Statutory Instrument 2001 No. 2418

      The Utilities Contracts (Amendment) Regulations 2001

      © Crown Copyright 2001

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STATUTORY INSTRUMENTS

2001 No. 2418

PUBLIC PROCUREMENT

The Utilities Contracts (Amendment) Regulations 2001

  Made 4th July 2001 
  Laid before Parliament 5th July 2001 
  Coming into force 26th July 2001 

The Treasury, being designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to public procurement, in exercise of the powers conferred upon them by the said section 2(2)[3] and of all other powers enabling them in that behalf, hereby make the following Regulations:

Citation and commencement
     1. These Regulations may be cited as the Utilities Contracts (Amendment) Regulations 2001 and shall come into force on 26th July 2001.

Interpretation
     2. In these Regulations "the Utilities Regulations" shall mean the Utilities Contracts Regulations 1996[4].

Amendment of the Utilities Regulations
     3.  - (1) Regulation 2 of the Utilities Regulations (interpretation) shall be amended - 

    (2) Regulation 10 of the Utilities Regulations (thresholds) shall be amended-

    (a) by replacing paragraph (2) with - 

        " (2) The relevant threshold for the purposes of paragraph (1) above in relation to a contract to be awarded by a utility specified in Part T of Schedule 1 is - 

      (a) 600,000 euro for a supply or services contract; and

      (b) 5,000,000 euro for a works contract.";

    (b) by inserting the following paragraphs after paragraph (2) - 

        " (2A) The relevant threshold for the purposes of paragraph (1) above in relation to a contract to be awarded by a utility specified in Parts A to F, O, P, R or S of Schedule 1 is - 

      (a) the euro equivalent of 400,000 special drawing rights for a supply contract;

      (b) for a services contract - 

        (i) the euro equivalent of 400,000 special drawing rights for a Part A services contract other than - 

          (aa) a contract for research and development services specified in category 8 of Part A of Schedule 4;

          (bb) a contract for telecommunications services specified under CPC[7] references 7524, 7525 and 7526 within category 5 of Part A of Schedule 4;

        (ii) 400,000 euro for a Part A services contract described in sub-paragraph (aa) or (bb) above or for a Part B services contract; and

      (c) the euro equivalent of 5,000,000 special drawing rights for a works contract.

        (2B) The relevant threshold for the purposes of paragraph (1) above in relation to a contract to be awarded by a utility specified in Parts G to N or Q of Schedule 1 is - 

      (a) 400,000 euro for a supply or services contract; or

      (b) 5,000,000 euro for a works contract."; and

    (c) by adding the following paragraph - 

        " (20) The value in pounds sterling of any amount expressed in these Regulations in euro or in the euro equivalent of special drawing rights shall be calculated by reference to the rate for the time being applying for the purposes of Council Directive 93/38/EEC as published from time to time in the Official Journal[8].".

    (3) Regulation 14(2)(b) of the Utilities Regulations (prior indicative notices) shall be replaced by - 

      " (b) works contracts whose estimated value at the date of despatch of the notice is not less than - 

        (i) 5,000,000 euro for a contract expected to be awarded by a utility specified in Part T of Schedule 1;

        (ii) the euro equivalent of 5,000,000 special drawing rights for a contract expected to be awarded by a utility specified in Parts A to F, O, P, R or S of Schedule 1.".

    (4) Regulation 15 of the Utilities Regulations (call for competition) shall be amended - 

    (a) by inserting the words ", including the information described in paragraph (3A) below," after the words "detailed information" in sub-paragraph (c) of paragraph (3); and

    (b) by inserting the following paragraph after paragraph (3)-

        " (3A) The information referred to in paragraph (3)(c) above shall include-

      (a) the nature and quantity or extent of the goods, works or services to be supplied under the contract;

      (b) any options for further supplies, works or services and, if known, an estimate of the timing when such options may be exercised;

      (c) in the case of recurring contracts for goods, works or services, their nature and quantity or extent, and, if known, the estimated date of the subsequent calls for competition for the goods, works or services to be supplied;

      (d) a statement of whether the contract is to be awarded using the restricted or the negotiated procedure;

      (e) any date for beginning or completing the delivery of goods or for performing works or services;

      (f) the address to which and the date by which an application to be invited to tender must be submitted and the language in which it must be submitted;

      (g) the address of the utility and any information needed to obtain specifications and other documents relating to the proposed contract;

      (h) any economic and technical requirements, financial guarantees and information required from providers;

      (i) the amount to be paid for and terms of payment in respect of the documents relating to the proposed contract; and

      (j) a statement of whether the utility is inviting offers for purchase, lease, rental or hire-purchase or involving more than one of these methods.".

