The Utilities Contracts (Scotland) Regulations 2012

Regulation 3

SCHEDULE 1 UTILITIES

Relevant Person	Activity
CATEGORY 1 – WATER
PART A
Scottish Water.	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.
A company holding an appointment as a water undertaker or a sewerage undertaker under the Water Industry Act 1991(1).
The Department for Regional Development (Northern Ireland).	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.
The Water Services Agency (Northern Ireland).
	3. The disposal or treatment of sewage.
PART B
A relevant person not specified in Part C.	4. The supply of drinking water to a network referred to in paragraph 1.
PART C
A relevant person other than a contracting authority who produces drinking water because its consumption is necessary for the purpose of carrying out an activity not specified in the second column of this Schedule and who supplies only the excess to a network which is referred to in paragraph 1.	5. The supply of drinking water to a network referred to in paragraph 1 but only if the drinking water supplied in the period of 36 months ending at the relevant time as defined in regulation 11(19) has exceeded 30% of the total produced by the utility in that period.
CATEGORY 2 – ELECTRICITY
PART D
A person licensed under section 6 of the Electricity Act 1989(2).	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.
A person licensed under article 10(1) of the Electricity (Northern Ireland) Order 1992(3).
PART E
A relevant person not specified in Part F.	7. The supply of electricity to a network referred to in paragraph 6.
PART F
A relevant person other than a contracting authority who produces electricity because its use is necessary for the purpose of carrying out an activity not specified in the second column of this Schedule and who supplies only the excess to a network referred to in paragraph 6.	8. The supply of electricity to a network referred to in paragraph 6 but only if the electricity supplied in the period of 36 months ending at the relevant time as defined in regulation 11(19) has exceeded 30% of the total produced by the utility in that period.
CATEGORY 3 – GAS
PART G
A gas transporter as defined in section 7(1) of the Gas Act 1986(4).	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.
A person declared to be an undertaker for the supply of gas under article 8 of the Gas (Northern Ireland) Order 1996(5).
PART H
A relevant person not specified in Part I.	10. The supply of gas to a network referred to in paragraph 9.
PART I
A relevant person other than a contracting authority who produces gas only as the unavoidable consequence of carrying out an activity not specified in the second column of this Schedule and who supplies gas for the sole purpose of the economic exploitation of the production to a network referred to in paragraph 9.	11. The supply of gas to a network referred to in paragraph 9 but only if the total consideration payable in the period of 36 months ending at the relevant time as defined in regulation 11(19) on account of such supply has exceeded 20% of the total turnover of the utility in that period.
CATEGORY 4 – HEAT
PART J
A local authority.	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.
A person licensed under section 6(1)(a) of the Electricity Act 1989 whose licence includes the provisions referred to in section 10(3) of that Act.
The Northern Ireland Housing Executive.
PART K
A relevant person not specified in Part L.	13. The supply of heat to a network referred to in paragraph 12.
PART L
A relevant person other than a contracting authority who produces heat as the unavoidable consequence of carrying out an activity not specified in the second column of this Schedule and who supplies heat for the sole purpose of the economic exploitation of the production to a network referred to in paragraph 12.	14. The supply of heat to a network referred to in paragraph 12 but only if the total consideration payable in the 36 months ending at the relevant time as defined in regulation 11(19) on account of such supply has exceeded 20% of the total turnover of the utility in that period.
CATEGORY 5 – EXPLORATION AND EXTRACTION OF OIL AND GAS
PART M
A person operating by virtue of a licence granted or having effect as if granted under the Petroleum Act 1998(6).	15. The exploitation of a geographical area for the purpose of exploring for or extracting oil or gas.
A person licensed under the Petroleum (Production) Act (Northern Ireland) 1964(7).
