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The Utilities Contracts (Scotland) Regulations 2006

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2.—(1) In these Regulations–

“attestation system” means a system under which a utility may have its contract award procedures and practices within the scope of the Utilities Directive examined periodically by an independent person or body with a view to obtaining an attestation that at the time of examination those procedures and practices are in conformity with these Regulations and the Community law to which they give effect;

“buyer profile” means a page on the Internet set up by a utility containing one or more of the following: periodic indicative notices, information on ongoing invitations to tender, prospective and concluded contracts, cancelled procedures and useful general information, such as a contact point, a telephone number, a facsimile number, a postal address or an e-mail address;

“carrying out” in relation to a work or works means the construction or the design and construction of that work or those works;

“central purchasing body” means a utility which is a contracting authority and which–

(a)

acquires goods or services intended for one or more utilities;

(b)

awards contracts intended for one or more utilities; or

(c)

concludes framework agreements for work, works, goods or services intended for one or more utilities;

“the Commission” means the European Commission;

“Commission Regulation (EC) No 1564/2005” means Commission Regulation (EC) No. 1564/2005 of 7th September 2005 establishing standard forms for the publication of notices in the framework of public procurement procedures pursuant to Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council(1);

“Common Procurement Vocabulary” means the reference nomenclature applicable to contracts as adopted by Regulation (EC) No. 2195/2002 of 5th November 2002 of the European Parliament and of the Council on the Common Procurement Vocabulary(2);

“contract” means any services contract, supply contract or works contract;

“contract documents” means the invitation to tender for or to negotiate the contract, the proposed conditions of contract, the specifications or descriptions of the goods, services, work or works required by the utility and of the materials or goods to be used in or for such work or works, and all documents supplementary thereto;

“contract notice” means, except in regulation 48, a contract notice sent to the Official Journal in accordance with regulation 16(2)(b);

“contracting authority” has the meaning given to it by regulation 3 of the Public Contracts (Scotland) Regulations 2006(3);

“contractor” means a person who offers on the market work or works and–

(a)

who sought, who seeks, or would have wished, to be the person to whom a works contract is awarded; and

(b)

who is a national of a relevant State and established in a relevant State;

“CPC” means Central Product Classification of the United Nations(4);

“CPV” means Common Procurement Vocabulary;

“design contest” means a competition, particularly in the fields of planning, architecture, civil engineering and data processing–

(a)

which is conducted by or on behalf of a utility and in which that utility invites the entry by the economic operator of plans and designs;

(b)

under the rules of which the plans or designs entered will be judged by a jury;

(c)

under which prizes may or may not be awarded; and

(d)

which enables the utility to acquire the use or ownership of plans or designs selected by the jury;

“disabled person” means any person recognised as disabled within the meaning of the Disability Discrimination Act 1995(5); and “disability” has the same meaning as in that Act;

“dynamic purchasing system” means a completely electronic system of limited duration which is–

(a)

established by a utility to purchase commonly used goods, work, works or services; and

(b)

open throughout its duration for the admission of economic operators which–

(i)

satisfy the selection criteria specified by the utility; and

(ii)

submit an indicative tender to the utility or person operating the system on its behalf which complies with the specification required by that utility or person;

“EC Treaty” means the Treaty establishing the European Economic Community, signed at Rome on 25th March 1957 as amended by the Community Treaties;

“economic operator” has the meaning given to it by regulation 4;

“electronic auction” means a repetitive electronic process for the presentation of prices to be revised downwards or of new and improved values of quantifiable elements of tenders, including price, which–

(a)

takes place after the initial evaluation of tenders; and

(b)

enables tenders to be ranked using automatic evaluation methods;

“electronic means” means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

“established” has the same meaning as in the Community Treaties;

“European standard” has the meaning given to it by regulation 12(1);

“financial year” except where the context otherwise requires, means the period of 12 months ending on the date in any year in respect of which the accounts of a utility are prepared;

“framework agreement” means an agreement or other arrangement between one or more utilities and one or more economic operators which establishes the terms (in particular the terms as to price and where appropriate quantity) under which the economic operator will enter into one or more contracts with a utility in the period during which the framework agreement applies;

“goods” includes electricity, substances, growing crops and things attached to or forming part of the land which are agreed to be severed before the purchase or hire under a supply contract and any ship, aircraft or vehicle;

“Government Procurement Agreement” means the Agreement on Government Procurement between certain parties to the World Trade Organisation (WTO) signed in Marrakesh on 15th April 1994(6);

“GPA” means the Government Procurement Agreement;

“indicative tender” means a tender prepared by an economic operator seeking admission to a dynamic purchasing system which sets out the terms on which it would be prepared to enter into a contract with a utility under the system should that utility propose to award a contract under the system;

“international standard” has the meaning given to it by regulation 12(1);

“Minister” has the meaning given to it by regulation 39;

“Minister of the Crown” means the holder of an office in Her Majesty’s Government in the United Kingdom, and includes the Treasury;

“national of a relevant State” means, in the case of a person who is not an individual, a person formed in accordance with the laws of a relevant State and which has its registered office, central administration or principal place of business in a relevant State;

“negotiated procedure” means a procedure leading to the award of a contract whereby the utility negotiates the terms of the contract with one or more economic operators selected by it;

“Office of Government Commerce” means the office of the Treasury that has that title(7);

“Official Journal” means the Official Journal of the European Union;

“open procedure” means a procedure leading to the award of a contract whereby all interested economic operators may tender for the contract;

“periodic indicative notice” means a notice sent to the Official Journal in accordance with regulation 15;

