SCHEDULE 1APPLICATION OF THE ACT AND RELATED PROVISIONS

Regulation 3

Purposes of the Schedule1

1

The provisions of—

a

the Act mentioned in paragraphs F91A, 2, 3(1) and (3), 5(2) to (8) and 6 to 16,

b

the Enterprise Act 2002 M1 mentioned in paragraph 7(1), and

c

the Water Industry (Special Administration) Rules 2009 M2 mentioned in paragraph 7(7),

apply for the purposes of the regulation of specified infrastructure projects, with the modifications (if any) specified in those paragraphs.

2

The provisions having effect under paragraphs 3(2), 4 and 5(1) as if inserted into the Act apply for the purposes mentioned in sub-paragraph (1).

3

In this Schedule, references to sections are to sections in the Act, unless otherwise stated.

F8Strategic priorities and objectives1A

Section 2A (strategic priorities and objectives: England) applies without modification.

Appointment of relevant undertakers and transitional provisions with respect to replacement project licences2

Section 6 M3 (appointment of relevant undertakers) applies as if, in subsection (5A) (prohibition on relevant undertaker being a F10water supply licensee or sewerage licensee), after F11“sewerage licensee”, there were inserted “ or a licensed infrastructure provider ”.

Licensing of infrastructure providers3

1

The Chapter heading preceding section 17A M4F12(water supply licences) applies as if, at the end, there were inserted “and licensed infrastructure providers”.

2

The following has effect as if it were inserted after section 17F (procedure for granting water supply licences)—

17FALicensing of infrastructure providers

1

The Authority may grant to a company a licence (“a project licence”) in connection with the undertaking of a particular infrastructure project specified under regulation 4(1) of the Regulations.

2

Before granting a project licence, the Authority must consult—

a

the incumbent undertaker;

b

the Secretary of State;

c

the relevant quality regulator; and

d

any other person the Authority thinks is appropriate.

3

A project licence must not be granted to a company unless—

a

the company has been designated under regulation 8(1) of the Regulations as the infrastructure provider for the infrastructure project to which the licence relates; and

b

the company is not a relevant undertaker.

4

A project licence must—

a

be in writing; and

b

unless revoked or suspended in accordance with any condition contained in it, continue in force for such period as may be specified in or determined under the licence.

5

References in this Act to a project licence are to a licence granted under subsection (1).

6

In this Chapter “the relevant quality regulator” means—

a

where a project licence relates to the provision of a system of water supply or the securing of supplies of water, the Chief Inspector of Drinking Water; and

b

where a project licence relates to the provision of a system of sewers or the provision of means for emptying, or dealing effectually with the contents of, sewers—

i

in England, the Environment Agency; and

ii

in Wales, the Natural Resources Body for Wales M5.

17FBTransitional provision with respect to replacement project licences

1

Schedule 2 to this Act shall have effect for enabling provision to be made with respect to cases in which it is proposed that a company be granted a project licence under this Chapter in order that it may replace another company in carrying on functions formerly carried on by that company.

2

Subsections (3) and (4) below apply where one company (“the new licensee”) has been granted a project licence so that it may replace another company in carrying on functions that that company formerly carried on in its capacity as a licensed infrastructure provider, but the project licence has yet to come into force.

3

The following provisions of this Act shall apply in relation to the new licensee as if the project licence had come into force—

a

sections 18 to 24 and Schedule 3;

b

sections 158, 159 and 161;

c

sections 179 and 180 and Schedule 12;

d

sections 181 to 183 and Schedule 13; and

e

sections 186, 187, 190, 192, 199, 200, 202, 203 and 208.

4

Such of the conditions to be imposed on the new licensee under section 17HA below as the Authority may specify in a written notice given by it to the new licensee shall have effect, in relation to the operation of any provision mentioned in subsection (3) above before the project licence comes into force, as if the project licence had come into force.

3

M6Schedule 2 (transitional provision on termination of appointments) applies as if—

a

in the title, after “appointments”, there were inserted “ and licences ”; and

b

in paragraph 1 (cases where Schedule applies)—

i

in sub-paragraph (1), for “(3A)”, there were substituted “ (3B) ”;

ii

in sub-paragraph (3A)—

aa

in paragraph (a), after “qualifying F13sewerage licensee”, there were inserted “ or a licensed infrastructure provider ”; and

F14bb

for paragraph (b), there were substituted—

b

it is proposed that on and after the relevant date another company (“the transferee”) should carry on—

i

where the transferor is a qualifying water supply licensee, activities relating to the introduction or introductions of water mentioned in section 23(6)(b) of this Act which were carried on by the transferor until that date;

ii

where the transferor is a qualifying sewerage licensee, activities relating to the removal or removals of matter mentioned in section 23(9) of this Act which were carried on by the transferor until that date; or

iii

where the transferor is a licensed infrastructure provider, functions formerly carried on by the transferor in its capacity as a licensed infrastructure provider

iii

after sub-paragraph (3A), there were inserted—

3B

The fourth case in which this Schedule applies is where the Authority is proposing to grant a project licence to a company (“the transferee”) to carry on activities relating to functions formerly carried on by another company (“the transferor”) in its capacity as a licensed infrastructure provider.

iv

in sub-paragraph (4)—

F15aa

in the definition of “other relevant companies”—

i

in paragraph (a), after “this Act” there were inserted “or, as the case may be, the functions to which its project licence relates;

ii

in paragraph (b), after “this Act” there were inserted “or, as the case may be, the functions to which its project licence relates”

bb

in the definition of “the relevant date”, after paragraph (b), there were inserted—

c

where this Schedule applies by virtue of sub-paragraph (3B) above, the coming into force of the project licence mentioned in that sub-paragraph; and

cc

in the definition of “transferor” and “transferee”, after “sub-paragraph (3A) above”, there were inserted “ or (3B) above (as the case may be) ”;

c

in paragraph 2 (making and modification of transfer schemes)—

i

in sub-paragraph (7A)—

aa

after “paragraph 1(3A)”, there were inserted “ or (3B) ”; and

bb

in paragraph (b), after “in consequence of its licence”, there were inserted “ or, in relation to a company which is a licensed infrastructure provider, a reference to activities regulated by its licence and any statutory functions conferred or imposed on it in consequence of its licence ”; and

ii

for sub-paragraph (8) (offence), there were substituted—

8

The duties of companies under sub-paragraph (7) above are enforceable under section 18 above by the Secretary of State or the Authority.

