PART 2 Amendments

5 Utilities Contracts (Scotland) Regulations 2016
1 The Utilities Contracts (Scotland) Regulations 2016 are amended as follows.
S.S.I. 2016/49 as amended by S.S.I. 2020/468, S.S.I. 2021/378, S.I. 2021/787 and S.I. 2022/766.
2 In regulation 2 (interpretation), in paragraph (1)—
(a) omit the definition of “invitation to confirm interest”,
(b) in the definition of “periodic indicative notice”, omit from “, or where” to “notices)”.
3 In regulation 15 (thresholds)—
(a) in paragraph (2)(b), for “regulation 16” substitute “regulation 16(1)(a)”,
(b) after paragraph (2) insert—

“2A For the avoidance of doubt, in determining for the purpose of paragraph (2)(b) the estimated aggregate value of all the lots, no account is to be taken of any lot if its estimated value is taken to be a certain amount by virtue of regulation 16(1)(b) (rather than being an amount calculated in accordance with regulation 16(1)(a)).”

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4 In regulation 16 (methods for calculating the estimated value)—
(a) in paragraph (1)—
(i) the words from “calculate” to the end become sub-paragraph (a),
(ii) in that sub-paragraph, after “calculate” insert “in accordance with the following paragraphs”,
(iii) at the end of that sub-paragraph insert—

“; or
(b) if it is not possible to calculate the estimated value of a contract, take its estimated value to be equal to the relevant threshold mentioned in regulation 15”

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(b) the regulation’s heading becomes “Estimating value”.
5 In regulation 38 (rules applicable to communication)—
(a) in paragraph (14)(a), omit from “or” to “sent”,
(b) in paragraph (16), omit “or the invitation to confirm interest”.
6 In regulation 42 (choice of procedures)—
(a) omit paragraph (5)(a),
(b) omit paragraph (6).
7 In regulation 43 (open procedure), in paragraph (4)—
(a) omit from “which was” to “procedures)”,
(b) for sub-paragraph (a) substitute—

“(a) the periodic indicative notice included (in addition to the information required by regulation 65(2)) the information set out in section II of Part A of Annex VI to the Utilities Contracts Directive, read subject to the following modifications—
(i) in paragraph 7, the reference to the third and fourth sub-paragraph of Article 73(1) is to be read as a reference to regulation 71(4) and (5) of these Regulations;
(ii) in paragraph 21, the reference to Article 82 is to be read as a reference to regulation 80 of these Regulations; and”

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8 In regulation 44 (restricted procedure), omit paragraph (3)(b) and the “or” immediately preceding it.
9 In regulation 45 (negotiated procedure with prior call for competition), omit paragraph (3)(b) and the “or” immediately preceding it.
10 In regulation 46 (competitive dialogue), omit paragraph (3)(b) and the “or” immediately preceding it.
11 In regulation 47 (innovation partnership), in paragraph (20), omit “, the invitation to confirm interest”.
12 In regulation 50 (dynamic purchasing systems)—
(a) omit paragraph (8)(a)(ii) and the “or” immediately preceding it,
(b) omit paragraph (21)(b).
13 In regulation 51 (electronic auctions), omit paragraph (4)(b).
14 In regulation 52 (electronic catalogues), omit paragraph (5)(a)(ii).
15 In regulation 61 (communication of technical specifications), omit paragraph (1)(b) and the “or” immediately preceding it.
16 In regulation 63 (division of contracts into lots)—
(a) in paragraph (2), omit “, in the invitation to confirm interest,”,
(b) in paragraph (3), omit “to confirm interest,”,
(c) in paragraph (5)(a), omit “to confirm interest,”.
17 In regulation 65 (periodic indicative notices)—
(a) omit paragraphs (6) and (7),
(b) in paragraph (8), for “Subject to paragraph (9), the” substitute “The”,
(c) omit paragraph (9).
18 In regulation 68 (contract award notices), omit paragraph (3).
19 In regulation 71 (electronic availability of procurement documents)—
(a) in paragraph (1), omit “or the date on which an invitation to confirm interest was sent”,
(b) in paragraph (4), omit “or the invitation to confirm interest”,
(c) omit paragraph (5)(b).
20 In regulation 72 (invitations to candidates)—
(a) omit paragraph (3),
(b) in paragraph (4), for “to (3)” substitute “and (2)”,
(c) omit paragraph (6).
21 In regulation 87 (termination of contracts), after paragraph (3) insert—

“4 A utility must not terminate a contract in a manner that circumvents the obligations under these Regulations.”

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22 In regulation 89 (publication of contracts), omit paragraph (1)(b).
23 In regulation 90 (principles of awarding contracts), in paragraph (5), omit “or periodic indicative notice”.
24 In regulation 100A (duty owed to economic operators from GPA parties), omit paragraph (3)(b).
25 In schedule 2A (international trade agreements), after the last entry (for Iceland, the Principality of Liechtenstein and the Kingdom of Norway), insert—

“Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and Australia, signed at London on 16th December 2021 and Adelaide on 17th December 2021.
Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and New Zealand, signed at London on 28th February 2022.”

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