“Public Sector Directive” means Directive 2004/18/EC of the European Parliament and of the Council of 31st March 2004 on the co ordination of procedures for the award of public works contracts, public supply contracts and public service contracts(8);

“relevant State” has the meaning given to it by regulation 4(4);

“restricted procedure” means a procedure leading to the award of a contract whereby only economic operators selected by the utility may submit tenders for the contract;

“services contract” means a contract, in writing, for consideration (whatever the nature of the consideration) under which a utility engages an economic operator to provide services but does not include either–

(a)

a works contract; or

(b)

a supply contract;

but a contract for both goods and services shall be considered to be a services contract if the value of those services exceeds that of the goods covered by the contract and a contract for services which includes activities specified in Schedule 2 that are only incidental to the principal object of the contract shall be considered to be a services contract;

“services concession contract” means a services contract under which the consideration given by the utility consists of or includes the right to exploit the service or services to be provided under the contract;

“services provider” means a person who offers on the market services and–

(a)

who sought, who seeks, or who would have wished–

(i)

to be the person to whom a services contract is awarded; or

(ii)

to participate in a design contest; and

(b)

who is a national of a relevant State and established in a relevant State;

“ship” includes any boat and any description of a vessel used in navigation;

“substance” means any natural or artificial substance, whether in solid, liquid or gaseous form or in the form of vapour;

“supplier” means a person who offers on the market goods for purchase or hire and–

(a)

who sought, who seeks, or would have wished, to be the person to whom a supply contract is awarded; and

(b)

who is a national of a relevant State and established in a relevant State;

“supply contract” means a contract, in writing, for consideration (whatever the nature of the consideration)–

(a)

for the purchase of goods by a utility (whether or not the consideration is given in instalments and whether or not the purchase is conditional upon the occurrence of a particular event); or

(b)

for the hire of goods by a utility (both where the utility becomes the owner of the goods after the end of the period of hire and where it does not);

and for any siting and installation of those goods, but where, under such a contract, services are also to be provided, the contract shall only be a supply contract where the value of the consideration attributable to the goods and any siting or installation of the goods, is equal to or greater than the value attributable to the services;

“the Utilities Directive” means Directive 2004/17/EC of the European Parliament and of the Council of 31st March 2004 co ordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors(9);

“the Utilities Remedies Directive” means Council Directive 92/13/EC of 25th February 1992 co ordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors(10);

“utility” has the meaning given to it by regulation 3;

“work” means the outcome of any works which is sufficient of itself to fulfil an economic and technical function;

“working day” means a day other than a Saturday, Sunday or Bank Holiday within the meaning of the Banking and Financial Dealings Act 1971(11);

“works” means any of the activities specified in Schedule 2;

“works concession contract” means a works contract under which the consideration given by a utility consists of or includes the grant of a right to exploit the work or works to be carried out under the contract;

“works contract” means a contract, in writing, for consideration (whatever the nature of the consideration)–

(a)

for the carrying out of a work or works for a utility; or

(b)

under which a utility engages a person to procure by any means the carrying out for the utility of a work corresponding to specified requirements;

“written” or “in writing” means any expression consisting of words or figures that can be read, reproduced and subsequently communicated and may include information transmitted and stored by electronic means; and

“year” means a calendar year.

(2) Subject to paragraph (3), in these Regulations–

(a)“a Part A services contract” is a contract under which services specified in Part A of Schedule 3 are to be provided;

(b)“a Part B services contract” is a contract under which services specified in Part B of Schedule 3 are to be provided.

(3) Where services specified in both Parts A and B of Schedule 3 are to be provided under a single contract, then the contract shall be treated as–

(a)a Part A services contract if the value of the consideration attributable to the services specified in Part A is greater than that attributable to those specified in Part B; and

(b)a Part B services contract if the value of the consideration attributable to the services specified in Part B is equal to or greater than that attributable to those specified in Part A.

(4) Where a thing is required to be done under these Regulations–

(a)within a certain period after an action is taken, the day on which that action is taken shall not be counted in the calculation of that period;

(b)within a certain period, that period must include at least 2 working days; and

(c)except for regulation 33(3), within a certain period and the last day of that period is not a working day, the period shall be extended to include the next working day.

(1)

O.J. L 257, 1.10.05, p.1. The standard forms set out in the Annex to this Regulation are available at www.simap.eu.int.

(2)

O.J. L 340, 16.12.02, p.1. These Regulations were amended by Commission Regulation (EC) No. 2151/2003 of 16th December 2003 O.J. L 329, 17.12.03, p.1.

(4)

CPC (provisional version). Further information may be obtained from the United Nations website http://unstats.un.org.

(5)

1995 c. 50. Sections 2 and 3 were amended by sections 18 and 19 of, and Schedule 1 to the Disability Discrimination Act 2005 (c. 13). There are other amendments to this Act which are not relevant to these Regulations.

(6)

Cm 2575. As at 1st January 2000, parties to the Government Procurement Agreement other than Member States were Aruba, Canada, Hong Kong Special Administrative Region, Iceland, Israel, Japan, Republic of Korea, Liechtenstein, Norway, Singapore, Switzerland and the United States of America.

(7)

The address of the Office of Government Commerce is Trevelyan House, 26-30 Great Peter Street, London SW1P 2BY.

(8)

O.J. L 134, 30.4.04, p.114.

(9)

O.J. L 134, 30.4.04, p.1.

(10)

O.J. No L 76, 23.3.92, p.14.

(11)

1971 c. 80. There are amendments to this Act which are not relevant to these Regulations.

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