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The Utilities Contracts (Scotland) Regulations 2016

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SUB-SECTION 1Exclusions applicable to all utilities and special exclusions for the water and energy sectors
Exclusion: Contracts awarded for the purpose of resale or lease to third parties

17.—(1) Subject to paragraph (3), these Regulations do not apply to procurement for the award of a contract for the purpose of resale or lease to third parties, provided that the utility enjoys no special or exclusive right to sell or lease the subject of such contracts and other entities are free to sell or lease the subject of such contracts under the same conditions as the utility.

(2) A utility must notify the Commission, if so requested, of all the categories of products or activities which the utility regards as excluded under paragraph (1).

(3) Paragraph (1) does not apply to procurement carried out by a central purchasing body in order to perform a centralised purchasing activity.

Exclusion: Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity in a third country

18.—(1) These Regulations do not apply to procurement for the award of a contract or the organisation of a design contest by a utility—

(a)for purposes other than the pursuit of its activities as described in regulations 8 to 14; or

(b)for the pursuit of such activities in a third country, in conditions not involving the physical use of a network or geographical area within the EU.

(2) A utility must notify the Commission, if so requested, of any activities which the utility regards as excluded under paragraph (1).

Exclusion: Contracts awarded and design contests organised pursuant to international rules

19.—(1) These Regulations do not apply to procurement for the award of a contract or the organisation of a design contest which the utility is obliged to award or organise in accordance with a procurement which is established by—

(a)an international agreement or any other legal instrument creating international law obligations, concluded in conformity with the Treaties, between the United Kingdom and one or more third country or any part thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by its signatories; or

(b)an international organisation.

(2) These Regulations do not apply to procurement for the award of a contract or the organisation of a design contest which the utility undertakes or organises in accordance with procurement rules provided by an international organisation or international financing institution where the contracts or design contests concerned are fully financed by that organisation or institution or are co-financed for the most part by that organisation or institution.

(3) This regulation does not apply to procurement for the award of a contract or the organisation of a design contest involving defence or security aspects which are awarded or organised pursuant to international rules.

Exclusion: Specific exclusions for service contracts

20.—(1) These Regulations do not apply to procurement for the award of a service contract, framework agreement or dynamic purchasing system—

(a)for the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or of any estate, right, servitude or other interest in or over such land, buildings or property;

(b)to an audio-visual or radio media service provider, for broadcasting time or programme provision;

(c)for arbitration or conciliation services;

(d)for any of the following legal services—

(i)legal representation of a client by a lawyer within the meaning of Article 1 of the Lawyers’ Services Directive(1) in—

(aa)arbitration or conciliation proceedings held in a member State, a third country or before an international arbitration or conciliation instance; or

(bb)judicial proceedings before the courts, tribunals or public authorities of a member State or a third country or before international courts, tribunals or institutions;

(ii)legal advice given by a lawyer within the meaning of Article 1 of the Lawyers’ Services Directive—

(aa)in preparation of any proceedings referred to in paragraph (i); or

(bb)where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings;

(iii)document certification or authentication services which must be provided by a notary public;

(iv)legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;

(v)other legal services which, in the member State concerned, are connected, even occasionally, with the exercise of official authority;

(e)for financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (2) as amended from time to time;

(f)for operations conducted with the European Financial Stability Facility or the European Stability Mechanism;

(g)for loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;

(h)which is an employment contract;

(i)for civil defence, civil protection or danger prevention services that are provided by non‑profit organisations or associations and which are specified under CPV Codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services; or

(j)for public passenger transport services by rail or metro.

(2) In this regulation—

(a)“Audio-visual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in member States concerning the provision of audio-visual media services(3) as amended from time to time;

(b)“Lawyers’ Services Directive” means Council Directive 77/249/EEC to facilitate the effective exercise by lawyers of freedom to provide services(4);

(c)“media service provider” has the meaning given by Article 1(1)(d) of the Audio-visual Media Services Directive; and

(d)“programme” has the meaning given by Article 1(1)(b) of the Audio-visual Media Services Directive but also includes radio programmes and radio programme materials, and “programme material” is to be construed accordingly.

Exclusion: Service contracts awarded on the basis of an exclusive right

21.  These Regulations do not apply to procurement for a service contract to be awarded to a contracting authority or to an association of contracting authorities on the basis of an exclusive right which such authority or association of authorities enjoy pursuant to a law, regulation or published administrative provision which is compatible with the TFEU.

Exclusion: Contracts awarded by certain utilities for the purchase of water and for the supply of energy or of fuels for the production of energy

22.  These Regulations do not apply to procurement for the award of a contract—

(a)for the purchase of water by a utility engaged in one or both of the activities relating to drinking water referred to in regulation 10(1) (water);

(b)by a utility which is active in the energy sector by engaging in an activity referred to in regulation 8(1) (gas and heat), 9(1) (electricity) or 14 (extraction of oil and gas and exploration for, or extraction of, coal or other solid fuel) for the supply of—

(i)energy; or

(ii)fuels for the production of energy.

(1)

OJ L 78, 26.3.1977, p.17, last amended by Council Directive 2013/25/EU (OJ L 158, 10.6.2013, p.368).

(2)

OJ L 145, 30.4.2004, p.1.

(3)

OJ L 95, 15.4.2010, p.1.

(4)

OJ L 78, 26.3.1977, p.17, last amended by Council Directive 2013/25/EU (OJ L 158, 10.6.2013, p.368).

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