The Utilities Supply and Works Contracts Regulations 1992

PART III PROCEDURES LEADING TO THE AWARD OF A CONTRACT

The Open, Restricted and Negotiated Procedures

12.  For the purposes of seeking offers in relation to a proposed contract a utility shall use the open, the restricted or the negotiated procedure.

Periodic indicative notices

13.—(1) Subject to paragraphs (2) and (3) below, a utility shall, at least once every12 months, send to the Official Journal a notice, in a form substantially corresponding to that set out in Part A of Schedule 4 and containing the information therein specified, in respect of—

(a) the supply contracts which the utility expects to award during the period of 12 months beginning with the date of the notice; and

(b) the works contracts which the utility expects to award.

(2) The obligation under paragraph (1)(a) above shall apply only to those supply contracts whose estimated value (within the meaning of regulation 9 above) at the date of despatch of the notice is not less than the relevant threshold specified in regulation 9(2) above and which are for the purchase or hire of goods of a type which the utility expects at the date of despatch of the notice to purchase or hire under supply contracts which have an estimated value (within the meaning of regulation 9(3), (9) and (14) above) which in aggregate for that type of goods is, or is more than, 750,000 ECU.

(3) The obligation under paragraph 1(b) above shall apply only to those works contracts whose estimated value at the date of despatch of the notice is not less than the relevant threshold specified in Regulation 9(2) above.

(4) A notice sent to the Official Journal in accordance with paragraph (1) above need not repeat information about contracts included in a previous periodic indicative notice, provided that the notice clearly states that it is an additional notice.

Call for competition

14.—(1) Subject to regulation 15, for the purposes of seeking offers in relation to a proposed contract a utility shall make a call for competition.

(2) The requirement under paragraph (1) above to make a call for competition shall be satisfied—

(a) in the case of a contract to be awarded using the restricted or negotiated procedure—

(i) if the intention to award the contract has been indicated in a periodic indicative notice and the requirements referred to in paragraph (3) below are satisfied in relation to the contract; or

(ii) if a notice indicating the existence of a qualification system for suppliers or contractors has been sent to the Official Journal in accordance with regulation 17(12) below and the requirement referred to in paragraph (4) below is satisfied; or

(b) in any case by sending to the Official Journal a contract notice in a form substantially corresponding to that set out in—

(i) Part B of Schedule 4, in the case of a contract to be awarded using the open procedure,

(ii) Part C of Schedule 4, in the case of a contract to be awarded using the restricted procedure, and

(iii) Part D of Schedule 4, in the case of a contract to be awarded using the negotiated procedure,

and containing the information specified in the relevant Part in respect of the contract.

(3) The requirements referred to in paragraph (2)(a)(i) above are that—

(a) the periodic indicative notice refers specifically to the goods or works which are to be the subject of the proposed contract,

(b) the notice states that offers are to be sought using the restricted or negotiated procedure without further publication of a notice calling for competition and invites suppliers or contractors to express their interest in writing,

(c) the utility sends to all suppliers or contractors who express such an interest detailed information on the contract concerned and before beginning the selection of suppliers or contractors invites them to confirm their wish to be selected to tender for or to negotiate the contract, and

(d) the notice was not published more than 12 months before the date on which the invitation sent in accordance with sub-paragraph (c) above is sent.

(4) The requirement referred to in paragraph (2)(a)(ii) above is that the suppliers or contractors selected to tender for or to negotiate the contract are selected from the candidates who qualify in accordance with the system.

Award without a call for competition

15.—(1) A utility may seek offers in relation to a proposed contract without a call for competition in the following circumstances—

(a) in the absence of tenders or suitable tenders in response to a procedure with a call for competition but only if the original terms of the proposed contract have not been substantially altered;

(b) when the contract is to be awarded purely for the purposes of research, experiment, study or development but not where it has the purpose of ensuring profit or of recovering research and development costs;

(c) when for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may only be performed by a particular person;

(d) when (but only if it is strictly necessary) for reasons of extreme urgencybrought about by events unforeseeable by the utility, the time limits specified inregulation 16(1) to (4) below cannot be met;

(e) when the contract to be awarded is a supply contract and the goods to be purchased or hired under the contract are required by the utility as a partial replacement for, or addition to, existing goods or an installation when to obtain the goods from a person other than the person who supplied the existing goods or the installation would oblige the utility to acquire goods having different technical characteristics which would result in—

(i) incompatibility between the existing goods or installation and the goods to be purchased or hired under the contract, or

(ii) disproportionate technical difficulties in the operation and maintenance of the goods or installation;

(f) when the contract to be awarded is a works contract and the utility wants a person who has entered into a works contract with the utility to carry out additional works which through unforeseen circumstances were not included in the project initially considered or in the original works contract and—

