PART 2RULES APPLICABLE TO CONTRACTS
CHAPTER 4CONTRACT PERFORMANCE
Conditions for performance of contracts84.
(1)
A utility may lay down special conditions relating to the performance of a contract, provided that they are—
(a)
linked to the subject-matter of the contract within the meaning of regulation 80(6) (contract award criteria); and
(b)
indicated in the call for competition or in the procurement documents.
(2)
Such conditions may include economic, innovation-related, environmental, social or employment-related considerations.
F1Electronic invoicing84A.
(1)
It shall be an implied term of all public contracts that utilities must accept and process electronic invoices for the provision of works, supplies or services in the performance of a contract where such invoices—
(a)
comply with the European standard on electronic invoicing reference to which has been published pursuant to Article 3(2) of Directive 2014/55/EU of the European Parliament and of the Council on electronic invoicing in public procurement, and
(b)
contain any of the syntaxes on the list published pursuant to Article 3(2) of that Directive.
(2)
In this regulation—
“electronic invoice” means an invoice containing the information components referred to in regulation 84A(3) that has been issued, transmitted and received in a structured electronic format which allows for its automatic and electronic processing,
“GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, and
“syntax” means the machine readable language or dialect used to represent the data elements contained in an electronic invoice.
(3)
An electronic invoice referred to in this regulation must contain the following information components—
(a)
process and invoice identifiers,
(b)
the invoice period,
(c)
seller information,
(d)
buyer information,
(e)
payee information,
(f)
seller’s tax representative information,
(g)
contract reference,
(h)
delivery details,
(i)
payment instructions,
(j)
allowance or charge information,
(k)
invoice line item information,
(l)
invoice totals, and
(m)
VAT breakdown.
(4)
This regulation is without prejudice to applicable law on data protection.
(5)
Subject to any provisions to the contrary in any enactments and without prejudice to the exemptions and restrictions set out in GDPR and the Data Protection Act 2018, personal data obtained for the purpose of electronic invoicing may be used only for that purpose or for purposes compatible with it.
(6)
This regulation is without prejudice to any provision made by or under Schedule 11 of the Value Added Tax Act 1994.
Subcontracting85.
(1)
In the procurement documents, the utility may ask the tenderer to indicate in its tender any share of the contract that the tenderer may intend to subcontract to third parties and information about any proposed subcontractors including their name and contact details.
(2)
Paragraph (1) is without prejudice to the liability of the main contractor under the contract.
(3)
Where paragraph (4) applies, the utility must require the main contractor to notify it at the latest when the performance of the contract commences, of the name, contact details and legal representatives of its subcontractors, involved in such works or services, in so far as known at the time.
(4)
This paragraph applies in the case of—
(a)
a works contract;
(b)
a F2service contract which includes services to be provided at a facility under the direct oversight of the utility.
(5)
The utility must require the main contractor to notify the utility of—
(a)
any changes to the information referred to in paragraph (3) during the course of the contract; and
(b)
the name, contact details and legal representatives of any new subcontractors which the contractor subsequently involves in such works or services.
(6)
Paragraphs (3) and (5) do not apply to subcontractors who provide only supplies.
(7)
Where necessary for the purposes of paragraph (9), the required information must be accompanied by ESPDs in respect of the subcontractors.
(8)
A utility may require a contractor to provide information of the kind referred to in paragraphs (3) and (5) in respect of any one or more of the following—
(a)
supply contracts or F3service contracts (other than those concerning services to be provided at the facilities under the direct oversight of the utility);
(b)
suppliers involved in works or F4service contracts;
(c)
subcontractors of the main contractor’s subcontractors or other contractors further down the subcontracting chain.
(9)
A utility may, in accordance with regulation 78(4) (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations), verify whether there are grounds for exclusion of subcontractors pursuant to regulation 58 of the Public Contracts (Scotland) Regulations.
(10)
The utility must require the economic operator to replace a subcontractor in respect of which the verification has shown that there are compulsory grounds for exclusion.
(11)
The utility may require the economic operator to replace a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.
Modification of contracts during their term86.
