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The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013

Type Statutory-Instrument

Publication 2013-06-27

Last updated 2025-02-24

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(a) in subsection (1) (duty to provide local authorities with records), after “every sewerage undertaker”, there were inserted “ and every licensed infrastructure provider ”; and

(b) in subsections (2) (local authority to make records available) and (4) (enforcement), after “a sewerage undertaker” each time they appear, there were inserted “ or a licensed infrastructure provider ”.

(5) Section 201 (publication of certain information and advice) applies as if, in subsection (1)(b), after “authorised”, there were inserted “ or regulated ”.

(6) Section 202 (duties of undertakers and water supply licensees and sewerage licensees to furnish the Secretary of State with information) applies as if—

(a) in the title, after “undertakers” there were inserted “ etc ”;

(b) in subsection (1A) (duties of water supply licensees and sewerage licensees to furnish information), in paragraph (a), after “authorised”, there were inserted “ or regulated ”; and

(c) in subsection (5) (enforcement under section 18 of the Act), for “or sewerage licensee” there were substituted “ , sewerage licensee or licensed infrastructure provider ”.

(7) Section 203 (power to acquire information for enforcement purposes) applies as if—

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

(b) subsections (4) and (5) (offences) were repealed;

(iii) any licensed infrastructure provider carrying out functions using the supply system or sewerage system of any such undertaker”

(8) Section 205 (exchange of metering information between service providers) applies as if, in subsection (4), after paragraph (a), there were inserted—

(aa) any licensed infrastructure provider; and

Powers of direction conferred on the Secretary of State in relation to national security and civil emergencies

15

Section 208 (directions in the interests of national security) applies as if—

(a) in subsection (1) (general power of direction)—

(i) for “or sewerage licensee” there were substituted “ , sewerage licensee or licensed infrastructure provider ”; and

(ii) for “or licensee” there were substituted “ , licensee or provider ”;

(b) in subsection (2) (power of direction in particular cases)—

(i) for “or sewerage licensee” there were substituted “ , sewerage licensee or licensed infrastructure provider ”; and

(ii) for “or licensee” there were substituted “ , licensee or provider ”; and

(c) in subsection (3) (duty of relevant undertakers and water supply licensees and sewerage licensees to comply with a direction), for “or sewerage licensee”, in both places it occurs, there were substituted “ , sewerage licensee or licensed infrastructure provider ”.

General provisions

16

(1) Section 212 (judicial disqualification) applies as if—

(a) after “a relevant undertaker”, there were inserted “ or a licensed infrastructure provider ”; and

(b) after “that undertaker”, there were inserted “ or licensed infrastructure provider ”.

(2) Section 219 (general interpretation) applies as if—

(a) in subsection (1) (definitions)—

(i) for the definition of “customer or potential customer” there were substituted—

“customer or potential customer” means— 1. in relation to a company holding an appointment under Chapter 1 of Part 2 of this Act— 1. any person for or to whom that company provides any services in the course of carrying out the functions of a water undertaker or sewerage undertaker (other than a water supply licensee or sewerage licensee); or 2. any person who might become such a person on making an application for the purpose to the company; and 2. in relation to a licensed infrastructure provider— 1. any person for or to whom that licensed infrastructure provider provides any services in the course of carrying out its functions; or 2. any person for or to whom that licensed infrastructure provider might provide any services in the course of carrying out its functions;

(ii) for the definition of “functions” there were substituted—

“functions” means— 1. in relation to a licensed infrastructure provider, the activities regulated by its project licence and any statutory functions conferred or imposed on it in consequence of its project licence; and 2. in relation to a relevant undertaker, the functions of the undertaker under or by virtue of any enactment and shall be construed subject to section 217 above;

(iii) in the definition of “protected land”, after “ “protected land”,” there were inserted “ in relation to a company which is a licensed infrastructure provider means any land which, or interest or right in or over land which, is held by that company for purposes connected with the carrying out of its functions and, ”; and

(iv) the following definitions were inserted at the appropriate place—

“project licence” must be construed in accordance with Chapter 1A of Part 2 above;

“the Regulations” means the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013;

; and

(b) after subsection (4A) (references to the supply system of a water undertaker), there were inserted—

(4B) In this Act, “incumbent undertaker”, “infrastructure”, “infrastructure project” and “licensed infrastructure provider” each have the meaning given in the Regulations.

