The Utilities Contracts (Amendment) Regulations 2009
| Year | 2009 |
2009 No. 3100
PUBLIC PROCUREMENT, ENGLAND AND WALES
PUBLIC PROCUREMENT, NORTHERN IRELAND
The Utilities Contracts (Amendment) Regulations 2009
26thNovember 2009
27thNovember 2009
20thDecember 2009
The Treasury are designated1 for the purposes of section 2(2) of the European Communities Act 19722 in relation to public procurement.
The Treasury make these Regulations in exercise of the powers conferred by section 2(2) of, as read with paragraph 1A3 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 Treasury that it is expedient for certain references to provisions of Community instruments to be construed as references to those provisions as amended from time to time.
Citation, commencement and interpretation
1.-
(1) These Regulations may be cited as the Utilities Contracts (Amendment) Regulations 2009 and come into force on 20th December 2009.
(2) In these Regulations, "the principal Regulations" means the Utilities Contracts Regulations 20064.
Amendment of the principal Regulations
2.The principal Regulations are amended as follows.
3.In the Arrangement of Regulations-
(a) after the entry relating to regulation 29, insert- 29A. Notification.
(b) after the entry relating to regulation 33, insert- 33A. Standstill period.
(c) omit the entry relating to regulation 44;(d) for the entries relating to regulations 45 and 46 substitute- 45. Interpretation of Part 9
45A. Duty owed to economic operators
45B. Duty owed to GPA economic operators
45C. Enforcement of duties through the Court
45D. General time limits for starting proceedings
45E. Special time limits for seeking a declaration of ineffectiveness
45F. Starting proceedings
45G. Contract-making suspended by challenge to award decision
45H. Interim orders
45I. Remedies where the contract has not been entered into
45J. Remedies where the contract has been entered into
45K. Grounds for ineffectiveness
45L. General interest grounds for not making a declaration of ineffectiveness
45M. The consequences of ineffectiveness
45N. Penalties in addition to, or instead of, ineffectiveness
45O. Ineffectiveness etc. in relation to specific contracts under a framework agreement
45P. Injunctions against the Crown
.4.In regulation 2-
(a) in paragraph (1)-(i) omit the definitions of "attestation system" and "Utilities Remedies Directive";(ii) in the definition of "contract", at the end insert ", and includes a framework agreement where required by regulation 18(1) (utility's choice to regard a framework agreement as a contract)"; and(iii) in the definition of "working day", after "Sunday" insert ", Christmas Day, Good Friday"; and(b) in paragraph (4)-(i) at the beginning, for "Where" substitute "Except in Part 9, where"; and(ii) in sub-paragraph (c), omit "except for regulation 33(3),".5.In regulation 16(3)(d), for "with sub-paragraph (b)" substitute "with sub-paragraph (c)".
6.In regulation 19(9), at the end insert "and shall do so in writing if requested by the economic operator".
7.After regulation 29, insert-
Notification
29A.-
(1) Where a utility decides, prior to the stage at which it makes a decision to which regulation 33(1) (award decision) applies, to exclude an applicant, the utility shall notify the applicant of that exclusion.
(2) In this regulation, "applicant" means an economic operator which submitted an offer or applied to be included amongst the economic operators to be selected to tender for or to negotiate the contract.
(3) For the purposes of this regulation, an applicant is excluded if the applicant-
(a) is not invited to tender for, or to negotiate, the contract; or(b) having been so invited, is excluded from consideration prior to the stage mentioned in paragraph (1).(4) This regulation does not apply in relation to a procedure for the award of a contract-
(a) under a dynamic purchasing system; or(b) which is permitted by these Regulations to be awarded without a call for competition..8.In regulation 32(1), (7) and (8), after "1564/2005" insert "as amended from time to time".
9.In regulation 33-
(a) For paragraphs (1) and (2) substitute-Award decision notice
(1) Subject to paragraph (13), a utility shall, as soon as possible after the decision has been made, inform the tenderers and candidates of its decision to award the contract, and shall do so by notice in writing by the most rapid means of communication practicable.