d

in paragraph 3 (transfers by scheme)—

i

in sub-paragraph (4)(d), after “enactments” there were inserted “ (including any designation made under regulation 8(1) of the Regulations) ”;

ii

in sub-paragraph (7), after “paragraph 1(3A)”, there were inserted “ or (3B) ”;

e

paragraph 4A (exclusion of transfer of licence) were repealed;

f

in paragraph 5 (supplemental provisions of schemes), in sub-paragraph (3) after “paragraph 1(3A)”, there were inserted “ or (3B) ”;

g

in paragraph 6 (duties of existing appointee after the scheme comes into force), in sub-paragraph (9), after “paragraph 1(3A)”, there were inserted “ or (3B) ”; and

h

paragraph 7 (power to make an order for further transitional provision and local statutory provisions) were repealed.

Conditions of project licences4

The following has effect as if it were inserted after section 17H (standard conditions of water supply licences)—

17HAConditions of project licences

1

A project licence may include—

a

such conditions as appear to the Authority to be requisite or expedient having regard to the duties imposed on it by Part 1 of this Act; and

b

conditions requiring the rendering to the Secretary of State of a payment on the grant of the project licence, or payments while the licence is in force, or both, of such amount or amounts as may be determined under the conditions.

2

Conditions included in a project licence may—

a

require the holder of the licence to comply with any direction given by a specified relevant person as to specified matters or matters which are of a specified description;

b

require the holder of the licence to do or not do specified things or things which are of a specified description, except in so far as a specified relevant person consents to the holder's not doing or doing them; F1...

c

provide for the reference to and determination by a specified relevant person of F2such questions arising under or in connection with the licence and of such other matters as are specified or are of a specified description; and

F3d

provide for the reference by the Authority to the CMA, and the determination by the CMA, of such questions arising under or in connection with the licence and of such other matters, including disputes as to determinations by the Authority, as are specified or are of a specified description.

3

For the purposes of subsection (2)—

a

the following are relevant persons—

i

the Secretary of State;

ii

the Authority; and

iii

the relevant quality regulators;

b

“specified” means specified in the licence in question.

4

Conditions included in a project licence may contain provision for the conditions to have effect, cease to have effect or be modified at such times, and in such manner and in such circumstances, as may be specified in or determined in accordance with the conditions.

5

Any such condition as is referred to in subsection (4) has effect in addition to the provision made by this Chapter with respect to the modification of the conditions of a project licence.

F46

Where any question or other matter falls to be determined by the CMA in pursuance of a provision contained in a project licence held by a licensed infrastructure provider—

a

it is the duty of the Authority, on being required to do so by that licensed infrastructure provider, to refer that question or matter to the CMA; and

b

it is the duty of the CMA to determine any question or other matter referred by virtue of paragraph (a) in accordance with the principles which apply, by virtue of Part 1 of this Act, in relation to determinations under this Chapter by the Authority.

7

For the purposes of subsection (6), where—

a

the question or matter referred to the CMA concerns the review of a price control imposed on the licensed infrastructure provider; and

b

the CMA is to decide to what extent it is reasonable to take into account in its determination costs incurred or borne by the licensed infrastructure provider in connection with the reference,

the CMA shall also have regard to the extent to which, in its view, its determination is likely to support the licensed infrastructure provider’s (rather than the Authority’s) claims in relation to the question or matter referred to it.

8

Section 17K(5) and (7), and sections 17L and 17M, apply to references to the CMA under this section as they apply to references under section 17K(1).

9

A report of the CMA on a reference under this section—

a

shall be made to the Authority; and

b

shall include definite conclusions on the questions or other matters comprised in the reference, together with such an account of the CMA’s reasons for those conclusions as, in the opinion of the CMA, is expedient for facilitating a proper understanding of those questions or other matters and of the CMA’s conclusions.

10

Section 17N(10), (13) and (14) applies to a report of the CMA on a reference under this section as it applies to a report on a reference under section 17K(1).

11

The functions of the CMA with respect to a reference under this section are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (including functions relating to the making of modifications following a report on a reference, and functions under sections 109 to 115 of the Enterprise Act 2002, as applied by subsection (8) read with section 17M).

Modification of project licences5

1

The following has effect as if it were inserted after section 17I (modification of F16licences by agreement)—

17IAModification of project licences by agreement

1

Subject to the following provisions of this section, the Authority may modify the conditions of a project licence.

2

The Authority may not make any modifications under this section unless the licence holder has consented to the modifications.

3

Before making modifications under this section, the Authority must give notice—

a

stating that it proposes to make the modifications and setting out their effect,

b

stating the reasons why it proposes to make the modifications, and

c

specifying the period (not being less than twenty-eight days from the date of the publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and must consider any representations or objections which are duly made and not withdrawn.

4

A notice under subsection (3) must be given—

a

by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

b

by serving a copy of the notice on—

i

the licence holder;

ii

the Secretary of State; and

iii

the relevant quality regulator.

5

If, within the period specified in the notice under subsection (3), the Secretary of State directs the Authority not to make the modification, the Authority must comply with the direction.

2

Section 17K F17(modification references to competition authority) applies as if—

F18a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

in subsection (1) (reference of a particular licence), in paragraph (a)(i), F19after “a particular water supply or sewerage licence” there were inserted “or project licence granted under this Chapter”; and

c

in subsection (5)(b) (persons to be served with copy of reference or variation)—

i

at the beginning of each of sub-paragraphs (ii)F20...and (v), there were inserted “in a case relating to one or more water supply licences,”; and

ii

after sub-paragraph (iii), there were inserted—

iiia

in a case relating to a project licence, the incumbent undertaker;

iiib

in a case relating to a project licence, the relevant quality regulator;

3

Sections 17L (references under section 17K: time limits) and 17M (references under section 17K: powers of investigation) apply without modification.

