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The Utilities Contracts (Scotland) Regulations 2016

Changes over time for: Cross Heading: SECTION 2

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

  • reg. 69 heading substituted by S.S.I. 2019/112 reg. 5(41)(a) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 70 heading words substituted by S.S.I. 2019/112 reg. 5(42)(a) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • Regulations applied by 2023 c. 54 s. 119(2)(b)
  • Regulations power to amend conferred by 2023 c. 54 s. 115(3)(4)

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):

  • Pt. 5A inserted by S.S.I. 2019/112 reg. 5(61) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 3(2)-(2C) substituted for reg. 3(2) by S.S.I. 2019/112 reg. 5(3)(b) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 15A inserted by S.S.I. 2019/112 reg. 5(7) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 20(1)(d)(i)(aa) words substituted by S.S.I. 2019/112 reg. 5(11)(a)(i) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 20(1)(d)(i)(bb) words substituted by S.S.I. 2019/112 reg. 5(11)(a)(ii) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 38A inserted by S.S.I. 2019/112 reg. 5(26) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 41(1) reg. 41 renumbered as reg. 41(1) by S.S.I. 2019/112 reg. 5(27)(b) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 41(1) words omitted by S.S.I. 2019/112 reg. 5(27)(b)(i) (This amendment not applied to legislation.gov.uk. Reg. 5(27)(b)(i) substituted by S.S.I. 2019/114, reg. 2(5)(a)(ii)(aa) and then S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 41(1) words substituted by S.S.I. 2019/112 reg. 5(27)(b)(ii) (This amendment not applied to legislation.gov.uk. Reg. 5(27)(b)(ii) omitted by virtue of S.S.I. 2019/114, reg. 2(5)(a)(ii)(bb))
  • reg. 41(1) words substituted by S.S.I. 2019/112 reg. 5(27)(b)(iii) (This amendment not applied to legislation.gov.uk. Reg. 5(27)(b)(iii) substituted by S.S.I. 2019/114, reg. 2(5)(a)(ii)(cc) and then S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 41(1) words substituted by S.S.I. 2019/112, reg. 5(27)(b)(i) (as substituted) by S.S.I. 2019/114 reg. 2(5)(a)(ii) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/114 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(b))
  • reg. 41(1) words substituted by S.S.I. 2019/112, reg. 5(27)(b)(iii) (as substituted) by S.S.I. 2019/114 reg. 2(5)(a)(ii) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/114 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(b))
  • reg. 41(2) inserted by S.S.I. 2019/112 reg. 5(27)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 50(25)(25A) substituted for reg. 50(25) by S.S.I. 2019/112 reg. 5(33)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 66(2A) inserted by S.S.I. 2019/112 reg. 5(38)(b) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 69(5)(6) inserted by S.S.I. 2019/112 reg. 5(41)(f) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 74(6A)-(6C) inserted by S.S.I. 2019/112 reg. 5(44)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 100(3)(3A) substituted for reg. 100(3) by S.S.I. 2019/112 reg. 5(58)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
  • reg. 100(4A) inserted by S.S.I. 2019/112, reg. 5(58)(da) (as substituted) by S.S.I. 2019/114 reg. 2(5)(c)(ii) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/114 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(b))

SECTION 2SPublication and transparency

Periodic indicative noticesS

65.—(1) A utility may make known its intentions of a planned procurement through the publication of a periodic indicative notice.

(2) A periodic indicative notice must contain the information set out in section I of Part A 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 must—

(a)[F2submit] it for publication in accordance with regulation 69 ([F3publication on the UK e-notification service]); or

(b)publish it on the utility’s buyer profile in accordance with regulation 70 (publication at national level).

(4) Where the utility intends to publish the periodic indicative notice on its buyer profile, the utility must [F4submit] for publication, in accordance with regulation 69 ([F5publication on the UK e-notification service]), a notice of the publication on its buyer profile.

(5) The notice of publication referred to in paragraph (4) must contain 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].