    (5) Regulation 17 of the Utilities Regulations (time limits) shall be amended - 

    (a) by replacing paragraph (2) with - 

        " (2) Where - 

      (a) the utility has published a periodic indicative notice in accordance with regulation 14(1);

      (b) the periodic indicative notice contained as much of the information specified in Parts II and III of Part A of Schedule 5 as was available at the time of publication; and

      (c) the periodic indicative notice was sent to the Official Journal at least 52 days and not more than 12 months before the date on which the contract notice was despatched,

    the utility may substitute for the period of not less than 52 days specified in paragraph (1) above a shorter period of generally not less than 36 days and in any event not less than 22 days from the date of despatch of the contract notice, provided in each case that the period is sufficient to allow for effective tendering.";

    (b) by substituting "37 days" for "five weeks" in paragraph (3);

    (c) by substituting "24 days" for "3 weeks" in paragraph (4); and

    (d) by adding the following paragraphs-

        " (11) Tenders shall be submitted in writing either in person or by post, except that a utility may authorise another means of submission provided that the chosen means enables - 

      (a) each tender to contain all the information necessary for its evaluation;

      (b) the confidentiality of tenders to be maintained pending their evaluation; and

      (c) tenders to be opened only after the time limit for their submission has expired.

        (12) Where a utility has authorised another means of submission in accordance with paragraph (11) above, it may require either that the submission of the tender is confirmed in writing or that a copy of the tender is delivered to it in person or by post, in either case as soon as possible after the submission of the tender by another means.".

    (6) The following paragraph shall be inserted after regulation 18(1) of the Utilities Regulations (qualification system for providers)-

        " (1A) The utility shall permit providers to apply for qualification under the system at any time.".

    (7) Regulation 23(2) of the Utilities Regulations (contract award notice) shall be amended by substituting "paragraphs 6, 9 and 11" for "paragraphs 6 and 9".

    (8) The following regulation shall be inserted after regulation 23 of the Utilities Regulations (contract award notice)-

    (9) Regulation 27 of the Utilities Regulations (statistical and other reports) shall be amended by inserting the following paragraphs after paragraph (2) - 

    (10) Regulation 31(1) (design contests) shall be replaced by - 

    (11) The following regulation shall be inserted after regulation 31 of the Utilities Regulations (design contests) - 

    " Attestation
             31A.  - (1) A utility which has recourse to an attestation system and obtains an attestation in accordance with Articles 4 and 5 of Directive 92/13/EEC[9] from an independent person or body accredited in a relevant State for the purpose of attestation in accordance with Article 6 of that Directive may include the following statement in a notice sent to the Official Journal for publication pursuant to regulations 14(1), 15(2)(b), 18(12) and 23(1) - 

        " The contracting entity has obtained an attestation in accordance with Council Directive 92/13/EEC that, on . . ., its contract award procedures and practices were in conformity with Community law and the national rules implementing that law."

        (2) An attestation system established in a relevant State in accordance with the European Attestation Standard[10] shall be presumed to be in accordance with Articles 4 to 6 of Directive 92/13/EEC.".

    (12) Regulation 32 of the Utilities Regulations (enforcement of obligations) shall be amended - 

    (a) by inserting the following paragraphs after paragraph (1)-

        " (1A) The duty owed to a provider pursuant to paragraph (1) above, except in relation to - 

      (a) a Part B services contract;

      (b) a contract for research and development services specified in category 8 of Part A of Schedule 4; and

      (c) a contract for telecommunications services specified under CPC references 7524, 7525 and 7526 within category 5 of Part A of Schedule 1,

    shall be a duty owed also to a GPA provider.