CATEGORY 6 – COAL AND OTHER SOLID FUEL
PART N
Any licensed operator (within the meaning of the Coal Industry Act 1994(8)).	16. The exploitation of a geographical area for the purposes of exploring for or extracting coal or other solid fuel.
The Department of Enterprise, Trade and Investment (Northern Ireland).
A person operating by virtue of a prospecting licence, a mining lease, a mining licence or a mining permission as defined by section 57(1) of the Mineral Development Act (Northern Ireland) 1969(9).
CATEGORY 7 – TRANSPORT
PART O
A local authority.	17. The exploitation of a geographical area for the purpose of providing airport or other terminal facilities to carriers by air.
An airport operator within the meaning of the Airports Act 1986(10) who has the management of an airport subject to economic regulation under Part IV of that Act
Highlands and Islands Airports Limited.
An airport operator within the meaning of the Airports (Northern Ireland) Order 1994(11).
Any other relevant person.
PART P
A harbour authority within the meaning of section 57 of the Harbours Act 1964(12).	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.
British Waterways Board.
A local authority.
A harbour authority as defined by section 38(1) of the Harbours Act (Northern Ireland) 1970(13).
Any other relevant person.
PART Q
Network Rail.	19. The provision or operation of a network providing a service to the public in the field of transport by railway.
Eurotunnel plc.
Scottish Ministers
Strathclyde Passenger Transport Executive
A local transport authority or passenger authority within the meaning of section 124(3) of the Transport Act 2000(14) which has made a quality contracts scheme under section 124(4) of that Act.
A person awarded a quality contract within the meaning of section 124 of the Transport Act 2000
A Regional Transport Partnership created by virtue of section 1 of the Transport (Scotland) Act 2005(15)
Any other relevant person.
PART R
A local transport authority within the meaning of section 82(1) of the Transport (Scotland) Act 2001(16)	20. The provision or operation of a network providing a service to the public in the field of transport by automated systems, tramway, trolleybus, or cable.
Any other relevant person.
PART S
A local transport authority within the meaning of section 82(1) of the Transport (Scotland) Act 2001 which has made a quality contracts scheme under section 13(4) of that Act.	21. The provision or operation of a network providing a service to the public in the field of transport by bus.
A person awarded a quality contract within the meaning of section 13 of the Transport (Scotland) Act 2001.
Any other relevant person.
CATEGORY 8 – POSTAL SERVICES
PART T
Royal Mail Group Limited.	22. Activities relating to the provision of postal services. For the purposes of this paragraph:
Any other relevant person.
	(a) ‘postal services’ means services consisting of the clearance, sorting, routing and delivery of postal items; and
	(b) ‘postal items’ means items addressed in the final form in which they are to be carried, irrespective of weight. In addition to items of correspondence, such items also include books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value, irrespective of weight.
	23. Activities relating to the provision of the following services, but only where the conditions specified in paragraph 24 are satisfied:
	(a) mail service management services (services both preceding and subsequent to dispatch, such as “mailroom management services”);
	(b) added-value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services and transmission of registered electronic mail);
	(c) services concerning postal items not included in paragraph 22, such as direct mail bearing no address;
	(d) financial services which are—
	(i) specified in category 6 of Part A of Schedule 3; or
	(ii) referred to in regulation 6(l) including in particular postal money orders and postal giro transfers;
	(e) philatelic services; and
	(f) logistics services (services combining physical delivery and/or warehousing with other non-postal functions).
	24. In relation to any service described in paragraph 23, the conditions are that—
	(a) the service is provided by a relevant person which also provides services within paragraph 22; and
	(b) the conditions set out in Article 30(1) of the Utilities Directive are not satisfied in respect of the services within paragraph 22 which the relevant person is providing.