SCHEDULE 2 — Application of the Procurement Act 2023

PART 1

Provision applied	Modification
Section 1	Subsection (1)(b) does not apply, and the remaining provisions apply as if references to “covered procurement” were omitted
Section 2
Section 4
Section 6	Subsections (5) and (6) do not apply
Section 12
Section 15
Section 16
Section 18
Section 19	Subsection (9) does not apply
Section 20	Subsection (9) does not apply
Section 21
Section 22
Section 23	Subsection (6) does not apply
Section 24
Section 25
Section 26
Section 27
Section 28
Section 30
Section 31
Section 34	Subsection (7) does not apply
Section 35	Subsection (3) does not apply
Section 40
Section 43
Section 44
Section 45	Subsection (9) does not apply
Section 46	Subsection (11) does not apply
Section 47	Subsection (5)(c) does not apply
Section 48
Section 49
Section 50
Section 51	In subsection (3), only paragraphs (c), (d) and (e) apply, and paragraph (c) applies as though it referred only to section 43 (switching to direct award)
Section 54	Entries relating to light touch contracts do not apply
Section 56
Section 57
Section 58
Section 59	Subsection (1)(a)(iv) and (v) do not apply
Section 62	Only subsections (3) and (4) apply
Section 74	Subsection (1) applies as though the reference to a “convertible contract” were omitted; subsection (2) does not apply
Section 78
Section 79
Section 81	Applies as though the word “covered” were omitted every time it appears
Section 82	Applies as though the word “covered” were omitted
Section 83	Applies as though the word “covered” were omitted
Section 89
Section 90
Section 94
Section 96	Applies as though the word “covered” were omitted both times it appears
Section 98	Applies as though for the words “this Act” were substituted “the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013”, and as though, for subsection (4)(a) were substituted “the day on which the contracting authority decides not to award the contract”. Subsection (5) does not apply.
Section 99
Section 100	Subsection (6) does not apply
Section 101	Subsection (1) applies as if the words “or a convertible contract” were omitted; subsection (4) does not apply
Section 102
Section 103
Section 104
Section 105
Section 110
Section 123	Subsections (4) and (5) do not apply
Schedule 1	Only paragraphs 4 and 5 apply
Schedule 3	Paragraph 3 does not apply
Schedule 4
Schedule 6
Schedule 7
Schedule 8	Paragraphs 2, 3, 10 and 11 do not apply
Schedule 9

PART 2 Signed

Richard Benyon — Parliamentary Under Secretary of State — 2013-06-27

Explanatory note

(This note is not part of the Regulations)

Footnotes

1991 c. 56; sections 36A to 36F were inserted by section 35(1) of the Flood and Water Management Act 2010 (c. 29). Section 213 was amended by section 35(2) of the Flood and Water Management Act 2010. There are other amendments, but none is relevant.

See the definition of “English undertaker” in section 36E(2)(a) of the Water Industry Act 1991; section 36E was inserted by section 35(1) of the Flood and Water Management Act 2010. The powers to make regulations in relation to infrastructure which is provided or to be provided for the use of one or more Welsh undertakers are exercisable by the Welsh Ministers. See the definition of “Welsh undertaker” in section 36E(2)(b) of the Water Industry Act 1991. The functions of the Secretary of State under section 213 of the Water Industry Act 1991 were exercisable by the National Assembly for Wales (“the Assembly”) to the same extent as the powers to which that section applies were exercisable by the Assembly by virtue of article 2 of the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672); see the entry in Schedule 1 for the Water Industry Act 1991 as substituted by paragraph (e) of Schedule 3 to the National Assembly for Wales (Transfer of Functions) Order 2000 (S.I. 2000/253) and amended by section 100(2) of the Water Act 2003 (c. 37); there are other amendments but none is relevant. By virtue of section 162 of, and paragraph 30 of Schedule 11 to, the Government of Wales Act 2006 (c. 32), functions conferred on the Assembly are exercisable by the Welsh Ministers. An amendment by the Flood and Water Management Act 2010 of another enactment does not prevent the continued operation of any transfer of functions by or by virtue of the Government of Wales Act 1998 (c. 38) or 2006 irrespective of whether the amendment amends an existing function or confers a new function (see section 49(6) of the Flood and Water Management Act 2010).

