PART 2RULES APPLICABLE TO CONTRACTS
CHAPTER 3Conduct of the procedure
SECTION 2Publication and transparency
Periodic indicative notices67
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 F3, 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
F4submit 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 F5submit 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 F6, 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.
F485
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F496
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
F508
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Notices on the existence of a qualification system68
1
Where utilities choose to set up a qualification system in accordance with regulation 77, the system shall be the subject of a notice F7... indicating the purpose of the qualification system and how to have access to the rules concerning its operation.
F81A
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 F9give notice of any change in the period of validity F10by submitting to the UK e-notification service—
a
where the period of validity is changed without terminating the system, F11a notice on the existence of qualification systems;
b
where the system is terminated, a contract award notice referred to in regulation 70.
F12Contract notices69
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.
Contract award notices70
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 F13submit for publication a contract award notice on the results of the procurement procedure.
F142
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;
F52iiia
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.
F513
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4
In the case of framework agreements, utilities shall not be bound to F15submit 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
F16submit 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 F17submit 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.
F1Publication on the UK e-notification service71
1
2
Utilities shall ensure that they are able to supply proof of the dates on which notices are F21submitted to the UK e-notification service for publication.
3
4
F275
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F286
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.
Publication F2otherwise than on the UK e-notification service72
Publication on buyer profiles
1
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
4
5
Notices published F35otherwise than on the UK e-notification service shall not contain information other than that contained in the notices F36submitted to that service or published on a buyer profile, but shall indicate the date of F37submission 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 F38submitted to the UK e-notification service; and
b
the periodic indicative notice shall indicate the date of that F39submission.
Electronic availability of procurement documents73
1
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 F42... 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; F43or
F44b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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.
Invitations to candidates74
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.
F452
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3
The invitations required by F46paragraph (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.
F476
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Informing applicants for qualification, candidates and tenderers75
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.