Regulation 2(1)

SCHEDULE 2 ACTIVITIES CONSTITUTING WORKS

Division	Section F Group	Class	Subject	Construction Notes	CPV Code
45			Construction	Construction of new buildings and works, restoring and common repairs	45000000
	45.1		Site preparation		45100000
		45.11	Demolition and wrecking of buildings; earth moving	Demolition of buildings and other structures	45110000
				Clearing of building sites
				Earth moving: excavation, landfill, levelling and grading of construction sites, trench digging, rock removal, blasting, etc.
				Site preparation for mining:
				overburden removal and other development and preparation of mineral properties and sites
				Building site drainage
				Drainage of agricultural or forestry land
		45.12	Test drilling and boring	Test drilling, test boring and core sampling for construction, geo-physical, geological or similar purposes	45120000
	45.2		Building of complete constructions or parts thereof; civil engineering		45200000
		45.21	General construction of buildings and civil engineering works	Construction of all types of buildings	45210000 Except: 45213316 45220000 45231000 45232000
				Construction of civil engineering constructions
				Bridges, including those for elevated highways, viaducts, tunnels and subways
				Long-distance pipelines, communication and power lines
				Urban pipelines, urban communication and power lines
				Ancillary urban works
				Assembly and erection of prefabricated constructions on the site
		45.22	Erection of roof covering and frames	Erection of roofs	45261000
				Roof covering
				Waterproofing
		45.23	Construction of highways, roads, airfields and sport facilities	Construction of highways, streets, roads, other vehicular and pedestrian ways	45212212 and DA03 45230000
				Construction of railways	Except: 45231000 45232000 45234115
				Construction of airfield runways
				Construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations
				Painting of markings on road surfaces and car parks
		45.24	Construction of water projects	Construction of:	45240000
				waterways, harbour and river works, pleasure ports (marinas), locks, etc.
				dams and dykes
				dredging
				subsurface work
		45.25	Other construction work involving special trades	Construction activities specialising in one aspect common to different kinds of structures, requiring specialised skill or equipment	45250000 45262000
				Construction of foundations, including pile driving
				Water well drilling and construction, shaft sinking
				Erection of non-self-manufactured steel elements
				Steel bending
				Bricklaying and stone setting
				Scaffolds and work platform erecting and dismantling, including renting of scaffolds and work platforms
				Erection of chimneys and industrial ovens
	45.3		Building installation		45300000
		45.31	Installation of electrical wiring and fittings	Installation in buildings or other construction projects of:	45213316 45310000 Except: 45316000
				electrical wiring and fittings
				telecommunications systems
				electrical heating systems
				residential antennas and aerials
				fire alarms
				burglar alarm systems
				lifts and escalators
				lightning conductors, etc.
		45.32	Insulation work activities	Installation in buildings or other construction projects of thermal, sound or vibration insulation	45320000
		45.33	Plumbing	Installation in buildings or other construction projects of:	45330000
				plumbing and sanitary equipment
				gas fittings
				heating, ventilation, refrigeration or air-conditioning equipment and ducts
				sprinkler systems
		45.34	Other building installation	Installation of illumination and signalling systems for roads, railways, airports and harbours	45234115 45316000 45340000
				Installation in buildings or other construction projects of fittings and fixtures n.e.c.
	45.4		Building completion		45400000
		45.41	Plastering	Application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials	45410000
		45.42	Joinery installation	Installation of non-self-manufactured doors, windows, door and window frames, fitted kitchens, staircases, shop fittings and the like, of wood or other materials	45420000
				Interior completion such as ceilings, wooden wall coverings, movable partitions, etc.
		45.43	Floor and wall covering	Laying, tiling, hanging or fitting in buildings or other construction projects of:	45430000
				ceramic, concrete or cut stone wall or floor tiles
				parquet and other wood floor coverings, carpets and linoleum floor coverings, including of rubber or plastic
				terrazzo, marble, granite or slate floor or wall coverings
				wallpaper
		45.44	Painting and glazing	Interior and exterior painting of buildings	45440000
				Installation of glass, mirrors, etc.
				Painting of civil engineering structures
		45.45	Other building completion	Installation of private swimming pools	45212212 and DA04 45450000
				Steam cleaning, sand blasting and similar activities for building exteriors
				Other building completion and finishing work n.e.c.
	45.5		Renting of construction or demolition equipment with operator		45500000
		45.50	Renting of construction or demolition equipment with operator		45500000

Regulation 2(4)