4

Section 17N (F21...reports on modification references) applies as if—

F22a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

in subsection (10)(a) (persons to be served with report relating to a particular licence)—

i

at the beginning of F23sub-paragraph (ii), there were inserted “if the report relates to a water supply licence,”; and

ii

after sub-paragraph (ii), there were inserted—

iia

if the report relates to a project licence, the incumbent undertaker;

iib

if the report relates to a project licence, the relevant quality regulator;

c

in subsection (12) (meaning of “relevant time”)—

i

in paragraph (a), after “Secretary of State”, there were inserted “ or, in the case of a report relating to one or more water supply licences, the Secretary of State ”; and

ii

in paragraph (b), after “copies”, there were inserted “ of a report relating to one or more water supply licences ”.

5

Section 17O F24(modification of licences following report) applies as if—

F25a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

in subsection (5)(c) (persons to be served with copy of notice of Authority's proposed modifications)—

i

at the beginning of each of sub-paragraphs (i)F26... and (iv), there were inserted “if the notice relates to one or more water supply licences,”; and

ii

after sub-paragraph (ii), there were inserted—

iia

if the notice relates to a project licence, the incumbent undertaker;

iib

if the notice relates to a project licence, the relevant quality regulator;

6

Section 17P F27(power of veto following report) applies as if—

F28a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

in subsection (7)(b) (persons to be served with copy of notice of F5CMA’s proposed modifications)—

i

at the beginning of each of sub-paragraphs (iii)F29...and (vi), there were inserted “if the notice relates to one or more water supply licences,”; and

ii

after sub-paragraph (iv), there were inserted—

iva

if the notice relates to a project licence, the incumbent undertaker;

ivb

if the notice relates to a project licence, the relevant quality regulator;

7

Section 17Q (section 17P: supplementary) applies without modification.

8

Section 17R F30(modification by order under other enactments) applies as if—

F31a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

in subsections (1)(a) and (2)(a)(i) and (ii) and (b), for “or F32sewerage licence”, in each place it occurs, there were substituted “ , F32sewerage licence or project licence ”.

Enforcement6

1

Section 18 (orders for securing compliance with certain provisions) applies as if, in subsection (1A)(b) (power to make final enforcement order where F33water supply licensee or sewerage licensee is causing or contributing to contravention by relevant undertaker), in sub-paragraph (i), after “this Part”, there were inserted “ or another F34person holding a licence under Chapter 1A of this Part ”.

2

Sections 19 M7 (exceptions to the duty to enforce), 20 M8 (procedure for enforcement orders), 21 (validity of enforcement orders) and 22 M9 (effect of enforcement order) apply without modification.

3

Section 22A M10 (penalties) applies as if—

a

in subsection (1)(b) (power to impose financial penalties on those licensed under Chapter 1A of Part 2 in relation to contraventions of appointment or licence conditions), in sub-paragraph (ii), after “the appointment”, there were inserted “ or by another F34person holding a licence under Chapter 1A of this Part of any condition of that licence ”; and

b

in subsection (2)(b) (power to impose financial penalties on those licensed under Chapter 1A of Part 2 in relation to contraventions of enforceable statutory or other requirements), in sub-paragraph (ii), after “Part” there were inserted “ , or by another F34person holding a licence under Chapter 1A of this Part, ”.

4

Sections 22B (statement of policy with respect to penalties), 22C (time limits on financial penalties), 22D (interest and payments of instalments), 22E (appeals) and 22F (recovery of penalties) apply without modification.

Special administration7

F621

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Section 23 M11 (meaning and effect of special administration order) applies as if—

a

in subsection (1) (meaning of special administration order), after “qualifying F35water supply licensee”, there were inserted “ or a licensed infrastructure provider ”;

b

after subsection (2A) (purposes of a special administration order for qualifying F36water supply licensees), there were inserted—

2AA

The purposes of a special administration order made in relation to any company which is a licensed infrastructure provider shall be—

a

the transfer to another company or companies, as a going concern, of so much of the company's undertaking as it is necessary to transfer in order to ensure that its functions may be properly carried out; and

b

the carrying out of those functions pending the making of the transfer.

c

in subsection (4) (application of Schedule 2 to the Act)—

i

at the end of paragraph (a), “or” were repealed; and

ii

after paragraph (a), there were inserted—

aa

a company carries on activities relating to the functions formerly carried on by a licensed infrastructure provider; or

3

Section 24 M12 (special administration orders made on special petitions) applies as if—

a

in subsection (1) (applications for special administration orders made in relation to relevant undertakers), after “this Part”, there were inserted “ or is a licensed infrastructure provider ”;

b

in subsection (2) (grounds for making applications for special administration orders)—

i

in paragraph (bb) (qualifying F35water supply licensee causing contravention of a principal duty of a water undertaker)—

aa

in the words preceding sub-paragraph (i), after “qualifying F35water supply licensee”, there were inserted “ or a licensed infrastructure provider ”; and

bb

in sub-paragraph (i), for “water undertaker”, there were substituted “ relevant undertaker ”; and

ii

in paragraph (d) (petition by the Secretary of State following company inspector's report), after “qualifying F35water supply licensee”, there were inserted “ or a licensed infrastructure provider ”; and

c

in subsection (7) (meaning of principal duty), in paragraph (b), after “qualifying F35water supply licensee”, there were inserted “ or a licensed infrastructure provider ”.

F614

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Section 25 M13 (power to make special administration order on winding-up petition) applies as if, after “qualifying F35water supply licensee”, in each place it occurs, there were inserted “ or a licensed infrastructure provider ”.

6

Section 26 M14 (restrictions on voluntary winding-up and insolvency proceedings) applies as if, after “qualifying F35water supply licensee” there were inserted “ or a licensed infrastructure provider ”.

