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The Utilities Contracts Regulations 2016

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Changes to legislation:

The Utilities Contracts Regulations 2016, Cross Heading: SECTION 2 is up to date with all changes known to be in force on or before 16 May 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Changes and effects yet to be applied to Part 2 Chapter 3 Crossheading Publication-and-transparency:

  • reg. 71 heading substituted by S.I. 2019/560 reg. 9(42)(a) (This amendment not applied to legislation.gov.uk. Affecting Regulations revoked (20.11.2020) by S.I. 2020/1319, regs. 1(3), 2(a))
  • reg. 72 heading words substituted by S.I. 2019/560 reg. 9(43)(a) (This amendment not applied to legislation.gov.uk. Affecting Regulations revoked (20.11.2020) by S.I. 2020/1319, regs. 1(3), 2(a))
  • Regulations revoked by 2023 c. 54 Sch. 11 para. 7

Changes and effects yet to be applied to the whole Instrument associated Parts and Chapters:

Whole provisions yet to be inserted into this Instrument (including any effects on those provisions):

  • reg. 21(1)(c)(i)(aa) words substituted by S.I. 2019/560 reg. 9(12)(a)(i) (This amendment not applied to legislation.gov.uk. Affecting Regulations revoked (20.11.2020) by S.I. 2020/1319, regs. 1(3), 2(a))
  • reg. 21(1)(c)(i)(bb) words substituted by S.I. 2019/560 reg. 9(12)(a)(ii) (This amendment not applied to legislation.gov.uk. Affecting Regulations revoked (20.11.2020) by S.I. 2020/1319, regs. 1(3), 2(a))

SECTION 2E+W+N.I.Publication and transparency

Periodic indicative noticesE+W+N.I.

67.—(1) Utilities may make known their intentions of planned procurements through the publication of a periodic indicative notice.

(2) Such notices shall contain the information set out in part A, section I of Annex VI to the Utilities Contracts Directive [F1, but as if both references to “dispatch of the notice” in paragraph 4 were references to the submission of the notice to the UK e-notification service for the purposes of these Regulations].

(3) A utility wishing to publish a periodic indicative notice shall—

(a)[F2submit] it for publication in accordance with regulation 71; or

(b)publish it on the utility's buyer profile in accordance with regulation 72.

(4) Where the periodic indicative notice is published by the utility on its buyer profile the utility shall [F3submit] for publication, in accordance with regulation 71, a notice containing the information set out in Part B of Annex VI to the Utilities Contracts Directive [F4, but as if “date of dispatch” in paragraph 5 were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations].

F5(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) The period covered by the periodic indicative notice shall be a maximum of 12 months from the date on which the notice is transmitted for publication.

F7(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Notices on the existence of a qualification systemE+W+N.I.

68.—(1) Where utilities choose to set up a qualification system in accordance with regulation 77, the system shall be the subject of a notice F8... indicating the purpose of the qualification system and how to have access to the rules concerning its operation.

[F9(1A) Such a notice shall include the information set out in Annex 10 to the Utilities Contracts Directive, but as if, in paragraph 10, “Article 82” were a reference to regulation 82 of these Regulations.]

(2) Utilities shall indicate the period of validity of the qualification system in the notice on the existence of the system.

(3) Utilities shall [F10give notice] of any change in the period of validity [F11by submitting to the UK e-notification service]—

(a)where the period of validity is changed without terminating the system, [F12a notice] on the existence of qualification systems;

(b)where the system is terminated, a contract award notice referred to in regulation 70.

Textual Amendments

[F13Contract noticesE+W+N.I.

69.—(1) Contract notices shall contain the information set out in the relevant part of Annex 11 to the Utilities Contracts Directive, but as if—

(a)in paragraph 10 of Part A, “the third and fourth subparagraph of Article 73(1)” were a reference to regulation 73(4) and (5) of these Regulations;

(b)in—

(i)paragraph 19 of Part A,

(ii)paragraph 16 of Part B, and

(iii)paragraph 15 of Part C,

“Article 82” were a reference to regulation 82 of these Regulations;

(c)in—

(i)paragraph 20 of Part A,

(ii)paragraph 18 of Part B, and

(iii)paragraph 18 of Part C,

“in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Utilities Contracts Regulations 2016)”; and

(d)in—

(i)paragraph 22 of Part A,

(ii)paragraph 20 of Part B, and

(iii)paragraph 20 of Part C,

“date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

(2) Such notices shall be submitted for publication in accordance with regulation 71.]

Textual Amendments

Contract award noticesE+W+N.I.

70.—(1) Not later than 30 days after the award of a contract or the conclusion of a framework agreement, following the decision to award or conclude it, utilities shall [F14submit] for publication a contract award notice on the results of the procurement procedure.