(1)
A contract and framework agreement may be modified without a new procurement—
(a)
where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses or options, provided that such clauses—
(i)
state the scope and nature of possible modifications or options as well as the conditions under which they may be used; and
(ii)
do not provide for modifications or options that would alter the overall nature of the contract or framework agreement;
(b)
to provide for additional works, supplies or services by the original contractor, irrespective of their value, that have become necessary and were not included in the initial procurement, where a change of contractor—
(i)
cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and
(ii)
would cause significant inconvenience or substantial duplication of costs for the utility;
(c)
where the need for modification has been brought about by circumstances which a diligent utility could not have foreseen and the modification does not alter the overall nature of the contract or framework agreement;
(d)
where a new contractor replaces one to which the utility had initially awarded the contract or framework as a consequence of—
(i)
an unequivocal review clause or option in conformity with sub-paragraph (a); or
(ii)
complete or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, by another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract or framework agreement and is not aimed at circumventing the application of this Part;
(e)
where the modifications, irrespective of their value, are not substantial (as defined in paragraph (7)); or
(f)
where paragraph (4) applies.
(2)
A utility which has modified a contract or framework agreement in either of the cases described in paragraph (1)(b) or (c) must send a notice to that effect for publication in accordance with regulation 69 (form and manner of sending notices for publication at EU level).
(3)
The notice referred to in paragraph (2) must contain the information set out in Annex XVI to the Utilities Contracts Directive.
(4)
This paragraph applies where the value of the modification is below both of the following values—
(a)
the relevant threshold mentioned in regulation 15 (thresholds); and
(b)
10% of the initial contract value for service and supply contracts or framework agreements and 15% of the initial contract value for works contracts or framework agreements,
provided that the modification does not alter the overall nature of the contract or framework agreement.
(5)
For the purposes of paragraph (4), where several successive modifications are made, the value must be the net cumulative value of the successive modifications.
(6)
For the purpose of the calculation of the values mentioned in paragraph (4)(b) the updated figure shall be the reference figure when the contract or framework agreement includes an indexation clause.
(7)
A modification of a contract or a framework agreement during its term must be considered substantial for the purpose of paragraph (1)(e) where one or more of the following conditions are met—
(a)
the modification renders the contract or the framework agreement materially different in character from the one initially concluded;
(b)
the modification introduces conditions which, had they been part of the initial procurement, would have—
(i)
allowed for the admission of candidates other than those initially selected;
(ii)
allowed for the acceptance of a tender other than that originally accepted; or
(iii)
attracted additional participants in the procurement;
(c)
the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement;
(d)
the modification extends the scope of the contract or framework agreement considerably;
(e)
a new contractor replaces one to which the utility had initially awarded the contract or framework agreement in cases other than those provided for in paragraph (1)(d).
(8)
A new procurement in accordance with these Regulations is required for modifications of the provisions of a works, supply or service contract or a framework agreement during its term other than those provided for in this regulation.
Termination of contracts87.
(1)
A utility must ensure that every works, supply or service contract or framework which the utility awards contains provisions enabling the utility to terminate the contract or framework where—
(a)
the contract or framework has been subject to a substantial modification which would have required a new procurement in accordance with regulation 86(8) (modification of contracts during their term);
(b)
the contractor has, at the time of contract award, been in one of the situations referred to in regulation 58(1) of the Public Contracts (Scotland) Regulations, including as a result of the application of regulation 58(2) of those Regulations, and should have been excluded from the procurement as a result of the application of rules and criteria referred to in regulation 78(3) (use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations) of these Regulations; or
(c)
the contract or framework should not have been awarded to the contractor in view of a serious infringement of the obligations under the Treaties and the Utilities Contracts Directive that has been declared by the Court of Justice of the European Union in a procedure under Article 258 of the TFEU.
(2)
Those provisions may address the basis on which the power is to be exercisable in those circumstances, for example by providing for notice of termination to be given and by addressing consequential matters that will or might arise from the termination.
(3)
To the extent that a contract or framework does not contain provisions enabling the utility to terminate the contract or framework on any of the grounds mentioned in paragraph (1), a power for the utility to do so on giving notice to the contractor shall be an implied term of that contract or framework.