The Utilities Contracts (Amendment) Regulations 2001

Citation and commencement U.K.

1.  These Regulations may be cited as the Utilities Contracts (Amendment) Regulations 2001 and shall come into force on 26th July 2001.

Interpretation U.K.

2.  In these Regulations “the Utilities Regulations” shall mean the Utilities Contracts Regulations 1996 M1 .

Marginal Citations

M1 S.I. 1996/2911.

Amendment of the Utilities Regulations U.K.

3.—(1) Regulation 2 of the Utilities Regulations (interpretation) shall be amended—

(a) in regulation 2(1),

(i) by inserting the following definition before the definition of “to award”—

““attestation system” means a system under which utilities may have their contract award procedures and practices within the scope of Council Directive 93/38/EEC M2 examined periodically by an independent person or body with a view to obtaining an attestation that at that time those procedures and practices are in conformity with these Regulations and the Community law to which they give effect;”;

(ii) by omitting the definition of “ECU”;

(iii) by inserting the following definitions after the definition of “goods”—

““Government Procurement Agreement” means the Agreement on Government Procurement between certain parties to the World Trade Organisation (WTO) Agreement signed in Marrakesh on 15th April 1994 M3 ;

“GPA” means the Government Procurement Agreement;”;

and

(b) by omitting regulation 2(3).

(2) Regulation 10 of the Utilities Regulations (thresholds) shall be amended–

(a) by replacing paragraph (2) with—

“(2) The relevant threshold for the purposes of paragraph (1) above in relation to a contract to be awarded by a utility specified in Part T of Schedule 1 is—

(a) 600,000 euro for a supply or services contract; and

(b) 5,000,000 euro for a works contract.”;

(b) by inserting the following paragraphs after paragraph (2)—

“(2A) The relevant threshold for the purposes of paragraph (1) above in relation to a contract to be awarded by a utility specified in Parts A to F, O, P, R or S of Schedule 1 is—

(a) the euro equivalent of 400,000 special drawing rights for a supply contract;

(b) for a services contract—

(i) the euro equivalent of 400,000 special drawing rights for a Part A services contract other than—

(aa) a contract for research and development services specified in category 8 of Part A of Schedule 4;

(bb) a contract for telecommunications services specified under CPC M4 references 7524, 7525 and 7526 within category 5 of Part A of Schedule 4;

(ii) 400,000 euro for a Part A services contract described in sub-paragraph (aa) or (bb) above or for a Part B services contract; and

(c) the euro equivalent of 5,000,000 special drawing rights for a works contract.

(2B) The relevant threshold for the purposes of paragraph (1) above in relation to a contract to be awarded by a utility specified in Parts G to N or Q of Schedule 1 is—

(a) 400,000 euro for a supply or services contract; or

(b) 5,000,000 euro for a works contract.”;

and

(c) by adding the following paragraph—

“(20) The value in pounds sterling of any amount expressed in these Regulations in euro or in the euro equivalent of special drawing rights shall be calculated by reference to the rate for the time being applying for the purposes of Council Directive 93/38/EEC as published from time to time in the Official Journal M5 .”.

(3) Regulation 14(2)(b) of the Utilities Regulations (prior indicative notices) shall be replaced by—

“(b) works contracts whose estimated value at the date of despatch of the notice is not less than—

(i) 5,000,000 euro for a contract expected to be awarded by a utility specified in Part T of Schedule 1;

(ii) the euro equivalent of 5,000,000 special drawing rights for a contract expected to be awarded by a utility specified in Parts A to F, O, P, R or S of Schedule 1.”.

(4) Regulation 15 of the Utilities Regulations (call for competition) shall be amended—

(a) by inserting the words “, including the information described in paragraph (3A) below,” after the words “detailed information” in sub-paragraph (c) of paragraph (3); and

(b) by inserting the following paragraph after paragraph (3)–

“(3A) The information referred to in paragraph (3)(c) above shall include–

(a) the nature and quantity or extent of the goods, works or services to be supplied under the contract;

(b) any options for further supplies, works or services and, if known, an estimate of the timing when such options may be exercised;

(c) in the case of recurring contracts for goods, works or services, their nature and quantity or extent, and, if known, the estimated date of the subsequent calls for competition for the goods, works or services to be supplied;

(d) a statement of whether the contract is to be awarded using the restricted or the negotiated procedure;

(e) any date for beginning or completing the delivery of goods or for performing works or services;

(f) the address to which and the date by which an application to be invited to tender must be submitted and the language in which it must be submitted;

(g) the address of the utility and any information needed to obtain specifications and other documents relating to the proposed contract;

(h) any economic and technical requirements, financial guarantees and information required from providers;

(i) the amount to be paid for and terms of payment in respect of the documents relating to the proposed contract; and

(j) a statement of whether the utility is inviting offers for purchase, lease, rental or hire-purchase or involving more than one of these methods.”.

