The Utilities Contracts Regulations 2016

Tenders comprising products originating in third countries

85.—(1) This regulation applies to tenders covering products originating in third countries with which the EU has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for EU undertakings to the markets of those third countries.

(2) For the purposes of this regulation—

(a) the origin of products shall be determined in accordance with Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(1) as amended from time to time;

(b) software used in telecommunications network equipment shall be regarded as products; and

(c) those third countries to which the benefits of the Utilities Contracts Directive has been extended by a Decision of the Council of the EU, shall not be taken into account by utilities for determining the proportion, referred to in paragraph (3), of products originating in third countries.

(3) Utilities may reject any tender submitted for the award of a supply contract where the proportion of the products originating in third countries exceeds 50% of the total value of the products constituting the tender.

(4) Where two or more tenders are equivalent in the light of the contract award criteria defined in regulation 82, utilities shall give preference to those tenders which may not be rejected in accordance with paragraph (3).

(5) However, a tender shall not be preferred to another where acceptance would oblige the utility to acquire equipment having technical characteristics different from those of existing equipment, resulting in—

(i) incompatibility;

(ii) technical difficulties in operation and maintenance; or

(iii) disproportionate costs.

(6) For the purposes of paragraph (4), tenders shall be considered equivalent if the price difference between those tenders does not exceed 3%.

(1)

OJ No L 302, 19.10.1992, p1, last amended by Regulation (EU) of the European Parliament and of the Council No 952/2013 of 9 October 2013 (OJ No L 269, 10.10.2013, p1).