The Utilities Contracts (Scotland) Regulations 2012

Exemption in respect of certain utilities operating in the energy sector

8.—(1) A utility carrying out one or more of the activities referred to in Commission Decision 97/367/EC(1) is excluded from having to comply with Parts 2 to 5 of these Regulations and regulations 34, 35, 37, 38 other than paragraph (2)(a), 40 and 43 in seeking offers in relation to a contract to be awarded for the purpose of carrying out one or more such activities.

(2) A utility which relies on the exemption in paragraph (1) must observe the principles of non-discrimination and competitive procurement, and in particular must—

(a) hold a competition unless it can objectively justify not doing so; and

(b) in—

(i) making information about its procurement intentions available to economic operators;

(ii) specifying its requirements to them;

(iii) establishing and using a qualification system;

(iv) selecting economic operators to tender for, or to negotiate, the contract;

(v) holding any design contest; and

(vi) awarding the contract,

make decisions objectively on the basis of relevant criteria.

(3) A utility which relies on the exemption in paragraph (1) must—

(a) in respect of a contract awarded by it the value of which, calculated in accordance with regulation 11, exceeds 5,000,000 euro, send to the Commission not later than 48 days after the award the following information—

(i) the name and address of the utility;

(ii) the nature of the contract, namely whether it is a supply contract, a services contract or a works contract and whether it is a framework agreement;

(iii) a clear indication of the nature (for example, by using the Classification of Products(2) by activity) of—

(aa) the goods to be purchased or hired under the contract;

(bb) the work or works to be carried out under the contract; or

(cc) the services to be provided under the contract;

(iv) whether the contract was advertised and, if so, in which publication and, if not, the procedure or method used to decide to whom the contract should be awarded;

(v) the number of offers received;

(vi) the date of the award of the contract;

(vii) the name and address of the person to whom the contract was awarded;

(viii) the value of the contract, calculated in accordance with regulation 11;

(ix) the expected duration of the contract;

(x) any share of the contract which has been, or may be, sub-contracted to which over 10% of the value of the consideration to be given under the contract is attributable;

(xi) in the case of a supply contract, the country of origin of the goods and in the case of a works contract or a services contract, the principal country from which the contract is to be performed;

(xii) where the contract was awarded on the basis of the offer which was the most economically advantageous, the main criteria on which the decision was based; and

(xiii) whether the contract was awarded to an economic operator which offered a variant on the requirements specified in the contract documents; and

(b) in respect of a supply contract or a services contract awarded by it the value of which, calculated in accordance with regulation 11, equals or exceeds 400,000 euro but does not exceed 5,000,000 euro—

(i) retain the information specified in sub-paragraph (a)(i) to (ix) for not less than 4 years after the award; and

(ii) either–

(aa) if the Commission requests that information in relation to any such contract, forthwith send it to the Minister; or

(bb) where no such request has been made, send that information to the Commission not later than 48 days after the end of the period of 3 months ending on the last day of March, June, September or December in which the contract was awarded.

(1)

OJ L 156, 13.6.97, p.55.

(2)

The Classification of Products by activity is the official product classification by activity which is used by the European Union for statistical purposes.