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Qualification system for providers
    18.—(1)  A utility may establish and operate a system of qualification of providers if that system complies with the following paragraphs of this regulation.

    (2)  The system may involve different stages of qualification and shall be based on objective rules and criteria as determined from time to time by the utility using European standards (within the meaning of regulation 12(1)) as a reference when they are appropriate.

    (3)  The rules and criteria shall be made available on request to providers and any amendment of those rules and criteria shall be sent to them as the amendment is incorporated into the system.

    (4)  A utility may establish a system of qualification pursuant to which a provider may qualify under the system of, or be certified by, another person, and in those circumstances the utility shall inform providers who apply to qualify of the name of that other person.

    (5)  The utility shall inform applicants for qualification of the success or failure of their application within a reasonable period and, if the decision will take longer than 6 months from the presentation of an application, the utility shall inform the applicant, within 2 months of the application, of the reasons justifying a longer period and of the date by which his application will be accepted or refused.

    (6)  In determining what rules and criteria are to be met by applicants to qualify under the system and in determining whether a particular applicant does qualify under the system a utility shall not impose conditions of an administrative, technical or financial nature on some providers which are not imposed upon others and shall not require tests or the submission of evidence which duplicates objective evidence already available.

    (7)  A utility shall inform any applicant whose application to qualify is refused of the decision and the reasons for refusal.

    (8)  An application may only be refused if the applicant fails to meet the requirements for qualification laid down in accordance with paragraph (2) above.

    (9)  The utility shall keep a written record of qualified providers which may be divided into categories according to the type of contract for which the qualification is valid.

    (10)  The utility may cancel the qualification of a provider who has qualified under the qualification system only if he does not continue to meet the rules and criteria laid down in accordance with paragraph (2) above.

    (11)  The utility may not cancel a qualification unless it notifies the provider in writing beforehand of its intention and of the reason or reasons for the proposed cancellation.

    (12)  The utility shall send a notice substantially corresponding to the form set out in Part E of Schedule 5 and containing the information relating to the qualification system therein specified to the Official Journal when the system is first established and, if the utility expects to operate the system for more than three years, or if it has operated the system for more than three years, it shall send additional notices annually.

Selection of providers in the restricted or negotiated procedures
    19.—(1)  A utility using the restricted or the negotiated procedure, with or without a call for competition, shall make the selection of the providers to be invited to tender for or to negotiate the contract on the basis of objective criteria and rules which it determines and which it makes available to providers who request them.

    (2)  The criteria which a utility uses for deciding not to select a provider may include the following, namely that the provider—


(a)  being an individual is bankrupt or has had a receiving order or administration order made against him or has made any composition or arrangement with or for the benefit of his creditors or has made any conveyance or assignment for the benefit of his creditors or appears unable to pay, or to have no reasonable prospect of being able to pay, a debt within the meaning of section 268 of the Insolvency Act 1986^[17], or Article 242 of the Insolvency (Northern Ireland) Order 1989^[18], or in Scotland has granted a trust deed for creditors or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of his estate, or is the subject of any similar procedure under the law of any other state;


(b)  being a partnership constituted under Scots law has granted a trust deed or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of its estate;


(c)  being a company has passed a resolution or is the subject of an order by the court for the company's winding up otherwise than for the purposes of bona fide reconstruction or amalgamation, or has had a receiver, manager or administrator on behalf of a creditor appointed in respect of the company's business or any part thereof or is the subject of proceedings for any of the above procedures or is the subject of similar procedures under the law of any other state;


(d)  has been convicted of a criminal offence relating to the conduct of his business or profession;


(e)  has committed an act of grave misconduct in the course of his business or profession;


(f)  has not fulfilled obligations relating to the payment of social security contributions under the law of any part of the United Kingdom or of the relevant State in which the provider is established;


(g)  has not fulfilled obligations relating to the payment of taxes under the law of any part of the United Kingdom or of the relevant State in which the provider is established; or


(h)  is guilty of serious misrepresentation in providing information to the utility.

    (3)  Without prejudice to the generality of paragraph (1) above the criteria may be based on the need of the utility to reduce the number of providers selected to tender for or to negotiate the contract to a level which is justified by the characteristics of the award procedure and the resources required to complete it.

    (4)  For the purposes of assessing a services provider's technical capacity, a utility may ask that services provider to provide any certificate that the services of the services provider to be provided under the contract conform to BS/EN/ISO 9000 or any certificate of an independent body established in any relevant State conforming to the EN 45 000 European standards series attesting conformity to relevant quality assurance standards based on the EN 29 000 series, or where the services provider has no access to such a certificate, or cannot obtain such a certificate within the relevant time limits, any other evidence of conformity to equivalent quality assurance standards.

    (5)  The utility shall take account of the need to ensure adequate competition in determining the number of persons selected to tender for or to negotiate the contract.

Consortia and Corporations
    20.—(1)  In this regulation a "consortium" means two or more persons, at least one of whom is a provider, acting jointly for the purpose of being awarded a contract.

    (2)  A utility shall not treat the tender of a consortium as ineligible nor decide not to include a consortium amongst those persons from whom it will make the selection of persons to be invited to tender for or to negotiate a contract on the grounds that the consortium has not formed a legal entity for the purpose of tendering for or negotiating the contract; but where a utility awards a contract to a consortium it may, if to do so is justified for the satisfactory performance of the contract, require the consortium to form a legal entity before entering into, or as a term of, the contract.

    (3)  In these Regulations references to a provider where the provider is a consortium include a reference to each person who is a member of that consortium.

    (4)  A utility shall not treat the tender of a services provider as ineligible or decide not to include a services provider amongst those persons from whom it will make the selection of persons to be invited to tender for or to negotiate a contract on the ground that under the law of any part of the United Kingdom the services provider is required to be an individual, corporation or other type of body if, under the law of the relevant State in which the services provider is established, he is authorised to provide such services.

    (5)  A utility may require a services provider which is not an individual to indicate in the tender or in the request to be selected to tender for or to negotiate the services contract the names and relevant professional qualifications of the staff who will be responsible for the provision of the services.

[17] 1986 c. 45. back

[18] S.I. 1989/2405 (N.I. 19). back