The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2010

Regulation 6

SCHEDULE 1 QUALIFYING PROJECTS

1.  The requirements in this paragraph are that the developer has–

(a) entered into a bilateral agreement with the holder of a co-ordination licence in accordance with the arrangements for connection and use of the transmission system; and

(b) entered into an agreement for lease of the seabed with the Crown Estate Commissioners(1).

2.  The requirements in this paragraph are that the developer has–

(a) entered into a bilateral agreement with the holder of a co-ordination licence in accordance with the arrangements for connection and use of the transmission system, or entered into an agreement or accepted an offer of an agreement, with the electricity distributor responsible for the distribution system to which the transmission assets are or are intended to be connected;

(b) entered into an agreement for lease of the seabed with the Crown Estate Commissioners;

(c) obtained all necessary consents and property rights for the transmission assets to be constructed and maintained and ensured that any such consents or property rights which are capable of being assignable to the successful bidder are so assignable;

(d) completed construction of, or entered into all necessary contracts for the construction of the transmission assets and ensured that any such contracts are assignable to the successful bidder; and

(e) secured financing to construct the transmission assets.

3.  Where the Authority considers that the developer has not met the requirements in paragraph 2(c), (d) or (e), it may deem a project to be a qualifying project for those purposes, where the Authority is satisfied that the developer will use its reasonable endeavours to meet those requirements within a reasonable time period, such period to be notified by the Authority to the developer and to be no later than 31 March 2012.

Regulation 8

SCHEDULE 2 ENTRY CONDITIONS

1.  The conditions in this paragraph are that the developer has–

(a) provided information to the Authority’s satisfaction to enable the Authority to both issue an information memorandum and establish a data room;

(b) provided an undertaking in writing to the Authority that where the information provided in sub-paragraph (a) has changed, or where new relevant information becomes available, the developer shall provide that information to the Authority;

(c) provided a written warranty to the Authority, in a form reasonably acceptable to the Authority, that any information provided pursuant to sub-paragraph (a) or (b) is to the best of the knowledge and belief of the developer, having made reasonable enquiries, true, accurate and complete and is not misleading in all material respects;

(d) signed the confidentiality agreement;

(e) provided an undertaking in writing to the Authority to respond to all queries from the Authority within a reasonable period, whether arising from the Authority or forwarded by the Authority on behalf of a third party; and

(f) complied with such other conditions as the Authority may determine are necessary in relation to that particular tender exercise.

2.  The conditions in this paragraph are that the developer has–

(a) provided information to the Authority’s satisfaction to enable the Authority to both issue an information memorandum and establish a data room;

(b) provided an undertaking in writing to the Authority that where the information provided in sub-paragraph (a) has changed, or where new relevant information becomes available, the developer shall provide that information to the Authority;

(c) provided a written warranty to the Authority, in a form reasonably acceptable to the Authority, that any information provided pursuant to sub-paragraph (a) or (b) is to the best of the knowledge and belief of the developer, having made reasonable enquiries, true, accurate and complete and is not misleading in all material respects;

(d) signed the confidentiality agreement;

(e) filled in the transfer agreement, as far as possible, with all relevant information available to the developer, and provided an undertaking in writing to the Authority to continue to fill in the transfer agreement with all relevant information;

(f) demonstrated to the Authority’s satisfaction that where the transmission assets are to be constructed in phases, the transmission assets in respect of each phase can be separately transferred to the successful bidder once those assets are available for use for the transmission of electricity;

(g) provided an undertaking in writing to the Authority that in the event that the developer decides to participate in any stage of a tender exercise as a bidder, qualifying bidder or bidder group in respect of a qualifying project for which it is the developer, to put in place and maintain appropriate internal information barriers to the satisfaction of the Authority, in order to prevent information passing between the developer and the bidder, qualifying bidder or bidder group, as the case may be;

(h) provided an undertaking in writing to the Authority to respond to all queries from the Authority within a reasonable period, whether arising from the Authority or forwarded by the Authority on behalf of a third party; and

(i) complied with such other conditions as the Authority may determine are necessary in relation to that particular transitional tender exercise.