[F15(2) Such notices shall—

(a)contain the information set out in Annex 12 to the Utilities Contracts Directive, but as if—

(i)in paragraph 5(b), “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Utilities Contracts Regulations 2016)”;

(ii)in paragraph 5(c), “Article 50” were a reference to regulation 50(1) of these Regulations;

(iii)in paragraph 9, “Article 50(h)” were a reference to regulation 50(1)(h) of these Regulations;

[F16(iiia)in paragraph 12, for the words from “or the prices” to the end there were substituted “for the contract awarded”;]

(iv)in paragraph 17, the words in brackets were omitted;

(v)in paragraph 19, “Article 64(1)” were a reference to regulation 64(1) of these Regulations;

(vi)in paragraph 20, “Article 84” were a reference to regulation 84 of these Regulations; and

(vii)in paragraph 21, “date of transmission” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations; and

(b)be submitted for publication in accordance with regulation 71.]

F17(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In the case of framework agreements, utilities shall not be bound to [F18submit] a notice of the results of the procurement procedure for each contract based on such an agreement.

(5) In the case of dynamic purchasing systems, utilities shall either—

(a)[F19submit] a contract award notice within 30 days after the award of each contract based on a dynamic purchasing system; or

(b)group such notices on a quarterly basis, in which case they shall [F20submit] the grouped notices within 30 days of the end of each quarter.

(6) Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where its release—

(a)would impede law enforcement or would otherwise be contrary to the public interest;

(b)would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or

(c)might prejudice fair competition between economic operators.

(7) In the case of contracts for research and development services, the information concerning the nature and quantity of the services may be limited to:—

(a)the indication “R & D services” where the contract has been awarded by a negotiated procedure without a call for competition in accordance regulation 50(1)(b);

(b)information as least as detailed as was indicated in the notice that was used as a means of calling for competition.

Textual Amendments

[F21Publication on the UK e-notification service]E+W+N.I.

71.—(1) The notices required by regulations [F2252,] 67 to 70, 88, 91 and 95 to be [F23submitted] for publication in accordance with this regulation shall be [F23submitted] [F24to the UK e-notification service] for publication.

(2) Utilities shall ensure that they are able to supply proof of the dates on which notices are [F25submitted to the UK e-notification service] for publication.

(3) Where the [F26the provider of the UK e-notification service] has given the utility confirmation of F27... the publication of the information sent, indicating the date of that publication, that confirmation shall constitute proof of publication.

(4) Utilities may [F28submit] notices in respect of works, supply or service contracts to the [F29UK e-notification service] for publication even where they are not required by these Regulations to do soF30....

F31(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F32(6) In these Regulations, “the UK e-notification service” has the meaning given by regulation 51(5) of the Public Contracts Regulations 2015, and regulation 51(6) and (7) of those Regulations apply for the purposes of these Regulations as if the reference to “paragraph (3)” in regulation 51(6)(b) were a reference to paragraph (3) of this regulation.]

Textual Amendments

Publication [F33otherwise than on the UK e-notification service] E+W+N.I.
Publication on buyer profiles

72.—(1) In addition to the publication of the notices referred to in regulations [F3452,] 67 to 70, 91 and 95 [F35on the UK e-notification service], utilities may publish the information contained in them on the internet on a buyer profile.

(2) A buyer profile may also include (in addition to the periodic indicative notices referred to in regulation 67(3)(b))—

(a)information on ongoing invitations to tender, scheduled purchases, contracts concluded, procedures cancelled; and

(b)any useful general information, such as a contact point, a telephone and a facsimile number, a postal address and an e-mail address.

Timing and content of publication at national level

(3) The notices referred to in regulations [F3652,] 67 to 70, 91 and 95, and the information contained in them shall not be published [F37otherwise than on the UK e-notification service before they are published on that service.]

(4) But publication may in any event take place [F38otherwise than on the UK e-notification service] where utilities have not been notified of the publication [F39on that service within 48 hours after the notice was submitted to that service].

(5) Notices published [F40otherwise than on the UK e-notification service] shall not contain information other than that contained in the notices [F41submitted to that service] or published on a buyer profile, but shall indicate the date of [F42submission of the notice to that service] or its publication on the buyer profile.

(6) Where a periodic indicative notice is to be published on a buyer profile for the purposes of regulation 67(3)(b)—

(a)the periodic indicative notice may not be so published before the notice referred to in regulation 67(4) is [F43submitted to the UK e-notification service]; and

(b)the periodic indicative notice shall indicate the date of that [F44submission].

Textual Amendments

Electronic availability of procurement documentsE+W+N.I.

73.—(1) Utilities shall, by means of the internet, offer unrestricted and full direct access free of charge to the procurement documents from the date of publication [F45on the UK e-notification service] of a notice in accordance with regulation 71 F46...

(2) But where the means of calling for competition is a notice on the existence of a qualification system, the access referred to in paragraph (1) shall be offered as soon as possible and at the latest when the invitation to tender or to negotiate is sent.

(3) The text of the notice or of the invitation shall specify the internet address at which the procurement documents are accessible.