(i) such works cannot for technical or economic reasons be carried out separately from the works carried out under the original works contract without great inconvenience to the utility, or

(ii) such works can be carried out separately from the works carried out under the original works contract but are strictly necessary to the later stages of that contract;

(g) subject to paragraph (2) below when the contract to be awarded is a works contract and the utility wishes a person who has entered into a works contractwith it following a call for competition which satisfies the requirement ofregulation 14(1) above to carry out new works which are a repetition of works carried out under the original contract and which are in accordance with the project for the purpose of which the first contract was entered into;

(h) in respect of a supply contract for the purchase or hire of goods quoted and purchased on a commodity market;

(i) when the contract to be awarded is to be awarded under a framework agreement which has been awarded in accordance with these Regulations and to which the provisions of regulation 10 apply;

(j) when the contract to be awarded is a supply contract, to take advantage of a particularly advantageous bargain available for a very short period of time at a price considerably lower than normal market prices; and

(k) when the contract to be awarded is a supply contract, to take advantage of particularly advantageous conditions for the purchase of goods in a closing down sale or in a sale brought about by insolvency.

(2) A utility shall not seek offers without a call for competition pursuant to paragraph (1)(g) above unless—

(a) the original contract was awarded after a call for competition,

(b) when the utility invited contractors to tender for or to negotiate the contract it gave notice that a works contract for new works which would be a repetition of the works carried out under the original contract might be awarded without a call for competition pursuant to paragraph (1)(g) above, and

(c) in determining the estimated value of the original contract for the purposes of regulation 9 above the utility took into account the value of the consideration which it expected to pay for the new works.

Time Limits

16.—(1) Subject to paragraph (2) below, the date which a utility using the open procedure shall fix as the last date for the receipt by it of tenders made in response to the contract notice shall be specified in the notice and shall be not less than 52 days from the date of despatch of the notice.

(2) When the utility has published a periodic indicative notice in accordance with regulation 13(1) above it may substitute for the period of not less than 52 days specified in paragraph (1) above a period of not less than 36 days.

(3) The date which a utility using the restricted or the negotiated procedure with a call for competition shall fix as the last date for the receipt by it of requests to be selected to tender for or to negotiate the contract shall be specified in the contract notice or, where the call for competition is made by means of a periodic indicative notice, in the invitation to suppliers or contractors made in accordance with regulation 14(3)(c), and shall in general be at least five weeks from the date of the despatch of the notice or invitation and shall in any case be not less than 22 days from that date.

(4) The date which shall be the last date for the receipt of tenders made in response to an invitation to tender by a utility using the restricted or the negiotiated procedure with a call for competition shall be agreed between the utility and the suppliers or contractors invited to tender and shall be the same date for all supplies or contractors or, in the absence of agreement to this date, shall be fixed by the utlity and shall be as a general rule at least 3 weeks and in any event not less than 10 days from the date of despatch of the invitation to tender.

(5) In fixing the time limits referred to in paragraphs (1), (2) and (4) above a utility shall take into account the time required to allow for any examination of voluminous documentation such as lengthy technical specifications, or any inspection of the site or documents relating to the contract documents, which is necessary.

(6) A utility using the open procedure shall send the contract documents as a general rule within 6 days of the receipt of a request from any supplier or contractor provided that the documents are requested in good time and any fee specified in the contract notice has accompanied the request.

(7) A utility using the restricted or the negotiated procedure with or without a call for competition shall send invitations in writing and simultaneously to each of the suppliers or contractors selected to tender for or to negotiate the contract and the invitation shall be accompanied by the contract documents.

(8) The following information shall be included in the invitation—

(a) the address to which requests for any further information should be sent, the final date for making such a request and the amount and method of payment of any fee which may be charged for supplying that information;

(b) the final date for the receipt of tenders, the address to which they must be sent and the language or languages in which they must be drawn up;

(c) a reference to any contract notice;

(d) an indication of the information to be included with the tender;

(e) the criteria for the award of the contract if this information was not specified in the contract notice; and

(f) any other special contract condition.

(9) A utility using the open, the restricted or the negotiated procedure with or without a call for competition shall provide not less than 6 days before the final date for the receipt of tenders such further information relating to the contract documents as may reasonably be requested by a supplier or contractor provided the information is requested in good time and any fee specified in the contract notice or in the invitation to tender has accompanied the request.

(10) A utility shall not refuse to consider an application to be invited to tender for or to negotiate the contract if it is made by letter, telegram, telex, facsimile, telephone or any electronic means provided that, in the last 5 cases, it is confirmed by letter despatched before the date fixed by the utility as the last date for the receipt of applications to be invited to tender for or negotiate the contract.