Regulation 11

SCHEDULE 3 PRE-QUALIFICATION

1.  The information specified in this Schedule in relation to a particular tender exercise is as follows–

(a) the stages of the tender exercise;

(b) the rules particular to the pre-qualification stage of the tender exercise;

(c) the pre-qualification questionnaire;

(d) the instructions that apply to the pre-qualification questionnaire;

(e) the date, time and manner in which the following are to be submitted to the Authority–

(i) a completed pre-qualification questionnaire; and

(ii) the amount of payment as calculated in accordance with the Authority’s cost recovery methodology in relation to the pre-qualification stage of that tender exercise;

(f) the selection criteria to be applied by the Authority in evaluating a completed pre-qualification questionnaire submitted to the Authority; and

(g) any other such information in relation to the pre-qualification stage of the particular tender exercise as the Authority may determine is necessary.

Regulation 13

SCHEDULE 4 QUALIFICATION TO TENDER

1.  The information specified in this Schedule in relation to a particular tender exercise is as follows–

(a) the rules particular to the qualification to tender stage of the tender exercise;

(b) the qualification to tender questionnaire;

(c) the instructions that apply to the qualification to tender questionnaire;

(d) the date, time and manner in which a completed qualification to tender questionnaire is to be submitted to the Authority;

(e) the evaluation criteria to be applied by the Authority in evaluating a completed qualification to tender questionnaire submitted to the Authority; and

(f) any other such information in relation to the qualification to tender stage of the particular tender exercise as the Authority may determine is necessary.

Regulation 15

SCHEDULE 5 INVITATION TO TENDER

1.  The information specified in this Schedule in relation to a particular tender exercise is as follows–

(a) the rules particular to the invitation to tender stage of the tender exercise;

(b) a description of the information required by the Authority for the submission of a tender;

(c) the date, time and manner in which a tender is to be submitted to the Authority;

(d) the evaluation criteria to be applied by the Authority in evaluating tenders; and

(e) any other such information in relation to the invitation to tender stage of the particular tender exercise as the Authority may determine is necessary.

Regulation 17

SCHEDULE 6 BEST AND FINAL OFFER

1.  The information specified in this Schedule in relation to a particular tender exercise is as follows–

(a) the rules particular to the best and final offer stage of the tender exercise;

(b) a description of the information required by the Authority for the submission of a best and final offer;

(c) the date, time and manner in which a best and final offer is to be submitted to the Authority;

(d) the evaluation criteria to be applied by the Authority in evaluating best and final offers; and

(e) any other such information in relation to the best and final offer stage of the particular tender exercise as the Authority may determine is necessary.

Regulation 20

SCHEDULE 7 EVENTS OF CANCELLATION

1.  The events in this Schedule are–

(a) the Authority does not receive any completed and compliant pre-qualification questionnaires in accordance with regulation 12;

(b) the Authority does not receive any completed and compliant qualification to tender questionnaires in accordance with regulation 14;

(c) the Authority determines that there are no bidders or qualifying bidders in respect of a qualifying project;

(d) the Authority does not receive any compliant tenders in accordance with regulation 16;

(e) the Authority does not receive any compliant best and final offers in accordance with regulation 17;

(f) a preferred bidder withdraws from a tender exercise in respect of a particular qualifying project or is disqualified from a tender exercise and the Authority has not determined a reserve bidder in respect of that qualifying project;

(g) the matters referred to in the notice published in accordance with regulation 18(5) are not satisfied by a preferred bidder and the Authority has not determined a reserve bidder;

(h) a reserve bidder withdraws from a tender exercise in respect of a particular qualifying project or is disqualified from a tender exercise after a preferred bidder has withdrawn from that tender exercise in respect of that qualifying project or has been disqualified from a tender exercise, or after a preferred bidder has failed to satisfy the matters referred to in the notice published in accordance with regulation 18(5);

(i) the matters referred to in the notice published in accordance with regulation 18(5) are not satisfied by a reserve bidder and the preferred bidder has withdrawn from that tender exercise in respect of that qualifying project or has been disqualified from a tender exercise, or the preferred bidder has failed to satisfy those matters;

(j) a successful bidder withdraws from a tender exercise in respect of a particular qualifying project;

(k) a successful bidder fails to make a payment in accordance with regulation 23(4);

(l) a developer has been disqualified from a tender exercise in accordance with regulation 22(1);

(m) a developer fails to make a payment or provide security in accordance with regulation 7 or 26(2);

(n) a developer fails to meet the requirements specified in paragraph 2(c),(d) or (e) of Schedule 1 pursuant to the provisions specified in paragraph 3 of Schedule 1;

(o) a developer fails to meet the conditions specified in paragraph 1 or 2 of Schedule 2, as the case may be, in accordance with regulation 8;

(p) a developer does not agree the variation to the bilateral agreement with the holder of a co-ordination licence in order that the preferred bidder has in place a valid bilateral agreement;

(q) a developer terminates its bilateral agreement with the holder of a co-ordination licence;

(r) a developer withdraws its qualifying project from a tender exercise for any reason;

(s) the Authority determines that it would not be appropriate to grant an offshore transmission licence to any qualifying bidder.

