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The Utilities Contracts (Scotland) Regulations 2016

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Use of the negotiated procedure without prior call for competition

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48.—(1) A utility may award a contract following a negotiated procedure without prior publication of a call for competition in any of the following cases—

(a)where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to a procedure with a call for competition, provided that the initial conditions of the contract are not substantially altered;

(b)where the contract is—

(i)purely for the purpose of research, experiment, study or development; and

(ii)not for the purpose of securing a profit or of recovering research and development costs,

insofar as the award of such contract does not prejudice the competitive award of subsequent contracts which do seek the ends referred to in paragraph (ii); or

(c)where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons—

(i)the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;

(ii)competition is absent for technical reasons;

(iii)the protection of exclusive rights, including intellectual property rights,

but only, in the case of paragraphs (ii) and (iii), where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;

(d)where (but only if it is strictly necessary) for reasons of extreme urgency brought about by events unforeseeable by the utility, the time limits for open procedure, restricted procedure or negotiated procedure with prior call for competition cannot be complied with.

(2) For the purposes of paragraph (1)(a)—

(a)a tender shall be considered not to be suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the utility’s needs and requirements as specified in the procurement documents; and

(b)a request to participate shall be considered not to be suitable where the economic operator concerned—

(i)has been or would be excluded under regulation 76(1) (criteria for qualitative selection) or 78 (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations); or

(ii)does not meet the selection criteria.

(3) For the purposes of paragraph (1)(d), the circumstances invoked to justify extreme urgency must not, in any event, be attributable to the utility.

Specific rules based on type of contract

(4) A utility may award a contract following a negotiated procedure without prior publication of a call for competition—

(a)in the case of supply contracts, where the products involved are for additional deliveries by the original supplier which are intended either as—

(i)a partial replacement of supplies or installations; or

(ii)the extension of existing supplies or installations,

where a change of supplier would require the utility to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance;

(b)for supplies quoted and purchased on a commodity market;

(c)for purchases of supplies or services on particularly advantageous conditions, from either a supplier which is definitively winding up its business activities or the liquidator in an insolvency procedure, an arrangement with creditors or a similar procedure under national laws or regulations;

(d)for bargain purchases, where it is possible to procure supplies by taking advantage of a particularly advantageous opportunity available for a very short time at a price considerably lower than normal market prices;

(e)for new works, services or both, consisting of the repetition of similar works or services entrusted to the contractor to which the utility awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded pursuant to a procedure in accordance with regulation 42(1) (choice of procedures);

(f)for a service contract which follows a design contest organised in accordance with these Regulations and which is to be awarded, under the rules provided for in the design contest, to the winner or to one of the winners of the design contest.

(5) For the purposes of paragraph (4)(e)—

(a)the basic project must have indicated the extent of possible additional works or services and the conditions under which they would be awarded;

(b)the possible use of this procedure must have been disclosed in the procurement documents; and

(c)the total estimated cost of these subsequent works or services must have been taken into consideration by the utility when applying regulations 15 (thresholds) and 16 (methods for calculating the estimated value) in relation to the original contract.

(6) For the purposes of paragraph (4)(f), where there is more than one winner of the design contest all of the winners must be invited to participate in the negotiation.

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