Section 36G was inserted by section 35(1) of the Flood and Water Management Act 2010.

Section 94 was amended by sections 88(2) and 97(1) and (3) of the Water Act 2003. There are other amendments but none is relevant. By virtue of section 36(2) of the Water Act 2003, each reference to the Director General of Water Services in the Act has effect as a reference to the Water Services Regulation Authority.

S.I. 1994/2841, as amended by section 120 of, and paragraph 233 of Schedule 22 to, the Environment Act 1995 (c. 25), S.I.2003/1788, 2005/2035, 2010/675 and 2011/556.

2006 c. 46.

Section 2 was amended by section 54 of, and Schedule 10 to, the Competition Act 1998 (c. 41), section 39 of the Water Act 2003 and by section 278 of, and Schedule 25 to, the Enterprise Act 2002 (c. 40).

Section 219(1) was amended by section 101(1) of, and Schedules 7 and 8 to, the Water Act 2003, and by S.I. 2009/1947. There are other amendments, but none is relevant.

The provisions in Chapter 1 of Part 5 were amended by sections 36 and 53 of the Competition and Service (Utilities) Act 1992 (c. 43), section 120 of, and Schedule 22 to, the Environment Act 1995, sections 3 to 9 and 15 of, and Schedule 3 to, the Water Industry Act 1999 (c. 9), sections 59 and 101(1) of, and Schedule 8 to, the Water Act 2003 and section 45 of the Flood and Water Management Act 2010. There are other amendments, but none is relevant.

Section 154B was inserted by section 2 of the Water Industry (Financial Assistance) Act 2012 (c. 8).

Section 102 was amended by section 96(1) of the Water Act 2003.

S.I. 2006/5, as amended by S.I. 2007/3542, 2008/2256, 2009/2992, 2011/1043, 1848, 2053 and 3058.

S.I. 2006/6, as amended by S.I. 2007/3542, 2008/2256, 2848, 2009/3100, 2011/1043, 1848 and 2053.

Section 112 was amended by section 36(2) of the Water Act 2003 and by section 42(4) of the Flood and Water Management Act 2010, although the latter provision is not yet in force.

2006 c. 46.

S.I. 2008/409.

Section 18 was amended by sections 49 and 101(1) of, and Schedule 8 to, the Water Act 2003.

2002 c. 40.

S.I. 2009/2477.

Section 6 was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 17A and the other provisions in Chapter 1A of Part 2 were inserted by section 56 of, and Schedule 4 to, the Water Act 2003.

Established under article 3 of the Natural Resources Body for Wales (Establishment) Order 2012 (S.I. 2012/1903 (W. 230)).

Schedule 2 was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003. Schedule 2 was also amended by section 34 of, and Schedule 5 to, the Flood and Water Management Act 2010, although those provisions are not yet in force.

Section 19 was amended by section 54 of, and Schedule 10 to, the Competition Act 1998, section 101(1) of, and Schedule 8 to, the Water Act 2003, S.I. 2000/1297 and 2010/996.

Section 20 was amended by sections 49 and 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 22 was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003.

Sections 22A to 22F were inserted by section 48 of the Water Act 2003.

Section 249 was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 23 was amended by was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003. Section 23 was also amended by section 34 of, and Schedule 5 to, the Flood and Water Management Act 2010, although the provisions are only in force for limited purposes.

Section 24 was amended by was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003. Section 24 was also amended by section 34 of, and Schedule 5 to, the Flood and Water Management Act 2010, although the provisions are not yet in force.