7

The provisions of the Water Industry (Special Administration) Rules 2009 apply as if—

a

in rule 3 (definitions and interpretation), in paragraph (1)—

i

following definition were inserted at the appropriate place—

“infrastructure” in relation to a licensed infrastructure provider (within the meaning of the Water Industry Act 1991) has the meaning given in the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013;

ii

in the definition of “water company” after “qualifying F35water supply licensee”, there were inserted “ or a licensed infrastructure provider ”;

b

in rule 8 (contents of affidavit), in paragraph (1)(a), after “qualifying F35water supply licensee”, there were inserted “ or a licensed infrastructure provider ”;

c

in rule 11 (service of petition), in paragraph (2) (persons who must be served)—

i

in sub-paragraph (j) after “the Welsh Ministers” there were inserted “ (where any part of the infrastructure in question is or is to be in Wales), ”;

ii

sub-paragraph (k) were omitted; and

iii

in sub-paragraph (l), after “the Welsh Ministers” there were inserted “ (where any part of the infrastructure in question is or is to be in Wales) ”;

d

in rule 17 (notice and advertisement of special administration order), in paragraph (4), “, the Welsh Ministers” were omitted;

e

in rule 18 (notice of discharge of special administration order), after “the Welsh Ministers” there were inserted “ (where any part of the infrastructure in question is or is to be in Wales) ”;

f

in rule 23 (resignation of special administrator), in paragraph (3)(a), “or the Welsh Ministers, as appropriate” were omitted;

g

in rule 24 (special administrator's death in office), in paragraph (2)(a), “or the Welsh Ministers, as appropriate” were omitted;

h

in rule 25 (order filling vacancy), in sub-paragraph (c), “or the Welsh Ministers, as appropriate” were omitted;

i

in rule 35 (statement if special administration order to be discharged before statement of proposals), “, the Welsh Ministers” were omitted;

j

in rule 65 (right of inspection of proxies), in paragraph (1)(e), after “the Welsh Ministers” there were inserted “ (where any part of the infrastructure in question is or is to be in Wales) ”; and

k

in rule 82 (certain persons' right to inspect the court file), in paragraph (1)(d) after “the Welsh Ministers” there were inserted “ (where any part of the infrastructure in question is or is to be in Wales) ”.

Duties imposed on the Authority in relation to the protection of customers8

M15Section 27 (general duty of the Authority to keep matters under review) applies as if—

a

in subsection (1) (duty to keep matters under review), in paragraph (b)—

i

after F37“sewerage licensees”, there were inserted “ or licensed infrastructure providers ”; and

ii

after “authorised”, there were inserted “ or regulated ”;

b

in subsection (2) (duty of the Authority to collect information), in paragraph (aa), after “authorised”, there were inserted “ or regulated ”; and

c

in subsection (4) (duty to give advice and assistance to the Secretary of State and the F6CMA), in paragraph (c)—

i

after “authorised”, there were inserted “ or regulated ”; and

F38ii

after “(see sections 17A and 17BA)” there were inserted “or project licences”

Duties imposed on infrastructure providers in relation to the protection of consumers9

Section 35A M16 (remuneration and standards of performance), applies as if—

a

in subsection (1) (application of the section), after “this Part”, there were inserted “ or any licensed infrastructure provider ”; and

b

in subsection (10) (definitions), in the definition of “standards of performance”, in paragraph (a), after “this Part”, there were inserted “ or any conditions of the company's project licence ”.

Annotations:
Marginal Citations
M16

Section 35A was inserted by section 50 of the Water Act 2003.

General duties of relevant undertakers10

1

Section 37 (general duty to maintain a water supply system) applies as if—

a

in subsection (1)(b), for “the water undertaker's water mains” there were substituted “ such mains ”; and

b

after subsection (1) there were inserted—

1A

For the purposes of subsection (1), “main” means a water main or other pipe which is owned by a licensed infrastructure provider.

2

Section 94 M17 (general duty to provide a sewerage system) applies as if—

a

in subsection (1)—

i

in the words before paragraph (a), after “sewerage undertaker” there were inserted “ to ensure that all necessary arrangements are made ”; and

ii

in paragraph (a), “public” were repealed; and

b

after subsection (1) there were inserted—

1A

For the purposes of subsection (1), “sewer” means a public sewer or a sewer which is owned by a licensed infrastructure provider.

Annotations:
Marginal Citations
M17

Section 94 was amended by sections 88 and 97 of the Water Act 2003, although the provisions of section 88 are not yet in force.

Charges11

1

Section 142 M18 (powers of undertakers to charge) applies as if—

a

in the title, after “undertakers”, there were inserted “ and licensed infrastructure providers ”;

b

in subsection (1) (powers of undertakers to fix and demand charges)—

i

in the words before paragraph (a), after “relevant undertaker”, there were inserted “ and every licensed infrastructure provider ”;

ii

in paragraph (b), after “undertaker”, there were inserted “ or the licensed infrastructure provider (as the case may be) ”; and

c

in subsection (4) (matters etc. by reference to which charges may be fixed)—

i

after “a relevant undertaker”, there were inserted “ or licensed infrastructure provider ”; and

ii

after “the undertaker”, there were inserted “ or the licensed infrastructure provider (as the case may be) ”; and

d

in subsection (6) (power of a relevant undertaker to fix charges otherwise than by virtue of Chapter 1 of Part 5 of the Act), after “a relevant undertaker”, there were inserted “ or licensed infrastructure provider ”.

2

Section 143 M19 (charges schemes) applies as if—

a

in subsection (1) (power of a relevant undertaker to make a charges scheme)—

i

after “A relevant undertaker”, there were inserted “ or a licensed infrastructure provider ”; and

ii

in paragraph (a), after “the undertaker”, there were inserted “ or the licensed infrastructure provider (as the case may be) ”;

b

in subsection (5) (power of a relevant undertaker to enter into agreements for payment of charges), in paragraph (a)—

i

after “a relevant undertaker”, there were inserted “ or licensed infrastructure provider ”; and

ii

after “the undertaker”, there were inserted “ or the licensed infrastructure provider (as the case may be) ”; F42...

F41ba

in subsection (6) (power of Authority to direct in relation to compliance of a charges scheme)—

i

in the words before paragraph (a), after “relevant undertaker’s”, there were inserted “or a licensed infrastructure provider’s”;

ii

in the words after paragraph (d), after “the undertaker”, there were inserted “or the licensed infrastructure provider”;

bb

in subsection (6B) (consultation with the Council about a charges scheme), after “relevant undertaker”, there were inserted “or a licensed infrastructure provider”;

bc

in subsection (6C) (power of Authority to direct in relation to compliance of a charges scheme with rules), after “relevant undertaker”, there were inserted “or a licensed infrastructure provider”;

bd

in subsection (6D) (duty to comply with a direction), after “relevant undertaker”, there were inserted “or a licensed infrastructure provider”;

be

after subsection (6D), there were inserted—

6E

Rules (and revised rules) issued by the Authority under this section in relation to relevant undertakers have effect as if they were issued in relation to licensed infrastructure providers and apply to licensed infrastructure providers as they apply to relevant undertakers, unless otherwise stated.

