The Utilities Contracts (Scotland) Regulations 2016

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations revoke and replace the Utilities Contracts (Scotland) Regulations 2012 (“the 2012 Regulations”).

Parts 1 to 4 implement, for Scotland, Directive 2014/25/EU of the European Parliament and of the Council of 26th February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p.243). These Parts impose obligations on utilities in relation to how they award contracts for the execution of works, the supply of products or the provision of services. In particular—

• Part 1 sets out the scope of the Regulations (including by reference to activities and to thresholds based on the estimated value of the procurement) and lays down some general rules and principles that apply to a procurement within the scope of the Regulations;

• Part 2 sets out detailed rules to be followed in relation to a procurement (except where Part 3 applies);

• Part 3 establishes particular procurement regimes for the procurement of social and other specific services and the use of design contests: these regimes impose less detailed requirements and allow greater flexibilities than under Part 2; and

• Part 4 imposes certain requirements on utilities in relation to recording and reporting information, including requirements about retaining copies of contracts above a certain value, documenting the progress of a procurement and sending information about a procurement to the Scottish Ministers and European Commission on request.

Part 5 contains provisions about remedies (and their facilitation) in relation to a procurement within the scope of Parts 1 to 4. These provisions replace Part 9 of the 2012 Regulations. In so doing, they implement, for Scotland, Council Directive 92/13/EEC of 25^th February 1992 on coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p.14) as amended(1).

Part 6 contains provisions which—

• revoke the 2012 Regulations and make consequential and miscellaneous amendments to secondary legislation; and

• make transitional, transitory and savings provisions, including provisions for certain procurements commenced before the commencement of these Regulations which are not to be affected by these Regulations.

A full regulatory assessment of the effect that these Regulations will have on the costs of business has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Scottish Procurement Directorate’s website at www.scotland.gov.uk/topics/government/spd.

(1)

By Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, Annex I - List referred to in Article 29 of the Act of Accession - XI. Internal Market and Financial Services - E. Procurement (OJ C 241, 29.8.1994); by Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded - Annex II: List referred to in Article 20 of the Act of Accession - 1. Free movement of goods - I. Public procurement (OJ L 236, 23.9.2003); Council Directive 2006/97/EC adapting certain Directives in the field of free movement of goods, by reason of the accession of Bulgaria and Romania (OJ L 363, 20.12.2006); Directive 2007/66/EC of the European Parliament and of the Council amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ L 335, 20.12.2007, p.31); and by Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts (OJ L 94, 28.3.2014, p.1).