F7(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) [F9The] period covered by a periodic indicative notice must be a maximum of 12 months from the date on which the notice is sent for publication.

F10(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I1Reg. 65 in force at 18.4.2016, see reg. 1(2)

Notices on the existence of a qualification systemS

66.—(1) This regulation applies where a utility chooses to set up a qualification system in accordance with regulation 75 (qualification systems).

(2) The qualification system must be the subject of a notice F11..., indicating the purpose of the qualification system and how to have access to the rules concerning its operation.

[F12(2A) Such a notice must include the information set out in Annex X to the Utilities Contracts Directive, but as if, in paragraph 10, “Article 82” were a reference to regulation 80 of these Regulations.]

(3) The utility must—

(a)indicate the period of validity of the qualification system in the notice on the existence of the system; and

(b)[F13give notice] of any change in the period of validity.

(4) The notification in paragraph (3)(b) must be made by [F14submitting to the UK e-notification service]—

(a)where the period of validity is changed without terminating the system, [F15a notice] on the existence of qualification systems; and

(b)where the system is terminated, a contract award notice referred to in regulation 68 (contract award notices).

Textual Amendments

Commencement Information

I2Reg. 66 in force at 18.4.2016, see reg. 1(2)

[F16Contract noticesS

67.—(1) A contract notice must contain the information set out in the relevant part of Annex XI to the Utilities Contracts Directive, but as if—

(a)in paragraph 10 of Part A, “the third and fourth sub-paragraph of Article 73(1)” were a reference to regulation 71(4) and (5) of these Regulations (electronic availability of procurement documents)”,

(b)in—

(i)paragraph 19 of Part A,

(ii)paragraph 16 of Part B,

(iii)paragraph 15 of Part C,

“Article 82” were a reference to regulation 80 of these Regulations,

(c)in—

(i)paragraph 20 of Part A,

(ii)paragraph 18 of Part B,

(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 (Scotland) Regulations 2016)”, and

(d)in—

(i)paragraph 22 of Part A,

(ii)paragraph 20 of Part B,

(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 must be submitted for publication in accordance with regulation 69 (publication on the UK e-notification service).]

Textual Amendments

Contract award noticesS

68.—(1) Not later than 30 days after the award of a contract or conclusion of a framework agreement, a utility must [F17submit] for publication in accordance with regulation 69 ([F18publication on the UK e-notification service]) a contract award notice on the results of the procurement.

[F19(2) A contract award notice must—

(a)contain the information set out in Annex XII 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 (Scotland) Regulations 2016)”,

(ii)in paragraph 5(c), “Article 50” were a reference to regulation 48 (use of the negotiated procedure without prior call for competition) of these Regulations,

(iii)in paragraph 9, “Article 50(h)” were a reference to regulation 48(4)(d) of these Regulations,

[F20(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 62(1) (variants) of these Regulations,

(vi)in paragraph 20, “Article 84” were a reference to regulation 82 (abnormally low tenders) of these Regulations,

(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 69 (publication on the UK e-notification service).]

F21(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In accordance with paragraph (5), a utility must [F22submit] for publication a contract award notice in respect of the award of a supply, service or works contract based on a framework agreement if the estimated value of the contract under the framework is equal to or greater than the threshold referred to in regulation 15(1) (thresholds) applicable to that type of contract.

(5) The utility must [F23submit] such notices for publication in accordance with regulation 69 ([F24publication on the UK e-notification service]) on a quarterly basis, within 30 days of the end of each quarter.

(6) In the case of the award of a contract based upon a dynamic purchasing system, a utility must either—

(a)[F25submit] for publication in accordance with regulation 69 ([F26publication on the UK e-notification service]) a contract award notice within 30 days after the award of each such contract; or

(b)group notices referred to in sub-paragraph (a) on a quarterly basis, in which case the utility must [F27submit] for publication in accordance with regulation 69 ([F26publication on the UK e-notification service]) the grouped notices within 30 days of the end of each quarter.