F43c

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F392A

Section 143B (rules about charges schemes) applies as if—

a

in subsection (7), after “relevant undertakers”, there were inserted “or licensed infrastructure providers”;

b

after subsection (10), there were inserted—

11

Rules (and revised rules) issued by the Authority under this section in relation to relevant undertakers have effect as if they were issued in relation to licensed infrastructure providers and apply to licensed infrastructure providers as they apply to undertakers, unless otherwise stated.”

2B

Section 143C (rules under section 143B: procedure) applies as if in subsection (6)(a), after “England”, there were inserted “or licensed infrastructure providers”.

2C

Section 143D (rules under section 143B: minor or urgent revisions) applies without modification.

2D

Section 143E (rules under section 143B: guidance) applies as if in subsection (7)(a), after “England”, there were inserted “or licensed infrastructure providers;”

3

Section 144 (liability of occupiers etc for charges) applies as if—

a

after subsection (1) (liability of occupiers), there were inserted—

1A

Subject to the following provisions of this section, a licensed infrastructure provider shall be treated for the purposes of this Chapter as providing services to—

a

the occupiers for the time being of any premises which—

i

are supplied with water, either directly or indirectly, by infrastructure which is owned or operated by the licensed infrastructure provider;

ii

are drained by a sewer or drain connecting, either directly or indirectly, with infrastructure which is owned or operated by the licensed infrastructure provider; or

iii

are premises the occupiers of which have, in respect of the premises, the benefit of facilities which drain to a sewer or drain so connecting;

b

any relevant undertaker or F44water supply licensee or sewerage licensee which—

i

has an agreement with the licensed infrastructure provider for the supply of water, sewerage services or works; or

ii

has the use of any infrastructure which is owned or operated by the licensed infrastructure provider;

and references in this Chapter to services provided by a licensed infrastructure provider in the course of carrying out its functions are to be read accordingly.

1B

Subsection (1A)(a) does not apply to the extent that provision to the contrary is made by any agreement to which the licensed infrastructure provider is a party.

b

in subsection (2) (liability of former occupiers where charges fixed by reference to volume), after “a relevant undertaker”, there were inserted “ or licensed infrastructure provider ”;

c

in subsection (3) (circumstances in which former occupiers may be made liable for charges)—

i

after “any relevant undertaker”, there were inserted “or licensed infrastructure provider; and

ii

in paragraph (a), after “the undertaker”, there were inserted “ or the licensed infrastructure provider (as the case may be) ”;

d

in subsection (4) (meaning of “the first relevant day”)—

i

after “a relevant undertaker”, there were inserted “ or licensed infrastructure provider ”; and

ii

in paragraphs (a) and (c), after “the undertaker”, in each place it occurs, there were inserted “ or the licensed infrastructure provider (as the case may be) ”; and

e

in subsection (5), after “water to those premises”, there were inserted “ , or liable to any licensed infrastructure provider for any charges in respect of any services provided by that licensed infrastructure provider to those premises, ”.

F403A

Section 144ZE (general guidance on charges) applies as if—

a

in subsection (13)(a), after “England”, there were inserted “or licensed infrastructure providers”;

b

after subsection (13), there were inserted—

14

Guidance (and revised guidance) issued by the Secretary of State under this section which applies to the Authority in relation to relevant undertakers whose areas are wholly or mainly in England has effect as if it was issued in relation to licensed infrastructure providers and applies to licensed infrastructure providers as it applies to the Authority in relation to relevant undertakers whose areas are wholly or mainly in England, unless otherwise stated.

3B

Section 144ZF (guidance under section 144ZE: procedure) applies without modification.

4

Section 144A M20 (right of consumers to elect for charging by reference to volume) applies as if—

a

in subsection (5) (right of consumer to revoke a measured charges notice)—

i

the “and” following paragraph (a) were repealed; and

ii

paragraph (b) were repealed;

b

for subsection (9) (duty of sewerage undertaker to fix charges by reference to volume), there is substituted—

9

If and so long as a water undertaker is obliged under subsection (2) above to fix charges for the supply of water in respect of any premises by reference to the volume of water supplied—

a

a sewerage undertaker is under a corresponding obligation to fix charges in respect of foul water drainage provided by the sewerage undertaker in respect of those premises by reference to that volume; and

b

a licensed infrastructure provider is under a corresponding obligation to fix charges in respect of foul water drainage provided by the licensed infrastructure provider in respect of those premises by reference to that volume.

c

in subsection (10) (duty of sewerage undertaker to fix charges without reference to volume) for “a sewerage undertaker is”, there were substituted “ a sewerage undertaker and a licensed infrastructure provider are ”.

5

Section 150B M21 (meaning of “consumer” in Chapter 1), applies as if, after paragraph (a), there were inserted—

aa

in relation to the provision of services by a licensed infrastructure provider in respect of any premises, means a person who is for the time being the person on whom liability to pay charges to the licensed infrastructure provider in respect of those services would fall, and

Licensed infrastructure providers' works powers12

1

Section 158 M22 (powers to lay pipes in streets) applies as if—

a

in subsection (1) (power to lay pipes etc), after “relevant undertaker”, there were inserted “ and every licensed infrastructure provider, ”; and

b

in subsection (7) (meaning of “relevant pipe”), in paragraph (b), after “a sewerage undertaker”, there were inserted “ or a licensed infrastructure provider ”.

2

Section 159 M23 (power to lay pipes in other land) applies as if, in subsection (1), after “relevant undertaker”, there were inserted “ and every licensed infrastructure provider ”.

3

Section 161 M24 (power to deal with foul water and pollution) applies as if—

a

in subsection (1) (powers in relation to streets), after “relevant undertaker”, there were inserted “ and every licensed infrastructure provider ”; and

b

in subsection (2) (powers in relation to other land), after “relevant undertaker”, there were inserted “ and every licensed infrastructure provider ”.

Annotations:
Marginal Citations
M22

Section 158 was amended by section 40 of the Competition and Service (Utilities) Act 1992, sections 97 and 101(1) of, and Schedule 8 to, the Water Act 2003 and S.I. 2005/268.

M23

Section 159 was amended by section 97 of the Water Act 2003.

M24

Section 161 was amended by section 120 of, and Schedule 22 to, the Environment Act 1995.

