The Utilities Contracts Regulations 2016

SUB-SECTION 1 E+W+N.I. Exclusions applicable to all utilities and special exclusions for the water and energy sectors

Contracts awarded for the purpose of resale or lease to third parties E+W+N.I.

18.—(1) Subject to paragraph (3), these Regulations do not apply to contracts awarded for purposes of resale or lease to third parties, provided that the utility enjoys no special or exclusive right to sell or lease the subject-matter of such contracts, and other entities are free to sell or lease it under the same conditions as the utility.

F1 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Textual Amendments

F1 Reg. 18(2) omitted (31.12.2020) by virtue of The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(9) (with Sch. paras. 3-5)

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 [F2 outside the United Kingdom] E+W+N.I.

19.—(1) These Regulations do not apply to contracts awarded or design contests organised by utilities—

(a) for purposes other than the pursuit of their activities as described in regulations 9 to 15; or

(b) for the pursuit of such activities [F3 outside the United Kingdom], in conditions not involving the physical use of a network or geographical area within the [F4 United Kingdom].

F5 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2 Words in reg. 19 heading substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(10)(a) (with Sch. paras. 3-5)

F3 Words in reg. 19(1)(b) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(10)(b)(i) (with Sch. paras. 3-5)

F4 Words in reg. 19(1)(b) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(10)(b)(ii) (with Sch. paras. 3-5)

F5 Reg. 19(2) omitted (31.12.2020) by virtue of The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(10)(c) (with Sch. paras. 3-5)

Contracts awarded and design contests organised pursuant to international rules E+W+N.I.

20.—(1) These Regulations do not apply to contracts or design contests which the utility is obliged to award or organise in accordance with procurement procedures which are different from those laid down in these Regulations and are established by any of the following—

(a) a legal instrument creating international law obligations, such as an international agreement, concluded in accordance with the [F6 Retained] Treaties, between [F7 the United Kingdom and one or more other] countries (or subdivisions of such countries) and covering works, supplies or services intended for the joint implementation or exploitation of a project by its signatories;

(b) an international organisation.

(2) These Regulations do not apply to contracts, or design contests, which the utility awards 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.

(3) In the case of contracts or design contests co-financed for the most part by an international organisation or international financing institution, the parties shall agree on applicable procurement procedures.

(4) In the case of contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules, regulation 27 applies instead of paragraphs (1) to (3) of this regulation.

Textual Amendments

F6 Word in reg. 20(1)(a) inserted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(11)(a) (with Sch. paras. 3-5)

F7 Words in reg. 20(1)(a) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(11)(b) (with Sch. paras. 3-5)

Specific exclusions for service contracts E+W+N.I.

21.—(1) These Regulations do not apply to service contracts—

(a) for the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or which concern interests in or rights over any of them;

(b) for arbitration or conciliation services;

(c) for any of the following legal services—

(i) legal representation of a client by a lawyer F8 ..., in:—

(aa) an arbitration or conciliation held in [F9 the United Kingdom, another] country or before an international arbitration or conciliation instance, or

(bb) judicial proceedings before the courts, tribunals or public authorities of [F10 the United Kingdom or another] country or before international courts, tribunals or institutions;

(ii) legal advice given—

(aa) in preparation of any of the 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,

provided that the advice is given by a lawyer F11 ...;

(iii) document certification and authentication services which must be provided by notaries;

(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 [F12 United Kingdom] 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 [F13 United Kingdom] are connected, even occasionally, with the exercise of official authority;

(d) for—

(i) 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 M1 as amended from time to time, or

(ii) operations conducted with the European Financial Stability Facility and the European Stability Mechanism;

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

(f) which are employment contracts;

(g) for public passenger transport services by rail or metro;

(h) for civil defence, civil protection, and danger prevention that are provided by non-profit organisations or associations, and which are covered by 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

(i) for broadcasting time or programme provision that are awarded to audiovisual or radio media service providers.

(2) In this regulation—

[F14 (za) “lawyer” means a person practising as an advocate, barrister or solicitor in any part of the United Kingdom or in Gibraltar;]

(a) “media service providers” has the meaning given by Article 1(1)(d) of Directive 2010/13/EU of the European Parliament and of the Council M2 as amended from time to time;

(b) “programme” has the meaning given by Article 1(1)(b) of that Directive as amended from time to time, but also includes radio programmes and radio programme materials; and

(c) “programme material” has the same meaning as “programme”.

Textual Amendments

F8 Words in reg. 21(1)(c)(i) omitted (31.12.2020) by virtue of The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(12)(a)(i)(aa) (with Sch. paras. 3-5)

F9 Words in reg. 21(1)(c)(i)(aa) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(12)(a)(i)(bb) (with Sch. paras. 3-5)

F10 Words in reg. 21(1)(c)(i)(bb) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(12)(a)(i)(cc) (with Sch. paras. 3-5)

F11 Words in reg. 21(1)(c)(ii) omitted (31.12.2020) by virtue of The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(12)(a)(ii) (with Sch. paras. 3-5)

F12 Words in reg. 21(1)(c)(iv) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(12)(a)(iii) (with Sch. paras. 3-5)

F13 Words in reg. 21(1)(c)(v) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(12)(a)(iii) (with Sch. paras. 3-5)

F14 Reg. 21(2)(za) inserted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(12)(b) (with Sch. paras. 3-5)

Marginal Citations

M1 OJ No L 145, 30.04.2004, p1, last amended by Directive 2010/78/EU of the European Parliament and of the Council (OJ No L 331, 15.12.2010, p120).

M2 OJ No L 95, 15.4.2010, p1.

Service contracts awarded on the basis of an exclusive right E+W+N.I.

22.  These Regulations do not apply to service contracts awarded to a contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a law, regulation or published administrative provision which is compatible with [F15 anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 because of the effect which TFEU had immediately before IP completion day in giving rise to any of the powers, rights etc. mentioned in that section].

Textual Amendments

F15 Words in reg. 22 substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(13) (with Sch. paras. 3-5)

Contracts awarded by certain utilities for the purchase of water and for the supply of energy or of fuels for the production of energy E+W+N.I.

23.  These Regulations do not apply to contracts—

(a) for the purchase of water if awarded by utilities engaged in one or both of the activities relating to drinking water referred to in regulation 11(1);

(b) awarded by utilities which are active in the energy sector by engaging in an activity referred to in regulation 9(1), regulation 10(1) or regulation 15 for the supply of—

(i) energy; or

(ii) fuels for the production of energy.