The Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2013

PART 1 INTRODUCTORY

Citation, commencement and revocation

1.—(1) These Regulations may be cited as the Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2013 and shall come into force on 22nd February 2013.

(2) Subject to regulation 2, the Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2010 (“the 2010 Regulations”)(1) are revoked.

Transitional provisions

2.—(1) Where the Authority has given notice in respect of the invitation to tender stage for a particular qualifying project in accordance with regulation 15(1) of the 2010 Regulations at the date upon which these Regulations come into force, the 2010 Regulations continue to apply in respect of that tender exercise.

(2) If, prior to these Regulations coming into force, the Authority has not given the notice referred to in paragraph (1) for a particular qualifying project which is subject to the 2010 Regulations—

(a) a tender exercise in respect of that qualifying project shall, from the date these Regulations come into force, be treated as having been held and continue to be held under these Regulations;

(b) a tender exercise in respect of that qualifying project that complied with all of the applicable requirements of the 2010 Regulations before they were revoked is not to be treated as defective under these Regulations by virtue only of its failure to comply with the requirements of these Regulations in respect of any aspect of the tender exercise held prior to the date upon which these Regulations come into force.

Interpretation

3.—(1) In these Regulations –

“the 1989 Act” means the Electricity Act 1989;

“the Authority” means the Gas and Electricity Markets Authority;

“associated” in relation to a body corporate has the meaning given in paragraph 37 of Schedule 2A to the 1989 Act(2);

“best and final offer” means a submission by a qualifying bidder to the Authority in response to the best and final offer documentation issued in accordance with regulation 19(3);

“bid costs” means the costs incurred by a qualifying bidder in the preparation of a tender in respect of a qualifying project as determined in accordance with regulation 8(4)(b);

“bidder” means any person who submits a pre-qualification questionnaire to the Authority in accordance with these Regulations;

“bidder group” means two or more persons approved by the Authority acting together as bidder, qualifying bidder, preferred bidder, reserve bidder or successful bidder;

“confidentiality agreement” means the standard form agreement between a developer and a qualifying bidder in respect of confidential information disclosed in connection with a tender exercise;

“connection offer” means an offer by the holder of a co-ordination licence of a connection to or modification of a connection to the transmission system;

“cost recovery methodology” means the methodology for calculating and recovering the Authority’s tender costs in relation to a particular tender round published by the Authority in accordance with regulation 11(4);

“data room” means a secure store of information in respect of a qualifying project to be maintained by the Authority;

“developer” means any person within section 6D(2)(a) of the 1989 Act or within a developer group;

“developer group” means two or more persons acting together for the purposes of developing a qualifying project;

“entry conditions” means the conditions specified in paragraph 1 or 2 of Schedule 2;

“generator build tender exercise” means a tender exercise in respect of which the transmission assets have been, are being or are to be constructed or installed—

(a)

by or on behalf of any person (“A”) who falls, or at any time during such construction or installation fell, within section 6D(2)(a) of the 1989 Act; or

(b)

by a body corporate that is, or at any time during such construction or installation was, associated with A;

“information memorandum” means a memorandum of that description issued by the Authority to a qualifying bidder containing in summary form information in respect of a qualifying project;

“preliminary works” means all necessary works obtained or to be obtained by a developer in relation to the development of the proposed transmission assets, prior to the grant of an offshore transmission licence to a successful bidder in respect of a qualifying project as determined in accordance with regulation 8(4)(b), for example, without limitation, works in relation to planning permissions, consents, wayleaves, easements, leases, topography and sea bed surveys, environment and archaeological surveys, impact assessments and professional fees related to obtaining the necessary works;

“preliminary works transfer agreement” means the agreement to transfer any–

(a)

property interests, rights or liabilities in or relating to preliminary works;

(b)

shares or other interests in an undertaking, having the meaning given in section 1161 of the Companies Act 2006(3), in which any property interests, rights or liabilities within paragraph (a) are vested; or

(c)

beneficial interest in any property interests, rights or liabilities within paragraph (a) or shares or interests within paragraph (b),

from a developer to a successful bidder in respect of a qualifying project as determined in accordance with regulation 8(4)(b);

“preferred bidder” has the meaning given in paragraph 35(1) of Schedule 2A to the 1989 Act;

“pre-qualification questionnaire” means a questionnaire of that description published by the Authority in accordance with regulation 13(1) or regulation 13(2)(a);

“qualification to tender questionnaire” means a questionnaire of that description published by the Authority in accordance with regulation 15(3);

“qualifying bidder” means a bidder determined as a qualifying bidder in accordance with regulation 14(1);

“qualifying project” means a project as determined in accordance with regulation 8(3);

“relevant generating station” means a generating station that generates, or is to generate, electricity to be transmitted over the transmission assets;

“reserve bidder” means a qualifying bidder determined as a reserve bidder in accordance with regulation 19(5) in relation to the best and final offer stage or regulation 18(3) in any other case;

“security” includes a charge over a bank account or any other asset, a deposit of money, a performance bond or bank guarantee, an insurance policy or a letter of credit;

“system specification” means the requirements for the design and construction of the transmission assets in respect of a qualifying project as determined in accordance with regulation 8(4)(b), consistent with any such requirements agreed in the bilateral agreement entered into by the developer with the holder of a co-ordination licence in accordance with the arrangements for connection and use of the transmission system;

“tender” means a submission by a qualifying bidder to the Authority in response to the invitation to tender documentation issued in accordance with regulation 17(3);

“tender round” means one or more tender exercises being held or to be held, with a view to determining to whom offshore transmission licences are to be granted for each qualifying project subject to such tender exercises, commencing on the date specified in a notice given in accordance with regulation 11(1) or regulation 11(3);

“tender rules” means the rules in relation to a particular tender round published by the Authority in accordance with regulation 11(4);

“transfer agreement” means the agreement to transfer any–

(a)

property interests, rights or liabilities in or relating to transmission assets;

(b)

shares or other interests in an undertaking, having the meaning given in section 1161 of the Companies Act 2006, in which any property interests, rights or liabilities within paragraph (a) are vested; or

(c)

beneficial interest in any property interests, rights or liabilities within paragraph (a) or shares or interests within paragraph (b),

from a developer to a successful bidder in respect of a qualifying project subject to a generator build tender exercise;

“transmission assets” has the meaning given in paragraph 1(3)(a) of Schedule 2A to the 1989 Act; and

“transmission services” has the meaning given in the standard conditions of a transmission licence.

(2) Any notice required to be given by the Authority in accordance with these Regulations shall be given by publication in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(1)

S.I. 2010/1903.

(2)

1989 c.29; schedule 2A was inserted by section 44 of the Energy Act 2008 (c.32).

(3)

2006 c.46.