(5) Regulation 17 of the Utilities Regulations (time limits) shall be amended—

(a) by replacing paragraph (2) with—

“(2) Where—

(a) the utility has published a periodic indicative notice in accordance with regulation 14(1);

(b) the periodic indicative notice contained as much of the information specified in Parts II and III of Part A of Schedule 5 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 despatched,

the utility may substitute for the period of not less than 52 days specified in paragraph (1) above a shorter period of generally not less than 36 days and in any event not less than 22 days from the date of despatch of the contract notice, provided in each case that the period is sufficient to allow for effective tendering.”;

(b) by substituting “37 days” for “five weeks” in paragraph (3);

(c) by substituting “24 days” for “ 3 weeks ” in paragraph (4); and

(d) by adding the following paragraphs–

“(11) Tenders shall be submitted in writing either in person or by post, except that a utility may authorise another means of submission provided that the chosen means enables—

(a) each tender to contain all the information necessary for its evaluation;

(b) the confidentiality of tenders to be maintained pending their evaluation; and

(c) tenders to be opened only after the time limit for their submission has expired.

(12) Where a utility has authorised another means of submission in accordance with paragraph (11) above, it may require either that the submission of the tender is confirmed in writing or that a copy of the tender is delivered to it in person or by post, in either case as soon as possible after the submission of the tender by another means.”.

(6) The following paragraph shall be inserted after regulation 18(1) of the Utilities Regulations (qualification system for providers)–

“(1A) The utility shall permit providers to apply for qualification under the system at any time.”.

(7) Regulation 23(2) of the Utilities Regulations (contract award notice) shall be amended by substituting “paragraphs 6, 9 and 11” for “ paragraphs 6 and 9 ”.

(8) The following regulation shall be inserted after regulation 23 of the Utilities Regulations (contract award notice)–

“ Information about contract awards

23A.— (1) A utility specified in Parts A to F, O, P, R or S of Schedule 1 shall promptly inform any provider who submitted an offer or who applied successfully to be included amongst the persons to be selected to tender for or to negotiate a contract of its decision in relation to the award of the contract and shall do so in writing if requested.

(2) Subject to paragraph (3) below, a utility specified in Parts A to F, O, P, R or S of Schedule 1 shall promptly after the date on which it receives a request in writing from any provider who was unsuccessful at any stage in the contract award procedure inform that provider of the reasons why he was unsuccessful and, if the provider submitted an admissible tender, the utility shall inform him of the characteristics and relative advantages of the successful tender as well as the name of the person awarded the contract.

(3) A utility may withhold any information to be provided in accordance with paragraph (2) above where the disclosure of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any person or might prejudice fair competition between providers.”.

(9) Regulation 27 of the Utilities Regulations (statistical and other reports) shall be amended by inserting the following paragraphs after paragraph (2)—

“(2A) Subject to paragraph (2B) below, a utility specified in Parts A to F, O, P, R or S of Schedule 1 shall, not later than 31st July in each year, send to the Minister a report specifying in relation to each contract awarded by it in the previous year (including contracts excluded or exempted from the application of some or all of these Regulations by regulations 6 to 10)—

(a) the value (estimated if necessary) of the consideration payable under the contract;

(b) the principal category of work or service carried out or to be carried out under the contract according to the nomenclature used in Schedule 3 or 4 or the type of goods purchased or hired or to be purchased or hired under the contract; and

(c) the nationality of the person to whom the contract was awarded.

(2B) The report referred to in paragraph (2A) above need not include information concerning contracts for—

(a) research and development services specified in category 8 of Part A of Schedule 4;

(b) telecommunications services specified under CPC references 7524, 7525 and 7526 within category 5 of Part A of Schedule 4; or

(c) the services specified in Part B of Schedule 4.”.

(10) Regulation 31(1) (design contests) shall be replaced by—

“(1) This regulation shall apply to a design contest if it is organised as part of a procedure leading to the award of a services contract other than a contract excluded from the operation of these Regulations by regulation 6,7 or 8 whose estimated value (net of value added tax) is not less than the relevant threshold described in paragraph (1B) below.

(1A) This regulation shall apply to a design contest whether or not it is organised as part of a procedure leading to the award of a services contract if—

(a) the contest is conducted for the purpose of carrying out an activity specified in any Part of Schedule 1 in which the utility is specified; and

(b) the aggregate value of the prizes or payments for the contest is not less than the relevant threshold described in paragraph (1C) below.

(1B) The relevant threshold for the purpose of paragraph (1) above is—

(a) 600,000 euro in relation to a services contract to be awarded by a utility specified in Part T of Schedule 1;

(b) in relation to a services contract to be awarded by a utility specified in Parts A to F, O, P, R or S of Schedule 1—

(i) the euro equivalent of 400,000 special drawing rights for a Part A services contract other than—

(aa) a contract for research and development services specified in category 8 of Part A of Schedule 4;

(bb) a contract for telecommunications services specified under CPC references 7524, 7525 and 7526 within category 5 of Part A of Schedule 4;

(ii) 400,000 euro for a Part A services contract described in sub-paragraph (aa) or (bb) above or for a Part B services contract; and

(c) 400,000 euro in relation to a services contract to be awarded by a utility specified in Parts G to N or Q of Schedule 1.

