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The Utilities Contracts (Scotland) Regulations 2016

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Changes and effects yet to be applied to Part 1 Chapter 3 Crossheading Excluded-contracts-and-design-contests-special-provisions-for-procurement-involving-defence-and-security-aspects-exclusions-applicable-to-all-utilities-and-special-exclusions-for-the-water-and-energy-sectors:

Changes and effects yet to be applied to the whole Instrument associated Parts and Chapters:

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  • 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))
SUB-SECTION 1SExclusions applicable to all utilities and special exclusions for the water and energy sectors
Exclusion: Contracts awarded for the purpose of resale or lease to third partiesS

17.—(1) Subject to paragraph (3), these Regulations do not apply to procurement for the award of a contract for the purpose of resale or lease to third parties, provided that the utility enjoys no special or exclusive right to sell or lease the subject of such contracts and other entities are free to sell or lease the subject of such contracts under the same conditions as the utility.

F1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Paragraph (1) does not apply to procurement carried out by a central purchasing body in order to perform a centralised purchasing activity.

Textual Amendments

Commencement Information

I1Reg. 17 in force at 18.4.2016, see reg. 1(2)

Exclusion: Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity [F2outside the United Kingdom] S

18.—(1) These Regulations do not apply to procurement for the award of a contract or the organisation of a design contest by a utility—

(a)for purposes other than the pursuit of its activities as described in regulations 8 to 14; or

(b)for the pursuit of such activities [F3outside the United Kingdom], in conditions not involving the physical use of a network or geographical area within the [F4United Kingdom].

F5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I2Reg. 18 in force at 18.4.2016, see reg. 1(2)

Exclusion: Contracts awarded and design contests organised pursuant to international rulesS

19.—(1) These Regulations do not apply to procurement for the award of a contract or the organisation of a design contest which the utility is obliged to award or organise in accordance with a procurement which is established by—

(a)an international agreement or any other legal instrument creating international law obligations, concluded in conformity with the [F6Retained] Treaties, between the United Kingdom and one or more [F7other] country or any part thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by its signatories; F8...

F8(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F9(2) These Regulations do not apply to procurement for the award of a relevant international contract or the organisation of a relevant international design contest in a case where the applicable procurement rules restrict the participation of economic operators in the procedure.

(2A) In the case of procurement for the award of a relevant international public contract or relevant international design contest where the applicable procurement rules do not restrict the participation of economic operators in the procedure, the only regulation that applies to the procurement is regulation 41B (equal treatment of economic operators).]

(3) This regulation does not apply to procurement for the award of a contract or the organisation of a design contest involving defence or security aspects which are awarded or organised pursuant to international rules.

[F10(4) In this regulation, “relevant international contract” and “relevant international design contest” mean a contract or design contest that—

(a)the utility undertakes or organises in accordance with procurement rules provided by an international organisation or international financing institution, and

(b)is fully financed, or co-financed for the most part, by that organisation or institution.]

Textual Amendments

F8Reg. 19(1)(b) and word omitted (coming into force in accordance with s. 7(1) of the amending Act) by virtue of Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024 (c. 6), Sch. para. 17(2) (with Sch. paras. 23-26)

F9Reg. 19(2)(2A) substituted for reg. 19(2) (coming into force in accordance with s. 7(1) of the amending Act) by Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024 (c. 6), Sch. para. 17(3) (with Sch. paras. 23-26)

F10Reg. 19(4) inserted (coming into force in accordance with s. 7(1) of the amending Act) by Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024 (c. 6), Sch. para. 17(4) (with Sch. paras. 23-26)

Commencement Information

I3Reg. 19 in force at 18.4.2016, see reg. 1(2)

Exclusion: Specific exclusions for service contractsS

20.—(1) These Regulations do not apply to procurement for the award of a service contract, framework agreement or dynamic purchasing system—

(a)for the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or of any estate, right, servitude or other interest in or over such land, buildings or property;

(b)to an audio-visual or radio media service provider, for broadcasting time or programme provision;

(c)for arbitration or conciliation services;

(d)for any of the following legal services—

(i)legal representation of a client by a lawyer F11... in—

(aa)arbitration or conciliation proceedings held in [F12the United Kingdom, another] country or before an international arbitration or conciliation instance; or

(bb)judicial proceedings before the courts, tribunals or public authorities of [F13the United Kingdom or another] country or before international courts, tribunals or institutions;

(ii)legal advice given by a lawyer F14...—

(aa)in preparation of any proceedings referred to in paragraph (i); or

(bb)where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings;

(iii)document certification or authentication services which must be provided by a notary public;

(iv)legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal F15... or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;

(v)other legal services which F16... are connected, even occasionally, with the exercise of official authority;

(e)for financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (1) as amended from time to time;

(f)for operations conducted with the European Financial Stability Facility or the European Stability Mechanism;

(g)for loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;

(h)which is an employment contract;

(i)for civil defence, civil protection or danger prevention services that are provided by non‑profit organisations or associations and which are specified under CPV Codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services; or

(j)for public passenger transport services by rail or metro.

(2) In this regulation—

(a)“Audio-visual Media Services Directive” means Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in member States concerning the provision of audio-visual media services(2) as amended from time to time;

[F17(b)“lawyer” means a person practising as an advocate, barrister or solicitor in any part of the United Kingdom or in Gibraltar;]

(c)“media service provider” has the meaning given by Article 1(1)(d) of the Audio-visual Media Services Directive; and

(d)“programme” has the meaning given by Article 1(1)(b) of the Audio-visual Media Services Directive but also includes radio programmes and radio programme materials, and “programme material” is to be construed accordingly.

Textual Amendments

Commencement Information

I4Reg. 20 in force at 18.4.2016, see reg. 1(2)

Exclusion: Service contracts awarded on the basis of an exclusive rightS

21.  These Regulations do not apply to procurement for a service contract to be awarded to a contracting authority or to an association of contracting authorities on the basis of an exclusive right which such authority or association of authorities enjoy pursuant to a law, regulation or published administrative provision which is compatible with [F18anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 because of the effect which the TFEU had immediately before IP completion day in giving rise to any of the powers, rights etc. mentioned in that section].

Textual Amendments

Commencement Information

I5Reg. 21 in force at 18.4.2016, see reg. 1(2)

Exclusion: Contracts awarded by certain utilities for the purchase of water and for the supply of energy or of fuels for the production of energyS

22.  These Regulations do not apply to procurement for the award of a contract—

(a)for the purchase of water by a utility engaged in one or both of the activities relating to drinking water referred to in regulation 10(1) (water);

(b)by a utility which is active in the energy sector by engaging in an activity referred to in regulation 8(1) (gas and heat), 9(1) (electricity) or 14 (extraction of oil and gas and exploration for, or extraction of, coal or other solid fuel) for the supply of—

(i)energy; or

(ii)fuels for the production of energy.

Commencement Information

I6Reg. 22 in force at 18.4.2016, see reg. 1(2)

(1)

OJ L 145, 30.4.2004, p.1.

(2)

OJ L 95, 15.4.2010, p.1.

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