        (1B) References to a "provider" in paragraphs (2), (4), (7) and (8) below shall be construed as including a reference to a GPA provider.";

    (b) by inserting the following words after the words "pursuant to paragraph (1)" in paragraphs (2), (4)(a), (5), (6) and (7)-

"or paragraph (1A)"; and

    (c) by adding the following paragraph - 

        " (10) In this regulation - 

      (a) a "GPA provider" shall mean a person from a GPA State who has sought, or who seeks, or would have wished, to be the person to whom the contract is awarded;

      (b) a "GPA State" shall mean any country other than a relevant State which at the relevant time is a signatory to the GPA and has agreed with the European Community that the GPA shall apply to a contract of the type to be awarded[11]; and

      (c) "relevant time" shall mean - 

        (i) if the utility selects providers to tender for or to negotiate the contract in accordance with a qualification system established in accordance with regulation 18, the date on which the selection commences; or

        (ii) if the utility satisfies the requirement that there be a call for competition by indicating the intention to award the contract in a periodic indicative notice in accordance with regulation 15(2)(a)(i), the date on which the notice is sent to the Official Journal; or

        (iii) in any other case, the date on which a contract notice would be sent to the Official Journal if the requirement that there be a call for competition applied and the utility decided to satisfy that requirement by sending such a notice.".

    (13) Schedule 1 to these Regulations (which substitutes a new Schedule 1 to the Utilities Regulations) shall have effect.

    (14) Schedule 2 to these Regulations (which substitutes a new Schedule 2 to the Utilities Regulations) shall have effect.

    (15) Schedule 3 to these Regulations (which substitutes a new Schedule 5 to the Utilities Regulations) shall have effect.


John Heppell

Anne McGuire
Two of the Lords Commissioners of Her Majesty's Treasury

4th July 2001



SCHEDULE 1
Regulation 3(13)

Schedule 1 to the Utilities Regulations shall be replaced by: - 






SCHEDULE 2
Regulation 3(14)

Schedule 2 to the Utilities Regulations shall be replaced by - 






SCHEDULE 3
Regulation 3(15)

Schedule 5 to the Utilities Regulations shall be replaced by - 




EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations implement European Parliament and Council Directive 98/4/EC (OJ No. L101, 1.4.1998, p.1) in its entirety and for England, Wales, Scotland and Northern Ireland. Directive 98/4/EC amends Council Directive 93/38/EEC (OJ No. L199, 9.8.1993, p.84) co-ordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. That Directive has been implemented for the United Kingdom by the Utilities Contracts Regulations 1996 (S.I. 1996/2911) ("the Utilities Regulations"). These Regulations also make provision for utilities whose contract award procedures and practices have been attested as being in conformity with Community law and national legislation under an attestation system established in accordance with Council Directive 92/13/EEC (OJ No. L397, 29.10.1990, p.1) to include a statement to that effect in the notices they publish in the Official Journal of the European Communities.

The Utilities Regulations specify the procedures to be followed by public bodies and bodies with special or exclusive rights carrying on an activity in the water, energy, transport and telecommunications sectors, called "utilities", when they seek offers for certain contracts for the provision of works, services or supplies. The principal purpose of Directive 98/4/EC is to ensure that contractors, service-providers and suppliers in the European Union, called "providers", are treated no less favourably under Council Directive 93/38/EEC than third country providers are treated under the WTO Government Procurement Agreement (GPA) when it applies. These Regulations amend the requirements of the Utilities Regulations accordingly. Information on the GPA (Cm 2572) and where it applies may be found on the WTO web-site (www.wto.org).

In the interests of transparency, these Regulations bring up to date the descriptions of the utilities to which the Utilities Regulations may apply and modify the lists of relevant States in Europe whose providers are owed duties of compliance under the Utilities Regulations, in the same way as providers who are nationals of or established in a Member State.

Where the GPA applies, these Regulations extend the benefit of the duty of compliance with the Utilities Regulations to contractors, service-providers and suppliers who are nationals of or established in third country signatories to the GPA.