(1C) The relevant threshold for the purpose of paragraph (1A) above is—

(a) 600,000 euro in relation to a contest to be conducted by a utility specified in Part T of Schedule 1;

(b) in relation to a contest to be conducted by a utility specified in Parts A to F, O, P, R or S of Schedule 1—

(i) the euro equivalent of 400,000 special drawing rights for a supply contract;

(ii) the euro equivalent of 400,000 special drawing rights for a Part A services contract other than—

(aa) a contract for research and development services specified in category 8 of Part A of Schedule 4;

(bb) a contract for telecommunications services specified under CPC references 7524, 7525 and 7526 within category 5 of Part A of Schedule 4; or

(iii) 400,000 euro for a Part A services contract described in sub-paragraph (aa) or (bb) above or for a Part B services contract; and

(c) 400,000 euro in relation to a contest to be conducted by a utility specified in Parts G to N or Q of Schedule 1.”.

(11) The following regulation shall be inserted after regulation 31 of the Utilities Regulations (design contests)—

“ Attestation

31A.— (1) A utility which has recourse to an attestation system and obtains an attestation in accordance with Articles 4 and 5 of Directive 92/13/EEC M6 from an independent person or body accredited in a relevant State for the purpose of attestation in accordance with Article 6 of that Directive may include the following statement in a notice sent to the Official Journal for publication pursuant to regulations 14(1), 15(2)(b), 18(12) and 23(1)—

The contracting entity has obtained an attestation in accordance with Council Directive 92/13/EEC that, on . . ., its contract award procedures and practices were in conformity with Community law and the national rules implementing that law.

(2) An attestation system established in a relevant State in accordance with the European Attestation Standard M7 shall be presumed to be in accordance with Articles 4 to 6 of Directive 92/13/EEC.”.

(12) Regulation 32 of the Utilities Regulations (enforcement of obligations) shall be amended—

(a) by inserting the following paragraphs after paragraph (1)–

“(1A) The duty owed to a provider pursuant to paragraph (1) above, except in relation to—

(a) a Part B services contract;

(b) a contract for research and development services specified in category 8 of Part A of Schedule 4; and

(c) a contract for telecommunications services specified under CPC references 7524, 7525 and 7526 within category 5 of Part A of Schedule 1,

shall be a duty owed also to a GPA provider.

(1B) References to a “provider” in paragraphs (2), (4), (7) and (8) below shall be construed as including a reference to a GPA provider.”;

(b) by inserting the following words after the words “pursuant to paragraph (1)” in paragraphs (2), (4)(a), (5), (6) and (7)-

“ or paragraph (1A) ”; and

(c) by adding the following paragraph—

“(10) In this regulation—

(a) a “GPA provider” shall mean a person from a GPA State who has sought, or who seeks, or would have wished, to be the person to whom the contract is awarded;

(b) a “GPA State” shall mean any country other than a relevant State which at the relevant time is a signatory to the GPA and has agreed with the European Community that the GPA shall apply to a contract of the type to be awarded M8 ; and

(c) “relevant time” shall mean—

(i) if the utility selects providers to tender for or to negotiate the contract in accordance with a qualification system established in accordance with regulation 18, the date on which the selection commences; or

(ii) if the utility satisfies the requirement that there be a call for competition by indicating the intention to award the contract in a periodic indicative notice in accordance with regulation 15(2)(a)(i), the date on which the notice is sent to the Official Journal; or

(iii) in any other case, the date on which a contract notice would be sent to the Official Journal if the requirement that there be a call for competition applied and the utility decided to satisfy that requirement by sending such a notice.”.

(13) Schedule 1 to these Regulations (which substitutes a new Schedule 1 to the Utilities Regulations) shall have effect.

(14) Schedule 2 to these Regulations (which substitutes a new Schedule 2 to the Utilities Regulations) shall have effect.

(15) Schedule 3 to these Regulations (which substitutes a new Schedule 5 to the Utilities Regulations) shall have effect.

Marginal Citations

M2 OJ No. L199, 9.8.1993, p. 84.

M3 Cm 2575. As at 1st January 2001, parties to the Government Procurement Agreement other than relevant States were Aruba, Canada, Hong Kong Special Administrative Region, Israel, Japan, Republic of Korea, Singapore, Switzerland and the United States of America.

M4 CPC stands for the Central Product Classification of the United Nations, published in the United Kingdom by The Stationery Office, ISBN 9211613981.

M5 The rates are determined every two years in principle and published in the Official Journal. The calculation is based upon the average of the daily exchange rates between special drawing rights and the euro and between the euro and sterling over a period of 24 months preceding the determination.

M6 OJ No. L387, 29.10.1990, p. 1.

M7 The European Attestation Standard EN 45503:1996D for the assessment of contract award procedures and practices of entities operating in the water, energy, transport and telecommunications sectors was prepared under the mandate of the Commission of the European Communities and of the European Free Trade Association. It has been adopted as British Standard BS: EN 4550.

M8 Information on the detailed application of the GPA under bilateral agreements between the EU and other signatories is maintained in the annexes and general notes in Appendix I to the GPA. Access to this information is available through the WTO website at www.wto.org.

John Heppell

Anne McGuire

Two of the Lords Commissioners of Her Majesty’s Treasury

4th July 2001