The Utilities Contracts (Scotland) Regulations 2016

Tenders comprising products originating in third countries S

83.—(1) This regulation applies to tenders covering products originating in third countries with which the EU has not [F1 , before IP completion day,] concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for EU undertakings to the markets of those third countries.

(2) For the purposes of this regulation—

(a) the origin of products must be determined [F2 as it would be determined for the purposes of Part 1 of the Taxation (Cross-Border Trade) Act 2018F3 if the products were chargeable goods within the meaning of that Part];

(b) software used in telecommunications network equipment must be regarded as products; and

(c) those third countries to which the benefits of the Utilities Contracts Directive has [F4 , before IP completion day,] been extended by an EU Council Decision, must not be taken into account by a utility for determining the proportion, referred to in paragraph (3), of products originating in third countries.

(3) A utility may reject any tender submitted for the award of a supply contract where the proportion of the products originating in third countries is greater than 50% of the total estimated value of the products constituting the tender.

(4) Subject to paragraph (5), where two or more tenders are equivalent in the light of the contract award criteria defined in accordance with regulation 80 (contract award criteria) the utility must give preference to those tenders which may not be rejected in accordance with paragraph (3).

(5) Paragraph (4) does not apply where acceptance of such tender would oblige the utility to acquire equipment having technical characteristics different from those of existing equipment, resulting in—

(a) incompatibility;

(b) technical difficulties in operation and maintenance; or

(c) disproportionate costs.

(6) For the purposes of paragraph (4), tenders must be considered equivalent if the price difference between those tenders does not exceed 3%.

Textual Amendments

F1 Words in reg. 83(1) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 6(47)(a) (with sch. paras. 1-5)

F2 Words in reg. 83(2) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 6(47)(b)(i) (with sch. paras. 1-5)

F3 2018 c.22. See section 17 (place of origin of chargeable goods).

F4 Words in reg. 83(2)(c) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 6(47)(b)(ii) (with sch. paras. 1-5)

Commencement Information

I1 Reg. 83 in force at 18.4.2016, see reg. 1(2)