The Utilities Contracts Regulations 2016

Duty owed to economic operators from certain other States

105.—(1) The duty owed in accordance with regulation 104 is a duty also owed to—

(a) an economic operator from a GPA State, but only where the GPA applies to the procurement concerned; and

(b) an economic operator which is not from an EEA State or a GPA State, but only if a relevant bilateral agreement applies.

(2) For the purposes of paragraph (1)(a), the GPA applies to a procurement if—

(a) the procurement may result in the award of a contract of any description; and

(b) at the relevant time—

(i) a GPA State has agreed with the EU that the GPA shall apply to a contract of that description; and

(ii) the economic operator is from that GPA State.

(3) For the purpose of paragraph (1)(b), a relevant bilateral agreement applies if—

(a) there is an international agreement, other than the GPA, by which the EU is bound; and

(b) in accordance with that agreement, the economic operator is, in respect of the procurement concerned, to be accorded remedies no less favourable than those accorded to economic operators from the EU in respect of matters falling within the scope of the duty owed in accordance with regulation 104.

(4) In this regulation—

“GPA State” means any country, other than an EEA State, which at the relevant time is a signatory to the GPA; and

“relevant time” means—

(a)

if the utility selects economic operators to tender for or to negotiate the contract in accordance with a qualification system established in accordance with regulation 77, the date on which the selection commences;

(b)

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 regulations 67 or 91(1)(b), the date on which the notice is sent to the EU Publications Office; or

(c)

in any other case, the date on which the utility sent a contract notice (or design contest notice) to the EU Publications Office or would have done so if the requirement that there be a call for competition applied and the utility decided to satisfy that requirement by sending such a notice.