p. 14) concerning the co-ordination of the laws, regulations and administrative provisions relating to the application of Community rules to the procurement of entities operating in the water, energy, transport and telecommunications sector which was amended to apply to the 1993 Directive.

The Regulations also implement certain European Treaties with a number of other European states under which the Community provisions relating to public procurement have been extended: those States are Bulgaria, the Czech Republic, Hungary, Iceland, Lichtenstein, Norway, Poland, Romania and Slovakia.

The Regulations lay down provisions relating to the award of supply, works and services contracts by utilities for the purpose of carrying out activities in the water, energy, transport and telecommunications sectors. The utilities and the relevant activities are specified in regulation 3 and Schedule 1. Services contracts are divided into two categories: some (“Part A” services) are subject to all the provisions; others (“Part B” services) are subject only to a limited number of provisions relating principally to the technical specifications in the contract documents and information requirements (regulation 5). Schedule 4 specifies the two categories of services.

Other contracts are excluded from the Regulations. These exclusions are specified in regulation 6 (general exclusions), regulation 7 (exclusion for certain telecommunications contracts), regulation 8 (exclusion of services contracts awarded to affiliated undertakings), regulation 9 (exemption for certain energy contracts), regulation 10 (exclusion for contracts below thresholds).

The Regulations lay down requirements for technical specifications which are included in the contract documents (Part II), the procedures to be followed in awarding contracts (Part III), requirements for the qualification and selection of tenderers (Part IV) and requirements on the award of the contract (Part V).

Schedule 5 lays down the form of the notices for contracts which are required to be advertised in the Official Journal of the European Communities.

The Regulations also introduce provisions regulating the procedures for the holding of a design contest which may or may not be part of the procedure leading to the award of a services contract, (regulation 31).

Finally the Regulations provide remedies for any breach of the Regulations or of any obligations arising under the EC Treaties. Proceedings may be brought in 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. There is also provision for disappointed tenderers to seek use of conciliation procedures under the auspices of the Commission (regulations 32 and 33).

Footnotes

[^f00001]: S.I. 1991/755.

[^f00002]: 1972 c. 68: the provisions in relation to public procurement have been extended to various European States which are not member States by agreements with the European Union; those agreements, have been designated as European Treaties under section 1(3) of the European Communities Act 1972; the agreements and the statutory provisions designating each of them as European Treaties, are listed in Schedule 2 (see regulation 4).

[^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. L199, 9.8.93, p.84.

[^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]: S.I. 1991/2680 as amended by S.I. 1992/3279.

[^f00008]: S.I. 1991/2680 as amended by S.I. 1992/3279.

[^f00009]: S.I. 1993/3228.

[^f00010]: OJ No. L209, 24.7.92, p.1.

[^f00011]: OJ No. L193, 18.7.83, p. 1 as amended by Council Directive 90/605/EEC (OJ No. L317, 16.11.90, p. 60).

[^f00012]: OJ No. L199, 9.8.93, p. 84.

[^f00013]: The relevant department in the Commission is DGXV/b/4 whose address is 200 Rue de la Loi, Brussels B-1049.

[^f00014]: OJ No. L40, 11.2.89, p. 12.

[^f00015]: OJ No. L217, 5.8.86, p. 21 as amended by Council Directive 91/263/EEC (OJ No. L128, 23.5.91, p. 1).

[^f00016]: OJ No. L36, 7.2.87, p. 31.

[^f00017]: 1986 c. 45.

[^f00018]: S.I. 1989/2405 (N.I. 19).

[^f00019]: OJ No. L40, 11.2.89, p. 12.

[^f00020]: 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).

[^f00021]: OJ No. L199, 9.8.93, p.84.

[^f00022]: 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 29 29 42 670, 49 00 03, 49 57 19).

[^f00023]: The Office for the Official Publications is required by article 25(3) of Council Directive 93/38/EEC (OJ No. L199, 9.8.93, p. 84) 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.

[^f00024]: 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 (S.I. 1981/233), to which there is an amendment not relevant to these Regulations.

[^f00025]: OJ No. L76, 23.3.92, p. 14.

[^f00026]: S.I. 1992/3279.

[^f00027]: S.I. 1993/3227.

[^f00028]: S.I. 1991/2680: the Regulations were amended by regulation 32(1) of the Utilities Supply and Works Contracts Regulations 1992 and regulation 31 of the Public Supply Contracts Regulations 1995 (S.I. 1995/201).

[^f00029]: S.I. 1993/3228: the Regulations were amended by regulation 31(2) of the Public Supply Contracts Regulations 1995 (S.I. 1995/201).

[^f00030]: S.I. 1995/201.

[^f00031]: In accordance with regulation 11.

[^f00032]: In accordance with regulation 11.

[^f00033]: In accordance with regulation 11.

[^f00034]: In accordance with regulation 11.

[^f00035]: 1991 c. 56.

[^f00036]: 1980 c. 45.

[^f00037]: 1994 c. 39.

[^f00038]: 1989 c. 29.

[^f00039]: S.I. 1992/231 (N.I. 1).

[^f00040]: 1986 c. 44; section 7(1) was amended by section 5 of the Gas Act 1995 (c. 45).

[^f00041]: S.I. 1977/596 (N.I. 7).

[^f00042]: 1989 c. 29.

[^f00043]: 1934 c. 36.

[^f00044]: 1964 c. 28(N.I.).

[^f00045]: 1994 c. 21.

[^f00046]: 1969 c. 35(N.I.).

[^f00047]: 1986 c. 31.

[^f00048]: 1971 c. 15(N.I.).

[^f00049]: 1964 c. 40.

[^f00050]: 1970 c. 1(N.I.).

[^f00051]: 1985 c. 6; section 736 was substituted by section 144(1) of the Companies Act 1989 (c. 40); section 736A (inserted by the same provision of the 1989 Act) supplements section 736.

[^f00052]: 1985 c. 67.

[^f00053]: 1984 c. 32.

[^f00054]: 1967 c. 37(N.I.).

[^f00055]: 1984 c. 12.

[^f00056]: Cmnd. 2073, as adjusted by the Protocol signed at Brussels on 17th March 1993 (Cmnd. 2183).

[^f00057]: 1993 c. 51.

[^f00058]: CPC stands for the Central Product Classification of the United Nations.