Supplemental provisions with respect to licensed infrastructure providers' works powers13

1

Section 179 M25 (vesting of works in relevant undertakers) applies as if—

a

in the title, after “undertaker”, there were inserted “ or licensed infrastructure provider ”;

b

after subsection (1), there were inserted—

1ZA

Every—

a

sewer or disposal main which has been laid, in exercise of any power conferred by this Part or otherwise by a licensed infrastructure provider, and

b

sewage disposal works constructed by a licensed infrastructure provider,

shall vest in the licensed infrastructure provider.

c

in subsection (1A)—

i

for “Subsection (1) above is” there were substituted, “Subsections (1) and (1ZA) above are”; and

ii

after “relevant undertaker”, F45... there were inserted “ or licensed infrastructure provider (as the case may be) ”.

2

Section 180 applies as if for “undertakers” there were substituted “ licensed infrastructure providers ”.

3

Schedule 12 M26 (compensation for damage caused by works etc) applies as if—

a

for “relevant undertaker”, “undertaker” or “sewerage undertaker”, each time it occurs, there were substituted “licensed infrastructure provider”;

b

in paragraph 1 (compensation in respect of street works powers), in sub-paragraph (1), for “, 161 and 162” there were substituted “ and 161 ”;

c

in paragraph 2 (compensation in respect of pipe-laying works in private land) in sub‑paragraph (6) for “, 161(2) and 163” there were substituted “ and 161(2) ”; and

d

paragraphs 2(4) (powers to make regulations), 4(5) (no compensation payable where sewer etc declared vested in a sewerage undertaker), 5 (compensation in respect of metering works) and 6 (compensation in respect of discharges for works purposes) were repealed.

4

Section 181 M27 (complaints with respect to the exercise of works powers on private land) applies as if—

a

for “relevant undertaker” or “undertaker”, each time it occurs, there were substituted “ licensed infrastructure provider ”; and

b

subsection (8) (power to make regulations) were repealed.

5

Section 182 (code of practice with respect to work on private land) applies as if—

a

in subsection (1) (duty to submit a code for approval)—

i

in the words before paragraph (a), after “relevant undertaker”, there were inserted “ and every licensed infrastructure provider ”; and

ii

in paragraph (a), after “appointment”, there were inserted “ or its project licence ”;

b

subsections (2) and (4) (power to make an order) were repealed;

c

in subsection (3) (effect of a code), the words “as a relevant undertaker” were repealed; and

d

in subsection (5) (enforcement), after “relevant undertaker”, there were inserted “ and a licensed infrastructure provider ”.

6

Section 183 applies as if, for “relevant undertakers” there were substituted “ licensed infrastructure providers ”.

7

Schedule 13 M28 (protection for particular undertakings) applies as if—

a

in paragraphs 1(1) (general provisions protecting undertakings), 2 (protection for statutory powers and jurisdiction) and 4 (protection for telecommunication systems), for “relevant undertaker” or “undertaker”, each time it occurs, there were substituted “ licensed infrastructure provider ”;

b

in paragraph 3 (special protection for certain undertakings in respect of street works), for sub-paragraph (5) (offence of contravening the requirements of sub-paragraph (1)), there were substituted—

5

The requirements of sub-paragraph (1) above apply as if they were a duty imposed on a licensed infrastructure provider and shall be enforceable under section 18 above by the Authority.

c

Part 2 (further protective provisions in respect of sewerage powers) were repealed.

8

Section 186 (protective provisions in respect of flood defence works and watercourses etc) applies as if subsections (2) to (6), and (8) were repealed.

9

Section 187 (works in tidal lands etc) applies as if—

a

in subsections (1) and (2), for “relevant undertaker”, in both places it occurs, there were substituted “ licensed infrastructure provider ”;

b

in subsection (2), for “that undertaker”, there were substituted “ that licensed infrastructure provider ”; and

c

in subsection (3), for the words after “any of”, there were substituted “ sections 158, 159 and 161 above. ”.

10

Section 190 (saving for planning controls) applies without modification.

11

Section 192 M29 (interpretation of Part 6) applies as if—

a

subsections (1) (meaning of water discharge pipe), (3), (3A) and (3B) (provisions for works outside a relevant undertaker's appointment area) were repealed; and

b

in subsection (4) (certain obligations to maintain etc a pipe) after “relevant undertaker” or “undertaker”, each time it occurs, there were inserted “or licensed infrastructure provider”.

Functions in relation to information14

1

Section 195 M30 (the Authority's register) applies as if—

F50a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

in subsection (2) (documents to be entered in the register), after paragraph (bc), there were inserted—

bd

every notice issued by the Secretary of State or the Authority under the Regulations (other than a notice issued under regulation 9);

2

Section 195A M31 (reasons for decisions) applies as if, in subsection (1) (decisions for which reasons must be published)—

a

the “and” following paragraph (f) were repealed; and

b

after paragraph (f), there were inserted—

fa

the giving of any notice under the Regulations (other than a notice issued under regulation 9); and

3

Section 199 M32 (sewer maps) applies as if—

a

after subsection (1) (duty to keep records), there were inserted—

1A

Subject to subsection (6) below, it shall be the duty of every licensed infrastructure provider to keep records of the location and relevant particulars of every sewer or disposal main owned by it.

b

in subsection (3) (maintenance of separate records for each local authority area)—

i

after “a sewerage undertaker”, there were inserted “ or a licensed infrastructure provider ”;

ii

after “that undertaker”, there were inserted “ or licensed infrastructure provider ”; and

iii

after “the undertaker”, there were inserted “ or the licensed infrastructure provider ”;

c

in subsection (4) (availability of records)—

i

after “every sewerage undertaker”, there were inserted “ and every licensed infrastructure provider ”; and

ii

after “the undertaker”, there were inserted “ or licensed infrastructure provider (as the case may be) ”;

d

in subsection (5) (information to be available as a map), after “a sewerage undertaker”, there were inserted “ or a licensed infrastructure provider ”; and

e

in subsection (9) (enforcement), after “a sewerage undertaker”, there were inserted “ or a licensed infrastructure provider ”.

4

Section 200 (provision of sewer maps to local authorities) applies as if—

a

in subsection (1) (duty to provide local authorities with records), after “every sewerage undertaker”, there were inserted “ and every licensed infrastructure provider ”; and

b

in subsections (2) (local authority to make records available) and (4) (enforcement), after “a sewerage undertaker” each time they appear, there were inserted “ or a licensed infrastructure provider ”.

