Rejection of third country tenders - supply contractsE+W+N.I.
31.—(1) In this regulation—
“an offer of third country origin” means an offer to enter a supply contract under which more than 50% of the total value of the goods offered originate in States with which the [F1European Union] have not concluded, multilaterally or bilaterally, an agreement ensuring comparable and effective access for undertakings in member States to the markets of those States or in States to which the benefit of the provisions of the Utilities Directive has not been extended; and
“goods” includes software used in telecommunications network equipment.
(2) The origin of the goods shall be determined in accordance with Council Regulation (EC) No 2913/92 of 12 October 1992 establishing the Community Customs Code M1.
(3) Notwithstanding regulation 30, a utility need not accept an offer of third country origin.
(4) Notwithstanding regulation 30, where an offer of third country origin is equivalent to an offer which is not of third country origin a utility shall not accept the offer of third country origin unless not to accept that offer would oblige the utility to acquire—
(a)goods having technical characteristics different from those of existing goods; or
(b)an installation resulting in incompatibility, technical difficulties in operation and maintenance or disproportionate costs.
(5) In the case of a supply contract to be awarded on the basis of the offer which offers the lowest price, offers are equivalent for the purposes of paragraph (4) if their prices are to be treated as equivalent in accordance with paragraph (7).
(6) In the case of a supply contract to be awarded on the basis of the offer which is the most economically advantageous to the utility, offers are equivalent for the purposes of paragraph (4) if—
(a)their prices are to be treated as equivalent in accordance with paragraph (7); and
(b)disregarding any difference in price the offer which is not of third country origin is at least as economically advantageous to the utility as the offer of third country origin.
(7) The prices of offers are to be treated as equivalent for the purposes of paragraphs (5) and (6) if the price of the offer which is not of third country origin is the same as or is not more than 3% greater than the offer of third country origin.
Textual Amendments
F1Word in Regulations substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 3-6, 8-10
Marginal Citations
M1OJ No L 302, 19.10.92, p.1; Regulation as last amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 (OJ No L 117, 04.05.2005, p.13).