17.—(1) A utility may establish and operate a system of qualification of suppliers or contractors if that system complies with the following paragraphs of this regulation.
(2) The system may involve different stages of qualification and shall be based on objective rules and criteria as determined from time to time by the utility using European standards as a reference when they are appropriate.
(3) The rules and criteria shall be made available on request to suppliers or contractors and if so requested any amendment of those rules and criteria shall be sent to them as the amendment is incorporated into the system.
(4) A utility may establish a system of qualification pursuant to which a supplier or contractor may qualify under the system of, or be certified by, another person, and in those circumstances the utility shall inform suppliers and contractors who apply to qualify of the name of that other person.
(5) The utility shall inform applicants for qualification of the success or failure of their application within a reasonable period and, if the decision will take longer than 6 months from the presentation of an application, the utility shall inform the applicant, within 2 months of the application, of the reasons justifying a longer period and of the date by which his application will be accepted or refused.
(6) In determining what rules and criteria are to be met by applicants to qualify under the system and in determining whether a particular applicant does qualify under the system a utility shall not impose conditions of an administrative, technical or financial nature on some suppliers or contractors which are not imposed upon others and shall not require the application of tests or the submission of evidence which duplicates objective evidence already available.
(7) A utility shall inform any applicant whose application to qualify is refused of the decision and the reasons for refusal.
(8) An application may only be refused if the applicant fails to meet the requirements for qualification laid down in accordance with paragraph (2) above.
(9) The utility shall keep a written record of qualified suppliers and contractors which may be divided into categories according to the type of contract for which the qualification is valid.
(10) The utility may cancel the qualification of a supplier or contractor who has qualified under the qualification system only if he does not continue to meet the rules and criteria laid down in accordance with paragraph (2) above.
(11) The utility may not cancel a qualification unless it notifies the supplier or contractor in writing beforehand of its intention and of the reason or reasons justifying the proposed cancellation.
(12) The utility shall send a notice substantially corresponding to the form set out in Part E of Schedule 4 and containing the information relating to the qualification system therein specified to the Official Journal when the system is first established and, if the utility expects to operate the system for more than three years, or if it has operated the system for more than three years, it shall send additional notices annually.
18.—(1) A utility using the restricted or the negotiated procedure, with or without a call for competition, shall make the selection of the suppliers or contractors to be invited to tender for or to negotiate the contract on the basis of objective criteria and rules which it determines and which it makes available to suppliers or contractors who request them.
(2) The criteria which a utility uses for deciding not to select a supplier or contractor may include the following, namely that the supplier or contractor—
(a)being an individual is bankrupt or has had a receiving order or administration order made against him or has made any composition or arrangement with or for the benefit of his creditors or has made any conveyance or assignment for the benefit of his creditors or appears unable to pay, or to have no reasonable prospect of being able to pay, a debt within the meaning of section 268 of the Insolvency Act 1986(1), or Article 242 of the Insolvency (Northern Ireland) Order 1989(2), or in Scotland has granted a trust deed for creditors or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of his estate, or is the subject of any similar procedure under the law of any other state;
(b)being a partnership constituted under Scots law has granted a trust deed or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of its estate;
(c)being a company has passed a resolution or is the subject of an order by the court for the company’s winding up otherwise than for the purposes of bona fide reconstruction or amalgamation, or has had a receiver, manager or administrator on behalf of a creditor appointed in respect of the company’s business or any part thereof or is the subject of proceedings for any of the above procedures or is the subject of similar procedures under the law of any other state;
(d)has been convicted of a criminal offence relating to the conduct of his business or profession;
(e)has committed an act of grave misconduct in the course of his business or profession;
(f)has not fulfilled obligations relating to the payment of social security contributions under the law of any part of the United Kingdom or of the member State in which the supplier or contractor is established;
(g)has not fulfilled obligations relating to the payment of taxes under the law of any part of the United Kingdom or of the member State in which the supplier or contractor is established; or
(h)is guilty of serious misrepresentation in providing information to the utility.
(3) Without prejudice to the generality of paragraph (1) above the criteria may be based on the need of the utility to reduce the number of suppliers or contractors selected to tender for or to negotiate the contract to a level which is justified by the characteristics of the award procedure and the resources required to complete it.
(4) The utility shall take account of the need to ensure adequate competition in determining the number of persons selected to tender for or to negotiate the contract.
19.—(1) In this regulation a “consortium” means two or more persons, at least one of whom is a supplier or contractor, acting jointly for the purpose of being awarded a contract.
(2) A utility shall not treat the tender of a consortium as ineligible nor decide not to include a consortium amongst those persons from whom it will make the selection of persons to be invited to tender for or to negotiate a contract on the grounds that the consortium has not formed a legal entity for the purpose of tendering for or negotiating the contract; but where a utility awards a contract to a consortium it may, if to do so is justified for the satisfactory performance of the contract, require the consortium to form a legal entity before entering into, or as a term of, the contract.
(3) In these Regulations references to a supplier or contractor where the supplier or contractor is a consortium includes a reference to each person who is a member of that consortium.
S.I. 1989/2405 (N.I.19).