The Utilities Contracts Regulations 2006
| Year | 2006 |
2006 No. 6
PUBLIC PROCUREMENT, ENGLAND AND WALES
PUBLIC PROCUREMENT, NORTHERN IRELAND
The Utilities Contracts Regulations 2006
Made 9th January 2006
Laid before Parliament 9th January 2006
Coming into force 31th January 2006
The Treasury, being designated1for the purposes of section 2(2) of the European Communities Act 19722in relation to public procurement, in exercise of the powers conferred upon them by the said section 2(2), make the following Regulations—
PART 1
GENERAL
Citation, commencement and extent
1.—(1) These Regulations may be cited as the Utilities Contracts Regulations 2006 and come into force on 31st January 2006.
(2) These Regulations do not extend to Scotland.
Interpretation
2.—(1) In these Regulations—
“attestation system” means a system under which a utility may have its contract award procedures and practices within the scope of the Utilities Directive examined periodically by an independent person or body with a view to obtaining an attestation that at the time of examination those procedures and practices are in conformity with these Regulations and the Community law to which they give effect;
“to award” means to accept an offer made in relation to a proposed contract;
“buyer profile” means a page on the internet set up by a utility containing one or more of the following: periodic indicative notices, information on ongoing invitations to tender, prospective and concluded contracts, cancelled procedures and useful general information, such as a contact point, a telephone number, a facsimile number, a postal address or an e-mail address;
“carrying out” in relation to a work or works means the construction or the design and construction of that work or those works;
“central purchasing body” means a utility which is a contracting authority and which—
(a) acquires goods or services intended for one or more utilities;
(b) awards contracts intended for one or more utilities;or
(c) concludes framework agreements for work, works, goods or services intended for one or more utilities;
“the Commission” means the European Commission;
“Commission Regulation (EC) No 1564/2005” means Commission Regulation (EC) No 1564/2005of 7 September 20053;
“Common Procurement Vocabulary” means the reference nomenclature applicable to contracts as adopted by Regulation (EC) No 2195/2002of 5 November 2002 of the European Parliament and of the Council on the Common Procurement Vocabulary4;
“contract” means any services contract, supply contract or works contract;
“contract documents” means the invitation to tender for or to negotiate the contract, the proposed conditions of contract, the specifications or descriptions of the goods, services, work or works required by the utility and of the materials or goods to be used in or for such work or works, and all documents supplementary thereto;
“contract notice” means, except in regulation 48, a contract notice sent to the Official Journal in accordance with regulation 16(2)(b);
“contracting authority” has the meaning given to it by regulation 3 of the Public Contracts Regulations 20065;
“contractor” means a person who offers on the market work or works and—
(a) who sought, who seeks, or would have wished, to be the person to whom a works contract is awarded; and
(b) who is a national of and established in a relevant State;
“CPC” means Central Product Classification of the United Nations6;
“CPV” means Common Procurement Vocabulary;
“design contest” means a competition, particularly in the fields of planning, architecture, civil engineering and data processing—
(a) which is conducted by or on behalf of a utility and in which that utility invites the entry by economic operators of plans and designs;
(b) under the rules of which the plans or designs entered will be judged by a jury;
(c) under which prizes may or may not be awarded; and
(d) which enables the utility to acquire the use or ownership of plans or designs selected by the jury;
“disabled person” means any person recognised as disabled within the meaning of the Disability Discrimination Act 19957and “disabled persons” shall be interpreted accordingly;
“disability” has the same meaning as in that Act;
“dynamic purchasing system” means a completely electronic system of limited duration which is—
(a) established by a utility to purchase commonly used goods, work, works or services; and
(b) open throughout its duration for the admission of economic operators which—
(i) satisfy the selection criteria specified by the utility; and
(ii) submit an indicative tender to the utility or person operating the system on its behalf which complies with the specification required by that utility or person;
“EC Treaty” means the Treaty establishing the European Economic Community, signed at Rome on 25 March 1957 as amended by the Community Treaties;
“economic operator” has the meaning given to it by regulation 4;
“electronic auction” means a repetitive electronic process for the presentation of prices to be revised downwards or of new and improved values of quantifiable elements of tenders, including price, which—
(a) takes place after the initial evaluation of tenders; and
(b) enables tenders to be ranked using automatic evaluation methods;
“electronic means” means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
“established” has the same meaning as in the Community Treaties;
“European standard” has the meaning given to it by regulation 12(1);
“financial year” means, except where the context otherwise requires, the period of 12 months ending on the date in any year in respect of which the accounts of a utility are prepared;
“framework agreement” means an agreement or other arrangement, which is not in itself a supply contract, a works contract or a services contract, between one or more utilities and one or more economic operators which establishes the terms (in particular the terms as to price and, where appropriate, quantity) under which the economic operator will enter into one or more contracts with a utility in the period during which the framework agreement applies;
“goods” includes electricity, substances, growing crops and things attached to or forming part of the land which are agreed to be severed before the purchase or hire under a supply contract and any ship, aircraft or vehicle;
“Government Procurement Agreement” means the Agreement on Government Procurement between certain parties to the World Trade Organisation (WTO) signed in Marrakesh on 15th April 19948;
“GPA” means the Government Procurement Agreement;
“indicative tender” means a tender prepared by an economic operator seeking admission to a dynamic purchasing system which sets out the terms on which it would be prepared to enter into a contract with a utility should that utility propose to award a contract under the system;
“international standard” has the meaning given to it by regulation 12(1);
“Minister” has the meaning given to it by regulation 39;
“Minister of the Crown” means the holder of an office in Her Majesty’s Government in the United Kingdom, and includes the Treasury;
“national of a relevant State” means, in the case of a person who is not an individual, a person formed in accordance with the laws of a relevant State and which has its registered office, central administration or principal place of business in a relevant State;
“negotiated procedure” means a procedure leading to the award of a contract whereby the utility negotiates the terms of the contract with one or more economic operators selected by it;
“Office of Government Commerce” means the office of the Treasury having that title9;
“Official Journal” means the Official Journal of the European Union;
“open procedure” means a procedure leading to the award of a contract whereby all interested economic operators may tender for the contract;
“periodic indicative notice” means a notice sent to the Official Journal in accordance with regulation 15;
“Public Sector Directive” means Directive 2004/18/ECof the European Parliament and of the Council of 31 March 200410;
“relevant State” has the meaning given to it by regulation 4(4);
“restricted procedure” means a procedure leading to the award of a contract whereby only economic operators selected by the utility may submit tenders for the contract;
“services contract” means a contract, in writing, for consideration (whatever the nature of the consideration) under which a utility engages a person to provide services but does not include—
(a) a works contract; or
(b) a supply contract;
but a contract for both goods and services shall be considered to be a services contract if the value of the consideration attributable to those services exceeds that of the goods covered by the contract and a contract for services which includes activities specified in Schedule 2 that are only incidental to the principal object of the contract shall be considered to be a services contract;
“services concession contract” means a services contract under which the consideration given by the utility consists of or includes the right to exploit the service or services to be provided under the contract;
“services provider” means a person who offers on the market services and—
(a) who sought, who seeks, or who would have wished—
(i) to be the person to whom a services contract is awarded; or
(ii) to participate in a design contest; and
(b) who is a national of and established in a relevant State;
“ship” includes any boat and other description of a vessel used in navigation;
“substance” means any natural or artificial substance, whether in solid, liquid or gaseous form or in the form of vapour;
“supplier” means a person who offers on the market goods for purchase or hire and—
(a) who sought, who seeks, or who...
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