SCHEDULE 3 CATEGORIES OF SERVICES

Category	Services	CPC Reference No	CPV Code
		Part A
1	Maintenance and repair of vehicles and equipment	6112, 6122, 633, 886	from 50100000-6 to 50884000-5 (except for 50310000-1 to 50324200-4 and 50116510-9, 50190000-3, 50229000-6, 50243000-0), and from 51000000-9 to 51900000-1
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	from 60100000-9 to 60183000-4 (except 60160000-7, 60161000-4, 60220000-6), and from 64120000-3 to 64121200-2
3	Transport by air but not transport of mail	73 (except 7321)	from 60410000-5 to 60424120-3 (except 60411000-2, 60421000-5), and 60500000-3, and from 60440000-4 to 60445000-9
4	Transport of mail by land, other than by rail, and by air	71235, 7321	60160000-7, 60161000-4 60411000-2, 60421000-5
5	Telecommunications services	752	from 64200000-8 to 64228200-2, 72318000-7, and from 72700000-7 to 72720000-3
6	Financial services:	ex 81, 812, 814	from 66100000-1 to 66720000-3
	(a) Insurance services
	(b) Banking and investment services other than financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments and central bank services
7	Computer and related services	84	from 50310000-1 to 50324200-4, from 72000000-5 to 72920000-5 (except 72318000-7 and from 72700000-7 to 72720000-3), 79342410-4
8	Research and development services where the benefits accrue exclusively to a utility for its use in the conduct of its own affairs and the services are to be wholly paid for by a utility	85	from 73000000-2 to 73436000-7 (except 73200000-4, 73210000-7, 73220000-0)
9	Accounting, auditing and book-keeping services	862	from 79210000-9 to 79223000-3
10	Market research and public opinion polling services	864	from 79300000-7 to 79330000-6 and 79342310-9, 79342311-6
11	Management consultancy services and related services but not arbitration and conciliation services	865, 866	from 73200000-4 to 73220000-0, from 79400000-8 to 79421200-3 and 79342000-3, 79342100-4, 79342300-6, 79342320-2, 79342321-9, 79910000-6, 79991000-7, 98362000-8
12	Architectural services; engineering services and integrated engineering services; urban planning and landscape engineering services; related scientific and technical consulting services; technical testing and analysis services	867	from 71000000-8 to 71900000-7 (except 71550000-8) and 79994000-8
13	Advertising services	871	from 79341000-6 to 79342200-5 (except 79342000-3 and 79342100-4)
14	Building-cleaning services and property management services	874, 82201 to 82206	from 70300000-4 to 70340000-6, and from 90900000-6 to 90924000-0
15	Publishing and printing services on a fee or contract basis	88442	from 79800000-2 to 79824000-6, and from 79970000-6 to 79980000-7
16	Sewage and refuse disposal services; sanitation and similar services	94	from 90400000-1 to 90743200-9 (except 90712200-3), from 90910000-9 to 90920000-2 and 50190000-3, 50229000-6, 50243000-0
		Part B
17	Hotel and restaurant services	64	55100000-1 to 55524000-9 and from 98340000-8 to 98341100-6
18	Transport by rail	711	from 60200000-0 to 60220000-6
19	Transport by water	72	from 60600000-4 to 60653000-0, and from 63727000-1 to 63727200-3
20	Supporting and auxiliary transport services	74	from 63000000-9 to 63734000-3 (except 63711200-8, 63712700-0, 63712710-3, and from 63727000-1 to 63727200-3), and 98361000-1
21	Legal services	861	from 79100000-5 to 79140000-7
22	Personal placement and supply services	872	from 79600000-0 to 79635000-4 (except 79611000-0, 79632000-3, 79633000-0), and from 98500000-8 to 98514000-9
23	Investigation and security services, other than armoured car services	873 (except 87304)	from 79700000-1 to 79723000-8
24	Education and vocational education services	92	from 80100000-5 to 80660000-8 (except 80533000-9, 80533100-0, 80533200-1)
25	Health and social services	93	79611000-0 and from 85000000-9 to 85323000-9 (except 85321000-5 and 85322000-2)
26	Recreational, cultural and sporting services	96	from 79995000-5 to 79995200-7, and from 92000000-1 to 92700000-8 (except 92230000-2, 92231000-9, 92232000-6)
27	Other services

Regulations 2(1) and 4(4)

SCHEDULE 4 EXTENSION TO NON-MEMBER STATES

Relevant States	Agreement with the European Union which extends the provisions relating to public procurement to the relevant State	Statutory provisions designating the agreements as European Treaties
1. Iceland	European Economic Area Agreement(17)	European Economic Area Act 1993(18), section 1.
2. Liechtenstein	European Economic Area Agreement	European Economic Area Act 1993, section 1
3. Norway	European Economic Area Agreement	European Economic Area Act 1993, section 1.

Regulations 48 and 50

SCHEDULE 5 CONSEQUENTIAL AMENDMENTS AND REVOCATIONS

Part A

Title	Number	Extent of revocation
1	2	3
The Utilities Contracts (Scotland) Regulations 2006	S.S.I. 2006/2	The whole Regulation.
The Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2007	S.S.I. 2007/565	The whole Regulation insofar as it extends to the Utilities Contracts (Scotland) Regulations 2006.
The Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2008	S.S.I. 2008/94	The whole Regulation insofar as it extends to the Utilities Contracts (Scotland) Regulations 2006.
The Public Contracts and Utilities Contracts (Common Procurement Vocabulary Codes) Amendment (Scotland) Regulations 2008	S.S.I. 2008/291	The whole Regulation insofar as it extends to the Utilities Contracts (Scotland) Regulations 2006.
The Public Contracts and Utilities Contracts (Postal Services and Common Procurement Vocabulary Codes) Amendment (Scotland) Regulations 2008	S.S.I. 2008/376	The whole Regulation insofar as it extends to the Public Contracts (Scotland) Regulations 2006.
The Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2009	S.S.I. 2009/428	The whole Regulation insofar as it extends to the Utilities Contracts (Scotland) Regulations 2006.
The Public Contracts and Utilities Contracts (Scotland) Amendment (Amendment) Regulations 2009	S.S.I. 2009/439	The whole Regulation insofar as it extends to the Utilities Contracts (Scotland) Regulations 2006.