Schedule 3 was amended by was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003 and by S.I.2009/1941. Schedule 3 was repealed by section 34 of, and Schedule 5 to, the Flood and Water Management Act 2010, although the provisions are not yet in force.

Section 25 was amended by was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 26 was amended by was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 27 was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003 and section 278 of, and Schedule 25 to, the Enterprise Act 2002.

Section 35A was inserted by section 50 of the Water Act 2003.

Section 94 was amended by sections 88 and 97 of the Water Act 2003, although the provisions of section 88 are not yet in force.

Section 142 was amended by section 120 of, and Schedule 22 to, the Environment Act 1995, and by section 3 of the Water Industry Act 1999 (c. 9).

Section 143 was amended by section 120 of, and Schedule 22 to, the Environment Act 1995, and by sections 3 and 4 of the Water Industry Act 1999.

Section 144A was inserted by section 6 of the Water Industry Act 1999.

Section 150B was inserted by section 15 of, and Schedule 3 to, the Water Industry Act 1999.

Section 158 was amended by section 40 of the Competition and Service (Utilities) Act 1992, sections 97 and 101(1) of, and Schedule 8 to, the Water Act 2003 and S.I. 2005/268.

Section 159 was amended by section 97 of the Water Act 2003.

Section 161 was amended by section 120 of, and Schedule 22 to, the Environment Act 1995.

Section 179 was amended by sections 92, 97 and 101(1) of, and Schedule 8 to, the Water Act 2003. Section 179 was also amended by sections 62, 86 and 146 of, and Schedules 13, 14 and 23 to, the Tribunals, Courts and Enforcement Act 2007 (c. 15), although the provisions are not yet in force.

Schedule 12 was amended by section 56 of the Competition and Service (Utilities) Act 1992, section 97 of the Water Act 2003 and S.I. 2009/1307.

Section 181 was amended by section 101(1) of, and Schedule 7 to, the Water Act 2003.

Schedule 13 was amended by section 67 of, and Schedule 9 to, the Coal Industry Act 1994 (c. 21); section 120 of, and Schedule 22 to, the Environment Act 1995; section 37 of, and Schedule 5 to the Transport Act 2000 (c. 38); section 406 of, and Schedule 17 to, the Communications Act 2003 (c. 21); section 143 of, and Schedule 19 to, the Energy Act 2004 (c. 20); and by S.I.2001/1149. The effect of certain provisions in Schedule 13 was modified by section 16 of, and Schedule 4 to, the Gas Act 1986 (c. 44) and section 76 of the Utilities Act 2000 (c. 27).

Section 192 was amended by section 47 of the Competition and Service (Utilities) Act 1992.

Section 195 was amended by section 15 of, and Schedule 3 to, the Water Industry Act 1999 and sections 48 and 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 195A was inserted by section 51 of the Water Act 2003.

Section 199 was amended by section 97 of the Water Act 2003.

Section 201 was amended by section 278 of, and Schedule 25 to, the Enterprise Act 2002 and section 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 202 was amended by section 120 of, and Schedule 22 to, the Environment Act 1995 and section 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 203 was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 205 was amended by section 101(1) of, and Schedule 8 to, the Water Act 2003.

Section 208 was amended by section 101(1) of, and Schedules 7 and 8 to, the Water Act 2003.