Regulation 22

SCHEDULE 8 EVENTS OF DISQUALIFICATION

1.  The events in this Schedule in relation to a developer, bidder, qualifying bidder, bidder group, preferred bidder, reserve bidder or successful bidder, as the case may be, are–

(a) causing or inducing any person to enter into an agreement to collude or to inform a developer, bidder, qualifying bidder, bidder group, preferred bidder, reserve bidder or successful bidder of the amount of any rival tender;

(b) a material breach of the tender rules, any rules particular to the pre-qualification, qualification to tender, invitation to tender and best and final offer stages of a tender exercise or any requirements specified in these Regulations;

(c) submitting any information to the Authority which is false or misleading unless the provision of further information is acceptable to the Authority;

(d) engaging in, attempting to engage in, allowing or encouraging any anti-competitive behaviour by or between any developer, bidder, qualifying bidder, bidder group, preferred bidder, reserve bidder or successful bidder;

(e) doing anything which would constitute a breach of the Prevention of Corruption Acts 1889 to 1916.

2.  The events in this Schedule in relation to a developer are–

(a) offering to pay or give any sum of money, inducement or valuable consideration directly or indirectly to any officer of the Authority, bidder, qualifying bidder, bidder group, preferred bidder, reserve bidder or successful bidder who is involved in a tender exercise (or any related party of these) in relation to any actions or omissions;

(b) contacting a bidder, qualifying bidder, bidder group who is subject to a tender exercise (or any related party of these) outside the tender rules or any requirements specified in these Regulations. This includes, but is not limited to, contact for the purposes of discussing the possible transfer of an employee of a bidder, qualifying bidder, bidder group to the employment of the developer for the purpose of a tender exercise in respect of a particular qualifying project;

(c) a breach of any warranty or undertaking provided to the Authority in accordance with these Regulations, unless the Authority permits that breach to be remedied within a period specified by the Authority by notice to the developer;

(d) failure to provide information to the Authority in accordance with regulation 4(3) unless the Authority permits such information to be provided within a period specified by the Authority by notice to the developer.

3.  The events in this Schedule in relation to a bidder, qualifying bidder, bidder group, preferred bidder, reserve bidder or successful bidder are–

(a) failure to make any payment as required in accordance with these Regulations, unless that failure has been remedied within a period not exceeding ten days in accordance with regulation 26(3);

(b) fixing or adjusting the amount of its tender by or in accordance with any agreement or arrangement with any other bidder, qualifying bidder, bidder group, preferred bidder, reserve bidder or successful bidder or by improperly using insider information;

(c) entering into any agreement or arrangement with any other bidder, qualifying bidder, bidder group, preferred bidder, reserve bidder or successful bidder that it shall refrain from submitting a tender or as to the amount of the tender submitted;

(d) communicating to any person other than the Authority the details of its proposed tender in respect of a qualifying project, except where this disclosure is made in confidence in order to obtain quotations necessary for the preparation of that tender;

(e) where the bidding entity is a bidder group, any change to the membership of that bidder group other than a change which has been approved by the Authority or any breach of the tender rules in respect of bidder groups;

(f) offering to pay or give any sum of money, inducement or valuable consideration directly or indirectly to any officer of the Authority, the holder of a co-ordination licence or a developer, who is subject to a tender exercise in relation to any actions or omissions;

(g) contacting any officer of the Authority or the holder of a co-ordination licence, or in relation to a bidder, qualifying bidder or bidder group only, contacting any officer of a developer, who is subject to a tender exercise outside the tender rules, any rules particular to the pre-qualification, qualification to tender, invitation to tender and best and final offer stages of a tender exercise or any requirements specified in these Regulations. This includes, but is not limited to, contact for the purposes of discussing the possible transfer of such officer to the employment of the bidder, qualifying bidder, bidder group, preferred bidder, reserve bidder or successful bidder for the purpose of a tender exercise in respect of a particular qualifying project.

(1)

The Crown Estate Commissioners are a body corporate under section 1(1) of the Crown Estate Act 1961 (c.55).