The Utilities Contracts Regulations 1996

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement Council Directive 93/38/EEC (OJ No. L199, 9.8.93. p. 84) concerning the co-ordination of procedures for the award of supply, works and services contracts by certain entities operating in the water, energy, transport and telecommunications sectors. This Directive replaces Council Directive 90/531/EEC (OJ No. L297, 29.10.90 p.1) and the Regulations revoke the Utilities Supply and Works Contracts Regulations 1992 (S.I. 1992/3279) as amended which implemented the 1990 Directive. The principal change is to extend the provisions to services contracts.

The Regulations also implement Council Directive 92/13/EEC (OJ No. L76, 23.3.92, p. 14) concerning the co-ordination of the laws, regulations and administrative provisions relating to the application of Community rules to the procurement of entities operating in the water, energy, transport and telecommunications sector which was amended to apply to the 1993 Directive.

The Regulations also implement certain European Treaties with a number of other European states under which the Community provisions relating to public procurement have been extended: those States are Bulgaria, the Czech Republic, Hungary, Iceland, Lichtenstein, Norway, Poland, Romania and Slovakia.

The Regulations lay down provisions relating to the award of supply, works and services contracts by utilities for the purpose of carrying out activities in the water, energy, transport and telecommunications sectors. The utilities and the relevant activities are specified in regulation 3 and Schedule 1. Services contracts are divided into two categories: some (“Part A” services) are subject to all the provisions; others (“Part B” services) are subject only to a limited number of provisions relating principally to the technical specifications in the contract documents and information requirements (regulation 5). Schedule 4 specifies the two categories of services.

Other contracts are excluded from the Regulations. These exclusions are specified in regulation 6 (general exclusions), regulation 7 (exclusion for certain telecommunications contracts), regulation 8 (exclusion of services contracts awarded to affiliated undertakings), regulation 9 (exemption for certain energy contracts), regulation 10 (exclusion for contracts below thresholds).

The Regulations lay down requirements for technical specifications which are included in the contract documents (Part II), the procedures to be followed in awarding contracts (Part III), requirements for the qualification and selection of tenderers (Part IV) and requirements on the award of the contract (Part V).

Schedule 5 lays down the form of the notices for contracts which are required to be advertised in the Official Journal of the European Communities.

The Regulations also introduce provisions regulating the procedures for the holding of a design contest which may or may not be part of the procedure leading to the award of a services contract, (regulation 31).

Finally the Regulations provide remedies for any breach of the Regulations or of any obligations arising under the EC Treaties. Proceedings may be brought in the High Court in England, Wales and Northern Ireland and to the Court of Session in Scotland. The court is given power to grant appropriate interim and final relief and to award damages except that, where the contract in respect of which there has been an infringement has already been entered into, the court’s powers are restricted to awarding damages. There is also provision for disappointed tenderers to seek use of conciliation procedures under the auspices of the Commission (regulations 32 and 33).