The Utilities Contracts (Scotland) Regulations 2012

General exclusions

6.  These Regulations do not apply to the seeking of offers in relation to a proposed contract or dynamic purchasing system—

(a) other than for the purpose of carrying out an activity specified in the Part of Schedule 1 in which the utility is specified or in respect of a proposed contract referred to in regulation 5(5);

(b) for the purpose of carrying out any activity outside the territory of the Communities but only if the carrying out of that activity does not involve the physical use of a network or geographical area within the Communities;

(c) for the purpose of acquiring goods, works or services in order to sell, hire or provide them to another person unless the utility has a special or exclusive right to sell, hire or provide such goods, works or services or other persons are not free to sell, hire or provide them under the same conditions;

(d) which is classified as secret or where the performance of the contract must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom requires it;

(e) where different rules govern the procedures leading to the award of the contract and it is to be entered into in accordance with—

(i) an international agreement concluded in conformity with the TFEU to which the United Kingdom and a State which is not a relevant State are parties and it relates to goods or the carrying out of a work or works or the provision of services intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops; or

(iii) the contract award procedures of an organisation of which only States are members (an “international organisation”) or of which only States or international organisations are members;

(f) by a utility which engages in an activity specified in Category 1 of Schedule 1 for the purchase of water;

(g) by a utility which engages in an activity specified in Categories 2 to 6 of Schedule 1 for the purchase of energy or of fuel for the production of energy;

(h) by a utility specified in column 1 of Part S of Schedule 1 for the purpose of engaging in an activity specified in column 2 of that Part of that Schedule where that activity is provided in a geographical area in which other persons are free to provide the service under the same conditions as the utility;

(i) under which services are to be provided by a contracting authority, or by a person who is a contracting authority in another relevant State because that contracting authority or person has an exclusive right—

(i) to provide the services; or

(ii) which is necessary for the provision of the services,

in accordance with any published law, regulation or administrative provision which is compatible with the TFEU;

(j) for the acquisition of land, including existing buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land;

(k) for arbitration or conciliation services;

(l) for financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, in particular transactions by the utility to raise money or capital, except where these Regulations apply by virtue of part T of Schedule 1 (see paragraph 23(d) in the second column of that Schedule);

(m) for employment and other contracts of service;

(n) for research and development services unless—

(i) the benefits are to accrue exclusively to the utility for its use in the conduct of its own affairs; and

(ii) the services are to be wholly paid for by the utility;

(o) which is a works concession contract or a services concession contract which is awarded by a utility carrying out an activity specified in the second column of Schedule 1, where the concession contract is awarded for carrying out or providing those activities; or

(p) where—

(i) the Public Defence and Security Public Contracts Regulations 2011(1) apply; or

(ii) the application of those Regulations is excluded by regulation 9 (thresholds) or 7 (general exclusions) of those Regulations.

(1)

S.I. 2011/1848.