87.—(1) In the procurement documents, the utility may ask the tenderer to indicate in its tender any share of the contract that it may intend to subcontract to third parties and any proposed subcontractors.
(2) Paragraph (1) is without prejudice to the question of the main contractor's liability.
(3) In the case of works contracts and in respect of services to be provided at a facility under the direct oversight of the utility, after the award of the contract and at the latest when the performance of the contract commences, the utility shall require the main contractor to notify to the utility the name, contact details and legal representatives of its subcontractors, involved in such works or services, insofar as known at the time.
(4) The utility shall require the main contractor to notify the utility of—
(a)any changes to the information notified under paragraph (3) during the course of the contract; and
(b)the name, contact details and legal representatives of any new subcontractors which the main contractor subsequently involves in such works or services.
(5) Where necessary for the purposes of paragraph (8), the required information shall be accompanied by [F1SPDs] (within the meaning of regulation 59 of the Public Contracts Regulations) in respect of subcontractors.
(6) Paragraphs (3) and (4) do not apply to suppliers.
(7) Utilities may extend the obligations provided for in paragraphs (3) and (4) to, for example—
(a)supply contracts, service contracts (other than those concerning services to be provided at the facilities under the direct oversight of the utility) or suppliers involved in works or services contracts;
(b)subcontractors of the main contractor's subcontractors or subcontractors further down the subcontracting chain.
(8) Utilities that are contracting authorities may verify whether there are grounds for exclusion of subcontractors under regulation 57 of the Public Contracts Regulations.
(9) In such cases, the utility—
(a)shall require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are compulsory grounds for exclusion; and
(b)may require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.
(10) For the purposes of paragraph (8) and (9)—
(a)regulations 59 to 61 of the Public Contracts Regulations apply;
(b)references to regulations 56(2), 24 and 41 in regulation 57(8) of the Public Contracts Regulations shall have effect as though such references are to, respectively, regulations 76(6), 42 and 59 in these Regulations;
(c)references to regulations 62 and 63 in regulations 59 and 60 of the Public Contracts Regulations shall have effect as though such reference are to, respectively, regulations 81 and 79 in these Regulations;
(d)in regulation 59(9) of the Public Contracts Regulations, the words “where such contracts are concluded in accordance with regulations 33(7) or 8(a)” shall be replaced with “ with a single economic operator or where such contracts are concluded without reopening competition in accordance with regulation 51 of the Utilities Contracts Regulations 2016. ”;
(e)in regulation 58(9) of the Public Contracts Regulations, the words “in the report referred to in regulation 84(1).” shall be replaced with “ in the information and documentation referred to in regulation 99 of the Utilities Contracts Regulations 2016. ”.
(11) For the purposes of paragraph (5), regulation 59 of the Public Contracts Regulations shall have effect as though a reference to a contracting authority in that regulation were a reference to a utility.
Textual Amendments
F1Word in reg. 87(5) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 10(50) (with Sch. paras. 3-5)