(2) Where it is to be sent to a tenderer, the notice referred to in paragraph (1) shall include-
(a) the criteria for the award of the contract;(b) the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) obtained by-(i) the economic operator which is to receive the notice; and(ii) the economic operator to be awarded the contract,and anything required by paragraph (10);
(c) the name of the economic operator to be awarded the contract; and(d) a precise statement of either-(i) when, in accordance with regulation 33A, the standstill period is expected to end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or(ii) the date before which the utility will not, in conformity with regulation 33A, enter into the contract.(2A) Where it is to be sent to a candidate, the notice referred to in paragraph (1) shall include-
(a) the reasons why the candidate was unsuccessful; and(b) the information mentioned in paragraph (2), but as if the words "and relative advantages" were omitted from sub-paragraph (b).;(b) omit paragraphs (3) to (6);(c) immediately before paragraph (7), insert(6A) Where the contract is permitted by these Regulations to be awarded without a call for competition, the utility need not comply with paragraph (1).
(6B) Where the only tenderer is the one who is to be awarded the contract, and there are no candidates, the utility need not comply with paragraph (1)..
(d) in paragraph (7), after "agreement", insert "or a dynamic purchasing system";(e) omit paragraph (8);(f) immediately before paragraph (9), insert the following heading-Reasons to be given on request to unsuccessful economic operators;
(g) in paragraph (9)-(i) at the beginning, for "Except for a request made in accordance with paragraph (4) which shall be dealt with in accordance with paragraphs (4) to (5)" substitute "Except to the extent that the utility has already informed the economic operator (whether by notice under paragraph (1) or otherwise),"; and(ii) in sub-paragraph (b), omit paragraph (ii), move "or" from the end of that paragraph to the end of paragraph (i), and renumber the existing paragraph (iii) as "(ii)";(h) in paragraph (10), for "paragraph (9)(a) substitute "paragraphs (2)(b) and (9)(a)";(i) immediately before paragraph (11) insert the following heading-Abandonment or recommencement of procedure;.
(j) in paragraph (11)-(i) for the words from "economic operator which" to "admitted to a dynamic purchasing system," substitute "candidates and tenderers"; and(ii) omit sub-paragraph (b), move "or" from the end of that sub-paragraph to the end of sub-paragraph (a), and reletter the existing paragraph (c) as "(b)";(k) immediately before paragraph (13), insert the following heading-Grounds for withholding information;.
(l) in paragraph (13), omit "(4), (8),"; and(m) after paragraph (13), insert-Definitions
(14) For the purposes of this regulation-
(a) "candidate" means an economic operator (other than a tenderer) which applied to be included amongst the economic operators to be selected to tender or to negotiate the contract, but does not include any economic operator which has been informed of the rejection of its application, and the reasons for it; and(b) "tenderer" means an economic operator which submitted an offer..10.After regulation 33, insert-
Standstill period
33A.-
(1) Where regulation 33(1) applies, the utility must not enter into the contract before the end of the standstill period.
(2) Subject to paragraph (6), where the utility sends a regulation 33(1) notice to all the relevant economic operators by facsimile or electronic means, the standstill period ends at midnight at the end of the 10th day after the relevant sending date.
(3) Subject to paragraph (6), where the utility sends a regulation 33(1) notice to all the relevant economic operators only by other means, the standstill period ends at whichever of the following occurs first-
(a) midnight at the end of the 15th day after the relevant sending date;(b) midnight at the end of 10th day after the date on which the last of the economic operators to receive such a notice receives it.(4) In paragraphs (2) and (3), "the relevant sending date" means the date on which the regulation 33(1) notices are sent to the relevant economic operators, and if the notices are sent to different relevant economic operators on different dates, the relevant sending date is the date on which the last of the notices is sent.
(5) Subject to paragraph (6), where the utility sends a regulation 33(1) notice to one or more of the relevant economic operators by facsimile or electronic means and to the others by other means, the standstill period ends at whichever of the following two times occurs latest-
(a) midnight at the end of the 10th day after the date on which the last notice is sent by facsimile or electronic means;(b) the time when whichever of the following occurs first-(i) midnight at the end of the 15th day after the date on which the last notice is sent by other means;(ii) midnight at the end of the 10th day after the date on which the last of the economic operators to receive a notice sent by any such other means receives it.(6) Where the last day of the standstill period reckoned in accordance with paragraphs (2) to (5) is not a working day, the standstill period is extended to midnight at the end of the next working day.
(7) In this regulation-
"regulation 33(1) notice" means a...
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