The Utilities Contracts Regulations 1996

PART III PROCEDURES LEADING TO THE AWARD OF A CONTRACT

The open, restricted and negotiated procedures

13.  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

14.—(1) Subject to paragraphs (2) and (3) below, a utility shall, at least once every 12 months, send to the Official Journal a notice, in a form substantially corresponding to that set out in Part A of Schedule 5 and containing the information therein specified, in respect of—

(a) the supply and services contracts which the utility expects to award during the period of 12 months beginning with the date of the notice and in respect of such contracts the notice shall be sub-divided to give that information separately for each product area of goods or each category of services specified in Part A of Schedule 4; and

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

(2) The obligation under paragraph (1) above shall apply only to—

(a) supply and Part A services contracts where, at the date of despatch of the notice, the total consideration which the utility expects to be payable under—

(i) supply contracts for the purchase or hire of goods falling within the same product area;

(ii) services contracts for the provision of services falling within the same category specified in Part A of Schedule 4,

equals or exceeds 750,000 ECU.

(b) works contracts whose estimated value at the date of despatch of the notice is not less than the relevant threshold specified in regulation 10(2),

(3) 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

15.—(1) Subject to regulation 16, 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 providers has been sent to the Official Journal in accordance with regulation 18(12) 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 5, in the case of a contract to be awarded using the open procedure,

(ii) Part C of Schedule 5, in the case of a contract to be awarded using the restricted procedure, and

(iii) Part D of Schedule 5, 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, works or services 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 providers to express their interest in writing,

(c) the utility sends to all providers who express such an interest detailed information on the contract concerned and before beginning the selection of providers 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 is sent in accordance with sub-paragraph (c) above.

(4) The requirement referred to in paragraph (2)(a)(ii) above is that the providers 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

16.—(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 and insofar as its award will not prejudice the competitive award of subsequent contracts which are, in particular, for the same purposes;

(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 urgency brought about by events unforeseeable by the utility the time limits specified in regulation 17(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 in 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 or services contract and the utility wants a person who has entered into a works or services contract with the utility to carry out additional works or provide additional services which were not included in the project initially considered or in the original work or services contract but which through unforeseen circumstances have become necessary and—

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

(ii) such works or services can be carried out or provided separately from those under the original contract but are strictly necessary to the later stages of the performance 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 contract with it following a call for competition which satisfies the requirement of regulation 15(1) 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 11 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;

(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; and

(l) in the case of service contracts, when the rules of a design contest require the contract to be awarded to the successful contestant or to one of the successful contestants, provided that all successful contestants are selected to negotiate the contract.

(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 10 above the utility took into account the value of the consideration which it expected to be payable for the new works.

Time Limits

17.—(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 14(1) 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 providers made in accordance with regulation 15(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, apart from when regulation 29(3) applies when it shall be not less than 15 days.

(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 negotiated procedure with a call for competition may be agreed between the utility and the providers invited to tender and shall be the same date for all providers or, in the absence of agreement as to the date, shall be fixed by the utility 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 provider 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 simultaneously and by the most rapid means of communication practicable to each of the providers 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 further 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 provider 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 to negotiate the contract.