(45) (1) The obligation on an incumbent undertaker to comply with the provisions of these Regulations, other than regulation 30(9), is a duty owed to an economic operator. (2) A breach of the duty owed in accordance with paragraph (1) is actionable by any economic operator which in consequence suffers, or risks suffering, loss or damage and those proceedings shall be in the High Court. (3) Subject to paragraphs (4) to (6), such proceedings must be started within 30 days beginning with the date on which the economic operator first knew or ought to have known that grounds for starting proceedings had arisen. (4) Paragraph (3) does not require proceedings to be started before the end of any of the following periods— (a) where the proceedings relate to a decision which is sent to the economic operator by facsimile or electronic means, 10 days beginning with— (i) the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision; or (ii) if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons; (b) where the proceedings relate to a decision which is sent to the economic operator by other means, whichever of the following periods ends first— (i) 15 days beginning with the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision; or (ii) 10 days beginning with— (aa) the day after the date on which the decision is received, if the decision is accompanied by a summary of the reasons for the decision; or (bb) if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons; and (c) where sub-paragraphs (a) and (b) do not apply but the decision is published, 10 days beginning with the day on which the decision is published. (5) Subject to paragraph (6), the Court may extend the time limit imposed by paragraph (3) where the Court considers that there is good reason for doing so. (6) The Court must not exercise its power under paragraph (5) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. (7) For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued. (8) Subject to paragraph (9), but otherwise without prejudice to any other powers of the Court in proceedings brought under this regulation, the Court may— (a) by interim order— (i) suspend the procedure leading to the award of the contract or the procedure leading to the determination of a design contest in relation to the award of a contract of which the breach of duty owed in accordance with paragraph (1) is alleged; or (ii) suspend the implementation of any decision or action taken by the incumbent undertaker in the course of following such a procedure; and (b) if satisfied that a decision or action taken by an incumbent undertaker was a breach of the duty owed in accordance with paragraph (1)— (i) order the setting aside of that decision or action, or order the incumbent undertaker to amend any document; (ii) award damages to an economic operator which has suffered loss or damage as a consequence of the breach; or (iii) do both of those things. (9) In proceedings under this regulation 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 in accordance with paragraph (1) if the contract in relation to which the breach occurred has been entered into. (10) Where, in proceedings under this regulation, the Court is satisfied that an economic operator would have had a real chance of being awarded a contract or winning a design contest if that chance had not been adversely affected by a breach of the duty owed to it by the incumbent undertaker in accordance with paragraph (1), the economic operator shall be entitled to damages amounting to its costs in preparing its tender and in participating in the procedure leading to the award of the contract or its costs of participating in the procedure leading to the determination of the design contest. (11) Paragraph (10) does not affect a claim by an economic operator that it has suffered other loss or damage or that it is entitled to relief other than damages, and is without prejudice to the matters on which an economic operator may be required to satisfy the Court in respect of any other such claim.

Editorial notes

See the definition of “English undertaker” in section 36E(2)(a) of the Water Industry Act 1991; section 36E was inserted by section 35(1) of the Flood and Water Management Act 2010. The powers to make regulations in relation to infrastructure which is provided or to be provided for the use of one or more Welsh undertakers are exercisable by the Welsh Ministers. See the definition of “Welsh undertaker” in section 36E(2)(b) of the Water Industry Act 1991. The functions of the Secretary of State under section 213 of the Water Industry Act 1991 were exercisable by the National Assembly for Wales (“the Assembly”) to the same extent as the powers to which that section applies were exercisable by the Assembly by virtue of article 2 of the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672); see the entry in Schedule 1 for the Water Industry Act 1991 as substituted by paragraph (e) of Schedule 3 to the National Assembly for Wales (Transfer of Functions) Order 2000 (S.I. 2000/253) and amended by section 100(2) of the Water Act 2003 (c. 37); there are other amendments but none is relevant. By virtue of section 162 of, and paragraph 30 of Schedule 11 to, the Government of Wales Act 2006 (c. 32), functions conferred on the Assembly are exercisable by the Welsh Ministers. An amendment by the Flood and Water Management Act 2010 of another enactment does not prevent the continued operation of any transfer of functions by or by virtue of the Government of Wales Act 1998 (c. 38) or 2006 irrespective of whether the amendment amends an existing function or confers a new function (see section 49(6) of the Flood and Water Management Act 2010).

Section 36G was inserted by section 35(1) of the Flood and Water Management Act 2010.

S.I. 1994/2841, as amended by section 120 of, and paragraph 233 of Schedule 22 to, the Environment Act 1995 (c. 25), S.I. 2003/1788, 2005/2035, 2010/675 and 2011/556.