The Utilities Contracts (Scotland) Regulations 2012

Time limits

22.—(1) Subject to the minimum time limits specified in this regulation, a utility must take account of all the circumstances, in particular, the complexity of the contract and the time required for drawing up tenders when fixing time limits for receipt by it of requests to be selected to tender for, or to negotiate, the contract and for the receipt by it of tenders.

(2) Subject to paragraphs (3), (6) and (7), the date which a utility using the open procedure fixes as the last date for the receipt by it of tenders made in response to the contract notice must be specified in the notice and must be not less than 52 days from the date of dispatch of the notice.

(3) Where—

(a) the utility has published a periodic indicative notice in accordance with regulation 15;

(b) the periodic indicative notice contained as much of the information specified in the form of periodic indicative notice used to call for competition in Annex IV to Commission Regulation (EC) No 1564/2005(1) as was available at the time of publication; and

(c) the periodic indicative notice was sent to the Official Journal at least 52 days and not more than 12 months before the date on which the contract notice was dispatched,

a utility using the open procedure may substitute for the period of not less than 52 days specified in paragraph (2) a shorter period of generally not less than 36 days and in any event not less than 22 days.

(4) The date which a utility using the restricted procedure or the negotiated procedure with a call for competition fixes as the last date for the receipt by it of requests to be selected to tender for, or to negotiate, the contract, must be specified in the contract notice or, where the call for competition is made by means of a periodic indicative notice, in the invitation to economic operators made in accordance with regulation 16(3)(b), and must in general be at least 37 days from the date of the dispatch of the notice or invitation and must in any case be not less than 22 days from that date, apart from when the notice is transmitted by electronic means in accordance with paragraph (6) or facsimile in which case it must be not less than 15 days.

(5) The date which is the last date for the receipt of tenders made in response to an invitation to tender by a utility using the restricted procedure or the negotiated procedure with a call for competition may be agreed between the utility and the economic operators invited to tender and must be the same date for all economic operators or, in the absence of agreement as to the date, must be fixed by the utility and must be as a general rule at least 24 days and in any event not less than 10 days from the dispatch of the invitation to tender.

(6) Where a contract notice is transmitted by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex XX to the Utilities Directive a utility may reduce the time limits by 7 days for—

(a) the receipt by it of requests to be selected to tender for or to negotiate the contract; and

(b) the receipt by it of tenders when using the open procedure.

(7) Subject to paragraph (5), a utility using the open procedure, the restricted procedure or the negotiated procedure may reduce the time limits for the receipt by it of tenders by 5 days provided that—

(a) the utility offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.

(8) When using the reductions specified in paragraphs (3), (6) and (7), the date which a utility using the open procedure fixes as the last date for the receipt by it of tenders, must be not less than 15 days from the date of dispatch of the contract notice.

(9) Where the contract notice is not transmitted by facsimile or electronic means and when using the reductions specified in paragraphs (3), (6) and (7), the date which a utility using the open procedure fixes as the last date for the receipt by it of tenders, must be not less than 22 days from the date of dispatch of the contract notice.

(10) When using the reductions specified in paragraphs (3), (6) and (7) the date which a utility using the restricted procedure or the negotiated procedure with a call for competition fixes as the last date for the receipt by it of requests to be selected to tender for or to negotiate the contract, must be not less than 15 days from the date of dispatch of the notice or invitation.

(11) Subject to paragraph (5) and when using the reductions specified in paragraphs (3), (6) and (7), the date which a utility using the restricted procedure or the negotiated procedure with a call for competition fixes as the last date for the receipt by it of tenders, must be not less than 10 days from the date of dispatch of the invitation to tender.

(12) Subject to paragraph (5), a utility must extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—

(a) an economic operator requests the contract documents in sufficient time to allow a utility to respond in accordance with paragraphs (13) and (14) and, for whatever reason, the contract documents are not supplied in accordance with those paragraphs; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

(13) Where a utility using the open procedure does not offer unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (7), the utility must send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator, provided that the documents are requested in good time before the date specified in the contract notice as the final date for the receipt by it of tenders.

(14) A utility using the open procedure, the restricted procedure or the negotiated procedure must supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the utility to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

(15) A utility using the restricted procedure or the negotiated procedure with or without a call for competition must send invitations in writing simultaneously to each of the economic operators selected to tender for, or to negotiate, the contract and the invitation must—

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (7); or

(c) where the contract documents are held by an entity other than the utility, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

(16) Where the contract documents are held by an entity other than the utility, the utility must ensure that the contract documents are sent to economic operators by the most rapid means practicable.

(17) The utility must include the following information in the invitation—

(a) the final date for making requests for further information and the amount and method of payment of any fee which may be charged for supplying that information;

(b) the final date for receipt by it of tenders, the address to which they must be sent and the one or more languages in which they must be drawn up;

(c) a reference to any contract notice;

(d) an indication of the information to be included with the tender;

(e) the criteria for the award of the contract if this information was not specified in the contract notice, the notice on the existence of a qualification system used as a means of calling for competition published in accordance with regulation 16(2)(a)(ii) or the contract documents; and

(f) the relative weighting of the contract award criteria or, where appropriate, the descending order of importance of such criteria if this information was not specified in the contract notice, the notice on the existence of a qualification system or the contract documents.

(18) The utility must by notice in writing, as soon as reasonably practicable after sending the invitations referred to in paragraph (15), inform any candidates that have not been selected to be invited to tender or to negotiate that they have been unsuccessful.

(19) Where a utility using the negotiated procedure reduces the number of tenders to be negotiated, the utility must, by notice in writing as soon as reasonably practicable, inform the affected economic operators that they have been excluded from the competition.

(1)

The annex to Commission Regulation (EC) No 1564/2005 was amended by Commission Regulation (EC) 1150/2009, OJ L 313, 29.11.2009, p.3.