2016 No. 274 PUBLIC PROCUREMENT, ENGLAND …

1 S T A T U T O R Y I N S T R U M E N T S 2016 No. 274 PUBLIC procurement , ENGLAND AND wales PUBLIC procurement , northern ireland The Utilities Contracts Regulations 2016 Made - - - - 11th March 2016 Laid before Parliament 17th March 2016 Coming into force in accordance with regulation 1(2) to (4) CONTENTS PART 1 GENERAL CHAPTER 1 CITATION, COMMENCEMENT, EXTENT, DEFINITIONS AND SUBJECT-MATTER 1. Citation, commencement and extent 2. Definitions 3. Subject-matter and scope 4. Contracting authorities 5. Utilities 6. Mixed procurement covering the same activity 7. procurement covering several activities CHAPTER 2 ACTIVITIES 8. Common Provisions 9. Gas and heat 10. Electricity 11. Water 12. Transport services 13. Ports and airports 14. Postal services 15. Extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels 2 CHAPTER 3 MATERIAL SCOPE SECTION 1 Thresholds 16. Threshold amounts 17. Methods for calculating the estimated value of the procurement SECTION 2 Excluded contracts and design contests; special provisions for procurement involving defence and security aspects 18.

2 Contracts awarded for the purpose of resale or lease to third parties 19. Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity in a third country 20. Contracts awarded and design contests organised pursuant to international rules 21. Specific exclusions for service contracts 22. Service contracts awarded on the basis of an exclusive right 23. Contracts awarded by certain utilities for the purchase of water and for the supply of energy or of fuels for the production of energy 24. Defence and security 25. Mixed procurement covering the same activity and involving defence or security aspects 26. procurement covering several activities and involving defence or security aspects 27. Contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules 28. Contracts between contracting authorities 29.

3 Contracts awarded to an affiliated undertaking 30. Contracts awarded to a joint venture or to a utility forming part of a joint venture 31. Notification of information 32. Research and development services 33. Contracts subject to special arrangements 34. Activities directly exposed to competition 35. Procedure for establishing whether regulation 34(2)(b) is applicable CHAPTER 4 General Principles 36. Principles of procurement 37. Economic operators 38. Reserved contracts 39. Confidentiality 40. Rules applicable to communication 41. Nomenclatures 42. Conflicts of interest PART 2 RULES APPLICABLE TO CONTRACTS CHAPTER 1 Procedures 43. Conditions relating to the GPA and other international agreements 44. Choice of Procedures 45. Open Procedure 46. Restricted Procedure 347. Negotiated Procedure with prior call for competition 48. Competitive dialogue 49. Innovation partnership 50. Use of the negotiated procedure without prior call for competition CHAPTER 2 Techniques and instruments for electronic and aggregated procurement 51.

4 Framework agreements 52. Dynamic purchasing systems 53. Electronic auctions 54. Electronic catalogues 55. Centralised purchasing activities and central purchasing bodies 56. Occasional joint procurement 57. procurement involving utilities from other member States CHAPTER 3 Conduct of the procedure SECTION 1 Preparation 58. Preliminary market consultations 59. Prior involvement of candidates or tenderers 60. Technical specifications 61. Labels 62. Test reports, certification and other means of proof 63. Communication of technical specifications 64. Variants 65. Division of contracts into lots 66. Setting time limits SECTION 2 Publication and transparency 67. Periodic indicative notices 68. Notices on the existence of a qualification system 69. Contract notices 70. Contract award notices 71. Form and manner of sending notices for publication at EU level 72. Publication at national level 73. Electronic availability of procurement documents 74. Invitations to candidates 75.

5 Informing applicants for qualification, candidates and tenderers SECTION 3 Choice of participants and award of contracts 76. General principles 77. Qualification systems 78. Criteria for qualitative selection 79. Reliance on the capacities of other entities 80. Use of exclusion grounds and selection criteria provided for under the PUBLIC Contracts Regulations 81. Quality assurance standards and environmental management standards 82. Contract award criteria 483. Life-cycle costing 84. Abnormally low tenders SECTION 4 Tenders comprising products originating in third countries and relations with those countries 85. Tenders comprising products originating in third countries CHAPTER 4 Contract performance 86. Conditions for performance of contracts 87. Subcontracting 88. Modification of contracts during their term 89. Termination of contracts PART 3 PARTICULAR procurement REGIMES CHAPTER 1 Social and other specific services 90. Award of contracts for social and other specific services 91.