(7) A utility may withhold from publication information on the contract award or the conclusion of the framework agreement where the release of the information—

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

(b)would prejudice the commercial interests of any person; or

(c)might prejudice fair competition between economic operators.

(8) In the case of contracts for research and development services, the information in paragraph (2) concerning the nature and quantity of the services may be limited to—

(a)where the contract has been awarded by a negotiated procedure without a call for competition in accordance with regulation 48(1)(b) (use of the negotiated procedure without prior call for competition), the indication “R & D Services”; and

(b)where the contract has been awarded by a procedure with a call for competition, information at least as detailed as was indicated in the notice that was used as a means of calling for competition.

Textual Amendments

Commencement Information

I3Reg. 68 in force at 18.4.2016, see reg. 1(2)

[F28Publication on the UK e-notification service]S

69.—(1) The notices required by regulations 65 to 68 to be [F29submitted] for publication in accordance with this regulation must—

(a)be [F29submitted] [F30to the UK e-notification service] for publication; F31...

F31(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A utility must ensure that it is able to supply proof of the dates on which notices are [F32submitted to the UK e-notification service] for publication.

(3) Where the [F33provider of the UK e-notification service] has given the utility confirmation of F34... the publication of the information [F35submitted], indicating the date of that publication, that confirmation shall constitute proof of publication.

(4) A utility may [F36submit] notices in respect of works, supply or service contracts to the [F37UK e-notification service] for publication even where the utility is not required to do so by these Regulations F38....

[F39(5) In these Regulations, “the UK e-notification service” has the meaning given by regulation 52(5) of the Public Contracts (Scotland) Regulations,

(6) For the purposes of these Regulations, a notice of any description is submitted to the UK e-notification service if the information comprising the notice is entered in the portal in such form or manner as the portal requires and in compliance with any specific instructions given within the portal about the entry of information or any part of it.]

Textual Amendments

Commencement Information

I4Reg. 69 in force at 18.4.2016, see reg. 1(2)

Publication [F40otherwise than on the UK e-notification service] S

70.—(1) In addition to the publication of the notices referred to in regulations [F4150 and] 65 to 68 [F42on the UK e-notification service], a utility may publish the information contained in such notices on the internet on a buyer profile.

(2) A buyer profile may also include—

(a)periodic indicative notices which are published on it pursuant to regulation 65(3)(b) (periodic indicative notices);

(b)information on on-going invitations to tender, scheduled purchases, contracts concluded, procedures cancelled; and

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

(3) The notices referred to in regulations [F4350 and] 65 to 68, and the information contained in them, must not be published [F44otherwise than on the UK e-notification service before they are published on that service.]

(4) Notwithstanding paragraph (3), publication may take place [F45otherwise than on the UK e-notification service] where a utility has not been notified of the publication [F46on that service within 48 hours after the notice was submitted to that service].

(5) A notice published [F47otherwise than on the UK e-notification service] must not contain information other than that contained in the notice [F48submitted to that service] or published on a buyer profile, but must indicate the date of [F49submission 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—

(a)the periodic indicative notice may not be so published before the utility [F50submits to the UK e-notification service] the notice referred to in regulation 65(4) (periodic indicative notices); and

(b)the periodic indicative notice must indicate the date of that [F51submission].

Textual Amendments

Commencement Information

I5Reg. 70 in force at 18.4.2016, see reg. 1(2)

Electronic availability of procurement documentsS

71.—(1) Subject to paragraph (2), a utility must offer on the internet unrestricted and full direct access free of charge to the procurement documents from the date of publication of a notice in accordance with regulation 69 ([F52publication on the UK e-notification service]) F53....

(2) Where the means of calling for competition is a notice on the existence of a qualification system, the access referred to in paragraph (1) must 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 the invitation must specify the internet address at which the procurement documents are accessible.