5

Section 201 M33 (publication of certain information and advice) applies as if, in subsection (1)(b), after “authorised”, there were inserted “ or regulated ”.

6

Section 202 M34 (duties of undertakers and F46water supply licensees and sewerage licensees to furnish the Secretary of State with information) applies as if—

a

in the title, after “undertakers” there were inserted “ etc ”;

b

in subsection (1A) (duties of F46water supply licensees and sewerage licensees to furnish information), in paragraph (a), after “authorised”, there were inserted “ or regulated ”; and

c

in subsection (5) (enforcement under section 18 of the Act), for “or F47sewerage licensee” there were substituted “ , F47sewerage licensee or licensed infrastructure provider ”.

7

Section 203 M35 (power to acquire information for enforcement purposes) applies as if—

F48a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

subsections (4) and (5) (offences) were repealed;

F49c

in subsection (8) (definition of “the Minister”), after paragraph (a)(ii), there were inserted—

iii

any licensed infrastructure provider carrying out functions using the supply system or sewerage system of any such undertaker”

8

Section 205 M36 (exchange of metering information between service providers) applies as if, in subsection (4), after paragraph (a), there were inserted—

aa

any licensed infrastructure provider; and

Powers of direction conferred on the Secretary of State in relation to national security and civil emergencies15

Section 208 M37 (directions in the interests of national security) applies as if—

a

in subsection (1) (general power of direction)—

i

for “or F51sewerage licensee” there were substituted “ , F51sewerage licensee or licensed infrastructure provider ”; and

ii

for “or F52licensee” there were substituted “ , F52licensee or provider ”;

b

in subsection (2) (power of direction in particular cases)—

i

for “or F53sewerage licensee” there were substituted “ , F53sewerage licensee or licensed infrastructure provider ”; and

ii

for “or F54licensee” there were substituted “ , F54licensee or provider ”; and

c

in subsection (3) (duty of relevant undertakers and F55water supply licensees and sewerage licensees to comply with a direction), for “or F56sewerage licensee”, in both places it occurs, there were substituted “ , F56sewerage licensee or licensed infrastructure provider ”.

General provisions16

1

Section 212 (judicial disqualification) applies as if—

a

after “a relevant undertaker”, there were inserted “ or a licensed infrastructure provider ”; and

b

after “that undertaker”, there were inserted “ or licensed infrastructure provider ”.

2

Section 219 (general interpretation) applies as if—

a

in subsection (1) (definitions)—

i

for the definition of “customer or potential customer” there were substituted—

“customer or potential customer” means—

  1. a

    in relation to a company holding an appointment under Chapter 1 of Part 2 of this Act—

    1. i

      any person for or to whom that company provides any services in the course of carrying out the functions of a water undertaker or sewerage undertaker (other than a F57water supply licensee or sewerage licensee); or

    2. ii

      any person who might become such a person on making an application for the purpose to the company; and

  2. b

    in relation to a licensed infrastructure provider—

    1. i

      any person for or to whom that licensed infrastructure provider provides any services in the course of carrying out its functions; or

    2. ii

      any person for or to whom that licensed infrastructure provider might provide any services in the course of carrying out its functions;

ii

for the definition of “functions” there were substituted—

“functions” means—

  1. a

    in relation to a licensed infrastructure provider, the activities regulated by its project licence and any statutory functions conferred or imposed on it in consequence of its project licence; and

  2. b

    in relation to a relevant undertaker, the functions of the undertaker under or by virtue of any enactment and shall be construed subject to section 217 above;

iii

in the definition of “protected land”, after “ “protected land”,” there were inserted “ in relation to a company which is a licensed infrastructure provider means any land which, or interest or right in or over land which, is held by that company for purposes connected with the carrying out of its functions and, ”; and

iv

the following definitions were inserted at the appropriate place—

  • “project licence” must be construed in accordance with Chapter 1A of Part 2 above;

“the Regulations” means the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013;

b

after subsection (4A) (references to the supply system of a water undertaker), there were inserted—

4B

In this Act, “incumbent undertaker”, “infrastructure”, “infrastructure project” and “licensed infrastructure provider” each have the meaning given in the Regulations.

F7SCHEDULE 2Application of the Utilities Contracts Regulations 2016

Regulation 6

Annotations:
Amendments (Textual)

PART 1

Annotations:
Amendments (Textual)

Provision applied

Modification

regulation 2 (definitions) and Schedule 1 (activities constituting works), regulation 4 (contracting authorities), regulation 36 (principles of procurement), regulation 37 (economic operators)

These provisions apply only to the extent that they are relevant to the provisions referred to in this Schedule.

regulation 39 (confidentiality)

In paragraph (2)(a), for “such as the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in regulations 70 and 75 respectively”, there were substituted “such as the obligations relating to the information to candidates and tenderers set out in regulation 75”.

regulation 40 (rules applicable to communication)

Paragraph (15)(a)(ii) does not apply.

regulation 41 (nomenclatures)

regulation 42 (conflicts of interest)

The incumbent undertaker is bound by paragraph (1) as if it were a contracting authority.

regulation 44 (choice of procedures)

Paragraphs (4)(a) and (5) do not apply.

regulation 45 (open procedure)

Paragraph (4) does not apply.

regulation 46 (restricted procedure)

Paragraph (2)(b) does not apply.

regulation 47 (negotiated procedure with prior call for competition)

Paragraph (2)(b) does not apply.

regulation 48 (competitive dialogue)

Paragraph (2)(b) does not apply.

regulation 49 (innovation partnership)

regulation 50 (use of the negotiated procedure without prior call for competition)

Only paragraphs (1)(a) and (2) apply.

regulation 51 (framework agreements)

regulation 54 (electronic catalogues)

Paragraphs (11) to (13) do not apply.

regulation 55 (centralised purchasing activities and central purchasing bodies)

Paragraph (11) applies as if the words from “Procurement”, where it first appears, to the end of that paragraph were substituted by “For the purposes of this regulation, “dynamic purchasing system” has the same meaning as the system referred to in regulation 52 of the Utilities Contracts Regulations 2016.”.

regulation 56 (occasional joint procurement)

regulation 58 (preliminary market consultations)

regulation 59 (prior involvement of candidates or tenderers)

regulation 60 (technical specifications)

regulation 61 (labels)

regulation 62 (test reports, certification and other means of proof)

regulation 63 (communication of technical specifications)

Paragraph (1)(b) does not apply.

regulation 64 (variants)

regulation 65 (division of contracts into lots)

regulation 66 (setting time limits)

regulation 68 (notices on the existence of a qualification system)

regulation 69 (contract notices)

regulation 71(form and manner of sending notices for publication at EU level)

Paragraph (1) applies as if “regulations 67 to 70” were substituted by “regulations 68, 69”.

regulation 72 (publication at national level)

Paragraph (1) and (3) apply as if “regulations 67 to 70” were substituted by “regulations 68, 69”.