6 Publication of notices 92. Principles of awarding contracts 93. Reserved contracts for certain services CHAPTER 2 Rules governing design contests 94. Scope of Chapter 2 95. Notices 96. Rules on the organisation of design contests and the selection of participants and the jury 97. Decisions of the jury PART 4 INFORMATION AND DOCUMENTATION 98. Retention of contract copies 99. Information and documentation requirements PART 5 REMEDIES CHAPTER 1 FACILITATION OF REMEDIES 100. Scope of Chapter 1 101. Notices of decisions to award a contract or conclude a framework agreement 102. Standstill period CHAPTER 2 APPLICATIONS TO THE COURT 103. Interpretation of Chapter 2 104. Duty owed to economic operators from EEA States 105. Duty owed to economic operators from certain other States 106. Enforcement of duties through the Court 5107. General time limits for starting proceedings 108. Special time limits for seeking a declaration of ineffectiveness 109.

7 Starting proceedings 110. Contract-making suspended by challenge to award decision 111. Interim orders 112. Remedies where the contract has not been entered into 113. Remedies where the contract has been entered into 114. Grounds for ineffectiveness 115. General interest grounds for not making a declaration of ineffectiveness 116. The consequences of ineffectiveness 117. Penalties in addition to, or instead of, ineffectiveness 118. Ineffectiveness etc. in relation to specific contracts based on a framework agreement 119. Injunctions against the Crown PART 6 REVOCATION, MODIFICATION, SAVINGS AND TRANSITIONAL PROVISIONS 120. Interpretation of Part 6 121. Revocations 122. Transitional provisions and savings where procurement procedure commenced before 18th April 2016 123. Time limits and the 2006 Regulations: modification of the existing saving of the original provisions 124. Transitory provision prior to commencement of regulation 40(1) to (7) PART 7 REVIEW 125.

8 Review of these Regulations SCHEDULE 1 ACTIVITIES CONSTITUTING WORKS SCHEDULE 2 SOCIAL AND OTHER SPECIFIC SERVICES The Minister for the Cabinet Office is designated for the purposes of section 2(2) of the European Communities Act 1972(a) in relation to PUBLIC procurement (b). The Minister for the Cabinet Office makes these Regulations in exercise of the powers conferred by section 2(2) of, as read with paragraph 1A(c) of Schedule 2 to, that Act. These Regulations make provision for a purpose mentioned in section 2(2) of that Act, and it appears to the Minister for the Cabinet Office that it is expedient for certain references to (a) 1972 ; section 2(2) was amended by the Legislative and Regulatory Reform Act 2006 ( ), section 27(1)(a), and by the European Union (Amendment) Act 2008 ( ), Part 1 of the Schedule.

9 (b) 2010/2473. (c) Paragraph 1A was inserted by the Legislative and Regulatory Reform Act 2006 ( ), section 28, and was amended by the European Union (Amendment) Act 2008, Part 1 of the Schedule and by 2007/1388. 6provisions of EU instruments to be construed as references to those provisions as amended from time to time. PART 1 GENERAL CHAPTER 1 CITATION, COMMENCEMENT, EXTENT, DEFINITIONS AND SUBJECT-MATTER Citation, commencement and extent 1. (1) These Regulations may be cited as the Utilities Contracts Regulations 2016. Commencement (2) Except for the provisions mentioned in paragraphs (3) and (4), these Regulations come into force on 18th April 2016. (3) Paragraphs (1) to (7) of regulation 40 come into force (a) for the purposes of regulations 45(6), 52(13), 54(4), 73(4) and 124(2)(a) on 18th April 2016 (b) for the purposes of regulation 55(7), on 18th April 2017; (c) for all other purposes, on 18th October 2018. (4) Regulation 55(7) comes into force on 18th April 2017.

10 Extent (5) These Regulations do not extend to Scotland. Definitions 2. (1) In these Regulations accelerated open procedure means an open procedure in which the utility has exercised the power conferred by regulation 45(5) to fix a time limit for the receipt of tenders which is shorter than the minimum specified in regulation 45(2). ancillary purchasing activities means activities consisting of the provision of support to purchasing activities, in particular in the following forms (a) technical infrastructure enabling utilities to award PUBLIC contracts or to conclude framework agreements for works, supplies or services; (b) advice on the conduct or design of procurement procedures; (c) preparation and management of procurement procedures on behalf and for the account of the utility concerned; call for competition means a call for competition made in a manner permitted by regulation 44(4) or, where relevant, one of the notices referred to in regulation 91(1) or a contest notice; candidate means an economic operator that has sought an invitation or has been invited to take part in a restricted or negotiated procedure, a competitive dialogue or an innovation partnership.