(4) Where unrestricted and full direct access free of charge by electronic means to certain procurement documents cannot be offered for one of the reasons set out in regulation 38(3) (rules applicable to communication), a utility may indicate in the notice F54... that the procurement documents concerned will be transmitted by means other than electronic means in accordance with the periods mentioned in paragraphs (7) and (8).

(5) Where unrestricted and full direct access free of charge by electronic means to certain procurement documents cannot be offered because a utility intends to apply regulation 37(3) (confidentiality), the utility must indicate, in one of the following, which measures, aimed at protecting the confidential nature of the information, the utility requires and how access can be obtained to the documents—

(a)the notice;

F55(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(6) Where paragraph (4) or (5) applies, the time limit for the submission of tenders must be extended by 5 days, except—

(a)in a case of duly substantiated urgency referred to in regulation 43(5) (open procedure); or

(b)where the time limit is set by mutual agreement in accordance with regulation 44(6) (restricted procedure) or 45(6) (negotiated procedure with prior call for competition).

(7) Provided that it has been requested in good time, a utility must supply to all tenderers taking part in the procurement additional information relating to the specifications and any supporting documents, not 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 not be later than 4 days before the time limit fixed for the receipt of tenders.

Textual Amendments

Commencement Information

I6Reg. 71 in force at 18.4.2016, see reg. 1(2)

Invitations to candidatesS

72.—(1) In a restricted procedure, a competitive dialogue procedure, an innovation partnership and a negotiated procedure with prior call for competition, an invitation by a utility to selected candidates or to participants to submit a tender must be issued simultaneously and in writing.

(2) In a competitive dialogue procedure, an innovation partnership and a negotiated procedure with or without prior call for competition, an invitation by a utility to selected candidates to participate must be issued simultaneously and in writing.

F56(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The invitations required by paragraphs (1) [F57and (2)] must—

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

(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 71(4) or (5) (electronic availability of procurement documents) and have not already been made otherwise available.

(5) The invitations required by paragraphs (1) and (2) must also contain at least the following information—

(a)where tenders are to be submitted, the deadline for the receipt of the tenders, the address to which the tenders must be sent and the language or languages in which the tenders must 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 the call for competition published;

(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 criteria for the award of the contract or, where appropriate, the order of importance of such criteria, where they are not given in the contract notice, the notice on the existence of a qualification system or the specifications.

F58(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I7Reg. 72 in force at 18.4.2016, see reg. 1(2)

Informing applicants for qualification, candidates and tenderersS

73.—(1) A utility must as soon as possible after reaching a decision concerning the award of a contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system, inform each candidate and tenderer of the decision reached.

(2) Information provided in accordance with paragraph (1) must, where applicable, include 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.

(3) On request from the candidate or tenderer concerned, the utility must 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 58(13) and (14) (technical specifications), the reasons for its decision of non-equivalence or its 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; and

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

(4) A utility may decide to withhold certain information referred to in paragraphs (2) and (3), where the release of such information—

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

(b)would prejudice the commercial interests of any person; or

(c)might prejudice fair competition between economic operators.

(5) A utility which establishes and operates a system of qualification must—

(a)inform applicants of its decision as to qualification within a period of 6 months;

(b)if the decision as to qualification will take longer than 4 months from the presentation of an application, inform the applicant within 2 months of the application of—

(i)the reasons justifying the longer period; and

(ii)the date by which the application will be accepted or refused;

(c)inform applicants whose qualification is refused of the refusal decision and the reasons for that decision as soon as possible and no more than 15 days after the date of the refusal decision.

(6) A utility which establishes and operates a system of qualification must—

(a)base its reasons for decisions as to qualification on the criteria for qualification referred to in regulation 75(3) to (5) (qualification systems); and

(b)only bring the qualification of an economic operator to an end for reasons based on the criteria for qualification referred to in regulation 75(3) to (5) (qualification systems).

(7) Any intention to bring the qualification of an economic operator to an end must 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 reasons justifying the proposed action.

Commencement Information

I8Reg. 73 in force at 18.4.2016, see reg. 1(2)

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