Paragraph (2) applies as if the words “(in addition to the periodic indicative notices referred to in regulation 67(3)(b))” were omitted.

Paragraph (6) does not apply.

regulation 73 (electronic availability of procurement documents)

regulation 74 (invitations to candidates)

Paragraphs (2) and (6) do not apply.

regulation 75 (informing applicants for qualification, candidates and tenderers)

Paragraph (1) applies as if “framework agreement, the award of a contract, or admittance to a dynamic purchasing system” were substituted by “framework agreement or the award of a contract”.

Paragraph (1)(d) does not apply.

regulation 76 (general principles)

regulation 77 (qualification systems)

regulation 78 (criteria for qualitative selection)

regulation 79 (reliance on the capacity of other entities)

regulation 80 (use of exclusion grounds and selection criteria provided for under the Public Contracts Regulations)

The incumbent undertaker is bound by paragraph (2) as if it were a contracting authority.

regulation 81 (quality assurance standards and environmental management standards)

regulation 82 (contract award criteria)

regulation 83 (life-cycle costing)

regulation 84 (abnormally low tenders)

Paragraph (7) applies as if the reference to “the Commission” were a reference to “the Secretary of State and the Water Services Regulation Authority”.

regulation 86 (conditions for performance of contracts)

regulation 87 (subcontracting)

The incumbent undertaker is bound by paragraphs (5), (8), (9), (10) and (11) as if it were a contracting authority.

regulation 88 (modifications of contracts during their term)

regulation 89 (termination of contracts)

regulation 98 (retention of contract copies)

The incumbent undertaker is bound by this regulation as if it were a contracting authority.

regulation 99 (information and documentation requirements)

Paragraph (1) applies as if the words “and each time a dynamic purchasing system is established” were omitted.

Paragraph (7) applies as if the reference to F58“the Minister for the Cabinet Office” in sub-paragraph (a) were a reference to “the Secretary of State or the Water Services Regulation Authority” and F59as if the subsequent reference to “the Minister” in sub-paragraph (a) were a reference to “the Secretary of State or the Water Services Authority (as the case may be)”.

Paragraphs (2)(c), F60(3) and (7)(b) and (c) do not apply.

regulation 100 (scope of Chapter 1)

regulation 101 (notices of decisions to award a contract or conclude a framework agreement)

Paragraph (5)(a) does not apply.

Paragraph (5)(c) applies as if “or a dynamic purchasing system” were omitted.

Paragraph (8) applies as if the words after “expired” in sub-paragraph (b) were omitted.

regulation 102 (standstill period)

Chapter 2 of Part 5 (applications to the Court)

PART 2

CHAPTER 2

Applications to the court

Enforcement of obligations103

1

The obligation on an incumbent undertaker to comply with the provisions of these Regulations, other than regulations 84(7) and 99(7), is a duty owed to an economic operator.

2

A breach of the duty owed in accordance with paragraph (1) is actionable by any economic operator which in consequence suffers, or risks suffering, loss or damage and those proceedings shall be in the High Court.

3

Subject to paragraphs (4) to (6), such proceedings must be started within 30 days beginning with the date on which the economic operator first knew or ought to have known that grounds for starting proceedings had arisen.

4

Paragraph (3) does not require proceedings to be started before the end of any of the following periods—

a

where the proceedings relate to a decision which is sent to the economic operator by facsimile or electronic means, 10 days beginning with—

i

the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision, or

ii

if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

b

where the proceedings relate to a decision which is sent to the economic operator by other means, whichever of the following periods ends first—

i

15 days beginning with the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision, or

ii

10 days beginning with—

aa

the day after the date on which the decision is received, if the decision is accompanied by a summary of the reasons for the decision; or

bb

if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons; and

c

where sub-paragraphs (a) and (b) do not apply but the decision is published, 10 days beginning with day on which the decision is published.

5

Subject to paragraph (6), the Court may extend the time limit imposed by paragraph (3) where the Court considers that there is good reason for doing so.

6

The Court must not exercise its power under paragraph (5) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

7

For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.

8

Subject to paragraph (9), but otherwise without prejudice to any other powers of the Court in proceedings brought under this regulation, the Court may—

a

by interim order—

i

suspend the procedure leading to the award of the contract or the procedure leading to the determination of a design contest in relation to the award of a contract of which the breach of duty owed in accordance with paragraph (1) is alleged; or

ii

suspend the implementation of any decision or action taken by the incumbent undertaker in the course of following such a procedure; and

b

if satisfied that a decision or action taken by an incumbent undertaker was a breach of the duty owed in accordance with paragraph (1)—

i

order the setting aside of that decision or action, or order the incumbent undertaker to amend any document;

ii

award damages to an economic operator which has suffered loss or damage as a consequence of the breach; or

iii

do both of those things.

9

In proceedings under this regulation the Court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) if the contract in relation to which the breach occurred has been entered into.

10

Where, in proceedings under this regulation, the Court is satisfied that an economic operator would have had a real chance of being awarded a contract or winning a design contest if that chance had not been adversely affected by a breach of the duty owed to it by the incumbent undertaker in accordance with paragraph (1), the economic operator shall be entitled to damages amounting to its costs in preparing its tender and in participating in the procedure leading to the award of the contract or its costs of participating in the procedure leading to the determination of the design contest.

11

Paragraph (10) does not affect a claim by an economic operator that it has suffered other loss or damage or that it is entitled to relief other than damages, and is without prejudice to the matters on which an economic operator may be required to satisfy the Court in respect of any other such claim.