Part B

Title	Number	Amendment
1	2	3
The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, as amended	S.S.I. 2003/231	In paragraph 11 of schedule 1, for “the Utilities Contracts (Scotland) Regulations 2006” substitute “the Utilities Contracts (Scotland) Regulations 2012”.
The Cleaner Road Transport Vehicles (Scotland) Regulations 2010	S.S.I. 2010/390	In regulation 2 (interpretation), in the definitions of “contracting entity” and “operator” and in regulation 6(1)(b) (enforcement of duties), for “the Utilities Contracts (Scotland) Regulations 2006” substitute “the Utilities Contracts (Scotland) Regulations 2012”.
The Defence and Security Public Contracts Regulations 2011	S.I. 2011/1848	In regulation 4(d) (contracting authorities) and in regulation 6(4) to (6) (application) for “the Utilities Contracts (Scotland) Regulations” substitute “the Utilities Contracts (Scotland) Regulations 2012”.

(1)

1991 c.56. Section 6 (appointment of relevant undertakers) was amended by section 101 of, and Schedule 8 to, the Water Act 2003 (c.37). By virtue of S.I. 1999/672, as amended by S.I. 2000/253, the functions of the Minister of the Crown with respect to both water and sewerage undertakers under section 6 are now exercisable by the National Assembly for Wales for any undertaking whose area is wholly or mainly in Wales. There are other amendments to this Act which are not relevant to these Regulations.

(2)

1989 c.29. Section 6 was amended by section 30 of the Utilities Act 2000 (c.27) and sections 89,136,143,145 and 197 of, and Schedules 19 and 23 to the Energy Act 2004 (c.20). There are other amendments to this Act which are not relevant to these Regulations.

(3)

S.I. 1992/231 (N.I. 1). Article 10(1) was amended by article 28 and the changes applied to existing licences by article 29 of S.I. 2003/419 (N.I. 6). Article 10(1) was also amended by regulation 47 of the Gas and Electricity (Internal Markets) Regulations (Northern Ireland), S.R. (NI) 2011 No 155. There are other amendments to this Order which are not relevant to these Regulations.

(4)

1986 c.44. Section 7(1) was amended by section 5 of the Gas Act 1995 (c.45), section 76 of the Utilities Act 2000 (c.27), section 197 of, and Schedule 23 to, the Energy Act 2004 (c.20). There are other amendments to this Act which are not relevant to these Regulations.

(5)

S.I. 1996/275 (N.I. 2). Article 8 was amended by article 30 and the changes applied to existing licences by article 31 of S.I. 2003/419 (N.I. 6). Article 89(1) and (2) was also amended by section 58 of the Gas and Electricity (Internal Markets) Regulations (Northern Ireland), S.R. (NI) 2011 No 155. There are other amendments to this Order which are not relevant to these Regulations.

(6)

1998 c.17. There are amendments to this Act which are not relevant to these Regulations.

(7)

1964 c.28 (N.I.). Section 2 was amended by Schedule 3 to the Mineral Development Act (Northern Ireland) 1969 (c.35 N.I.). There are other amendments to this Act which are not relevant to these Regulations.

(8)

1994 c.21. There are amendments to this Act which are not relevant to these Regulations.

(9)

1969 c.35 (N.I.). There are amendments to this Act which are not relevant to these Regulations.

(10)

1986 c.31. There are amendments to this Act which are not relevant to these Regulations.

(11)

S.I. 1994/426 (N.I. 1). There are amendments to this Order which are not relevant to these Regulations.

(12)

1964 c.40. There are amendments to this Act which are not relevant to these Regulations.

(13)

1970 c.1 (N.I.). There are amendments to this Act which are not relevant to these Regulations.

(14)

2000 c.38.

(15)

2005 asp 12.

(16)

2001 asp 2.

(17)

OJ L 1, 3.1.94, p.3 as adjusted by the Protocol signed in Brussels on 17th March 1993 OJ L 1, 3.1.94, p.572.

(18)

1993 c.51.