Thus these Regulations make the following amendments to the Utilities Regulations:

    (a) The financial thresholds for the purpose of defining contracts to which the Utilities Regulations apply are modified to align them with the thresholds of the GPA (regulation 3(2));

    (b) The financial thresholds for prior indicative notices in relation to works contracts are modified (regulation 3(3));

    (c) The information to be sent to interested providers by a utility before inviting them to confirm their interest is expanded (regulation 3(4));

    (d) Utilities are permitted to reduce the time limit for the receipt of tenders provided certain conditions are met (regulation 3(5));

    (e) Utilities are permitted to authorise the submission of tenders by electronic means and other methods instead of submission in person or by post, provided certain conditions are met (regulation 3(5));

    (f) Requirements are specified about the information to be given by utilities when de-briefing candidates and tenderers (regulation 3(8));

    (g) The reporting requirements with which utilities are required to comply are extended (regulation 3(9));

    (h) The financial thresholds for the regulation of design contests are modified (regulation 3(10));

    (i) Utilities which have recourse to an attestation system in a relevant State and obtain an attestation in accordance with Council Directive 92/13/EEC may include reference to the award of attestation in notices sent to the Official Journal (regulation 3(11));

    (j) The benefit of a utility's duty of compliance with the Utilities Regulations is extended to contractors, service-providers and suppliers respectively who are nationals of or established in GPA States, where the GPA applies (regulation 3(12));

    (k) The list of utilities to which the Regulations may apply is updated (regulation 3(13) and Schedule 1);

    (l) The list of relevant States whose providers are owed duties of compliance under the Utilities Regulations is updated (regulation 3(14) and Schedule 2);

    (m) Revised forms of model notices for publication in the Official Journal are provided (regulation 3(15) and Schedule 3).

Notes:

 [1] S.I. 1991/755.back

[2] 1972 c. 68.back

[3] The powers remain exercisable by the Treasury as regards Scotland by virtue of section 57(i) of the Scotland Act 1998 (c. 46).back

[4] S.I. 1996/2911.back

[5] OJ No. L199, 9.8.1993, p. 84.back

[6] Cm 2575. As at 1st January 2001, parties to the Government Procurement Agreement other than relevant States were Aruba, Canada, Hong Kong Special Administrative Region, Israel, Japan, Republic of Korea, Singapore, Switzerland and the United States of America.back

[7] CPC stands for the Central Product Classification of the United Nations, published in the United Kingdom by The Stationery Office, ISBN 9211613981.back

[8] The rates are determined every two years in principle and published in the Official Journal. The calculation is based upon the average of the daily exchange rates between special drawing rights and the euro and between the euro and sterling over a period of 24 months preceding the determination.back

[9] OJ No. L387, 29.10.1990, p. 1.back

[10] The European Attestation Standard EN 45503:1996D for the assessment of contract award procedures and practices of entities operating in the water, energy, transport and telecommunications sectors was prepared under the mandate of the Commission of the European Communities and of the European Free Trade Association. It has been adopted as British Standard BS: EN 4550.back

[11] Information on the detailed application of the GPA under bilateral agreements between the EU and other signatories is maintained in the annexes and general notes in Appendix I to the GPA. Access to this information is available through the WTO website at www.wto.org.back

[12] 1991 c. 56.back

[13] 1994 c. 39.back

[14] 1989 c. 29.back

[15] S.I. 1992/231 (N.I.1).back

[16] 1986 c. 44; section 7(1) was amended by section 5 of the Gas Act 1995 (c. 45).back

[17] S.I. 1996/275 (N.I.2).back

[18] 1989 c. 29.back

[19] 1998 c. 17.back

[20] 1964 c. 28 (N.I.).back

[21] 1994 c. 21.back

[22] 1969 c. 35 (N.I.).back

[23] 1986 c. 31.back

[24] S.I. 1994/426 (N.I.1).back

[25] 1964 c. 40.back

[26] 1970 c. 1 (N.I.).back

[27] 1999 c. 29.back

[28] 1967 c. 37 (N.I.).back

[29] 1984 c. 12.back

[30] Cmnd 2073 as adjusted by the Protocol signed in Brussels on 17th March 1993 (Cmnd 2183).back

[31] 1993 c. 51.back

[32] CPC stands for Central Product Classification of the United Nations, published in the United Kingdom by The Stationery Office; ISBN 9211613981.back

[33] In accordance with regulation 11.back

[34] In accordance with regulation 11.back

[35] In accordance with regulation 11.back

[36] In accordance with regulation 11.back

[37] In accordance with regulation 11.back


ISBN 0 11 029811 X


 

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