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The Utilities Contracts (Scotland) Regulations 2006

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Information about contract award procedures

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33.—(1) Subject to paragraph (13) a utility shall as soon as possible after the decision has been made, inform any economic operator which submitted an offer or which applied to be included amongst the economic operators to be selected to tender for or to negotiate the contract, or applied to be a party to a framework agreement, of its decision in relation to–

(a)the award of the contract; or

(b)the conclusion of the framework agreement;

and shall do so by notice in writing by the most rapid means of communication practicable.

(2) The notice referred to in paragraph (1) shall include–

(a)the criteria for the award of the contract;

(b)where practicable, the score obtained by–

(i)the economic operator which is to receive the notice; and

(ii)the economic operator–

(aa)to be awarded the contract; or

(bb)to become a party to the framework agreement; and

(c)the name of the economic operator–

(i)to be awarded the contract; or

(ii)to become a party to the framework agreement.

(3) A utility shall allow a period of at least 10 calendar days to elapse between the date of despatch of the notice under paragraph (1) and the date on which that utility proposes to enter into the contract or to conclude the framework agreement.

(4) Subject to paragraph (13) if by midnight at the end of the second working day of the period referred to in paragraph (3) a utility receives a request in writing, from an economic operator which was sent a notice under paragraph (1), for the reasons why that economic operator was unsuccessful, the utility shall inform that economic operator of the characteristics and relative advantages of the successful tender.

(5) A utility shall give the information set out in paragraph (4) at least 3 working days before the end of the period referred to in paragraph (3), or where that is not possible the period referred to in paragraph (3) shall be extended to allow at least 3 working days between the provision of the information set out in paragraph (4) and the date the utility proposes to enter into the contract or concludes the framework agreement.

(6) Where a utility is seeking offers without a call for competition in accordance with regulation 17(1)(d) and there is only one tender for the contract, that utility need not comply with paragraphs (1) to (5).

(7) Where a utility awards a contract under a framework agreement, that utility need not comply with paragraphs (1) to (5).

(8) Where a utility is seeking to establish a dynamic purchasing system in accordance with regulation 19 that utility need not comply with paragraphs (1) to (5) but, subject to paragraph (13), shall as soon as possible after a decision has been made, inform any economic operator which applied to be admitted to the dynamic purchasing system of its decision in relation to admittance to that system and shall do so in writing if requested by the economic operator.

(9) Except for a request made in accordance with paragraph (4) which shall be dealt with in accordance with paragraphs (4) to (5) and subject to paragraph (13), a utility shall within 15 days of the date on which it receives a request in writing from any economic operator which was unsuccessful–

(a)inform that economic operator of the reasons why it was unsuccessful; and

(b)if the economic operator submitted an admissible tender, the utility shall inform that economic operator of the characteristics and relative advantages of the successful tender and–

(i)the name of the economic operator to be awarded the contract;

(ii)the names of the parties to the framework agreement; or

(iii)the names of the economic operators admitted to the dynamic purchasing system.

(10) The reasons referred to in paragraph (9)(a) shall include any reason for the utility’s decision that the economic operator did not meet the technical specifications

(a)as specified in regulation 12(6) by an equivalent means; or

(b)in terms of the performance or functional requirements in regulation 12(7) by an equivalent means.

(11) Subject to paragraph (13) a utility shall as soon as possible after the decision has been made, inform any economic operator which submitted an offer, which applied to be included amongst the economic operators to be selected to tender for, to negotiate the contract or to be admitted to a dynamic purchasing system, of its decision to abandon or to recommence a contract award procedure in respect of which a contract notice has been published, in relation to–

(a)the award of a contract;

(b)the conclusion of a framework agreement; or

(c)admittance to a dynamic purchasing system.

(12) A utility which informs an economic operator of its decision in accordance with paragraph (11) shall–

(a)include the reasons for the decision; and

(b)provide the decision and reasons in writing if requested by the economic operator.

(13) A utility may withhold any information to be provided in accordance with paragraph (1), (2), (4), (8), (9), (11) or (12) where the disclosure of such information

(a)would impede law enforcement;

(b)would otherwise be contrary to the public interest;

(c)would prejudice the legitimate commercial interests of any economic operator; or

(d)might prejudice fair competition between economic operators.

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