(4) Where unrestricted and full direct access free of charge to certain procurement documents cannot be offered by means of the internet for one of the reasons set out in regulation 40(3), utilities may indicate in the notice F47... that the procurement documents concerned will be transmitted by means other than the internet in accordance with paragraphs (7) and (8).

(5) Where unrestricted and full direct access free of charge to certain procurement documents cannot be offered by means of the internet because utilities intend to apply regulation 39(3), utilities shall indicate in—

(a)the notice; [F48or]

F49(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)where the means of calling for competition is a notice on the existence of a qualification system, the procurement documents,

which measures aimed at protecting the confidential nature of the information they require and how access can be obtained to the documents concerned.

(6) In the cases referred to in paragraphs (4) and (5), the time limit for the submission of tenders shall be prolonged by 5 days, except—

(a)in the cases of duly substantiated urgency referred to in regulation 45(5), and

(b)where the time limit is set by mutual agreements in accordance with regulations 46(5) or 47(5).

(7) Provided that it has been requested in good time, utilities shall supply to all tenderers taking part in the procurement procedure additional information relating to the specifications and any supporting documents no later than 6 days before the time limit fixed for the receipt of tenders.

(8) In the case of an accelerated open procedure, the period mentioned in paragraph (7) shall be 4 days.

Textual Amendments

Invitations to candidatesE+W+N.I.

74.—(1) In restricted procedures, competitive dialogue procedures, innovation partnerships and negotiated procedures with prior call for competition, utilities shall simultaneously and in writing invite the selected candidates to submit their tenders, to take part in the dialogue or to negotiate.

F50(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The invitations required by [F51paragraph (1)] shall—

(a)include a reference to the electronic address at which the procurement documents have been made directly available by electronic means, and

(b)be accompanied by the procurement documents, where those documents have not been the subject of unrestricted and full direct access, free of charge, for the reasons referred to in regulation 73(4) or (5) and have not been made otherwise available.

(4) The invitations required by paragraph (1) shall also contain at least the following information—

(a)the final date for receipt of tenders, the address to which they are to be sent and the language or languages in which they are to be drawn up;

(b)in the case of competitive dialogue, the date and the address set for the start of consultation and the language or languages to be used;

(c)a reference to any published call for competition;

(d)an indication of any documents to be attached;

(e)the criteria for the award of the contract, where they are not indicated in the notice on the existence of a qualification system used as a means of calling for competition;

(f)the relative weighting of the contract award criteria or, where appropriate, the order of importance of such criteria, if this information is not given in the contract notice, the notice on the existence of a qualification system or the specifications.

(5) But in the case of contracts awarded through a competitive dialogue or an innovation partnership, the information referred to in paragraph (4)(a) shall not appear in the invitation to negotiate but it shall appear in the invitation to submit a tender.

F52(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Informing applicants for qualification, candidates and tenderersE+W+N.I.

75.—(1) Utilities shall as soon as possible inform each candidate and tenderer of decisions reached concerning the conclusion of a framework agreement, the award of a contract, or admittance to a dynamic purchasing system, including the grounds for any decision—

(a)not to conclude a framework agreement;

(b)not to award a contract for which there has been a call for competition;

(c)to recommence the procedure; or

(d)not to implement a dynamic purchasing system.

(2) On request from the candidate or tenderer concerned, a utility shall, as soon as possible, and in any event within 15 days from receipt of a written request, inform—

(a)any unsuccessful candidate of the reasons for the rejection of its request to participate;

(b)any unsuccessful tenderer of the reasons for the rejection of its tender, including, for the cases referred to in regulation 60(14) and (15), the reasons for its decision of non-equivalence or their decision that the works, supplies or services do not meet the performance or functional requirements;

(c)any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer or the parties to the framework agreement;

(d)any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers.

(3) Utilities may decide to withhold certain information referred to in paragraphs (1) and (2) where the release of such information—

(a)would impede law enforcement or would otherwise be contrary to the public interest;

(b)would prejudice the legitimate commercial interests of a particular economic operator, public or private; or

(c)might prejudice fair competition between economic operators.

Qualification systems

(4) Utilities which establish and operate a system of qualification shall inform applicants of their decision as to qualification within a period of 6 months.

(5) If the decision will take longer than 4 months from the presentation of an application, the utility shall inform the applicant, within 2 months of the application, of the reasons justifying the longer period and of the date by which his application will be accepted or refused.

(6) Applicants whose qualification is refused shall be informed of the refusal decision and the reasons for that decision as soon as possible and no more than 15 days later than the date of the refusal decision.

(7) The reasons shall be based on the criteria for qualification referred to in regulation 77(4).

(8) Utilities which establish and operate a system of qualification may bring the qualification of an economic operator to an end only for reasons based on the criteria for qualification referred to in regulation 77(3) to (6).

(9) Any intention to bring the qualification to an end shall be notified in writing to the economic operator at least 15 days before the date on which the qualification is due to end, together with the reason or reasons justifying the proposed action.

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