The Electricity and Gas (Competitive Tenders for Smart Meter Communication Licences) Regulations 2012

Citation and commencement

1. These Regulations may be cited as the Electricity and Gas (Competitive Tenders for Smart Meter Communication Licences) Regulations 2012 and shall come into force on 12th October 2012.

Interpretation

2. In these Regulations—

“best and final offer” means a submission by a qualifying bidder to the competent authority in response to the best and final offer documentation;

“best and final offer documentation” means the documentation in respect of the best and final offer stage of a tender exercise issued in accordance with regulation 13(3);

“bidder” means any person or bidder group that submits a qualification questionnaire to the competent authority in accordance with these Regulations;

“bidder group” means two or more persons acting together for the purposes of any submission to the competent authority in accordance with these Regulations;

“competent authority”, in relation to a tender exercise, means the person determined in accordance with regulation 5;

“confidentiality agreement” means the standard form agreement between the competent authority and a qualifying bidder in respect of confidential information disclosed in connection with a tender exercise after the qualification stage;

“electricity smart meter communication licence” means a smart meter communication licence as that term is defined in section 6(1)(f) of the Electricity Act 1989³;

“first reserve applicant” means a reserve applicant determined as first reserve applicant in accordance with regulation 16(4) in relation to the best and final offer stage or in accordance with regulation 12(6) in any other case;

“gas smart meter communication licence” means a smart meter communication licence as that term is defined in section 7AB(1) of the Gas Act 1986⁴;

“preferred applicant” means a qualifying bidder determined as preferred applicant in accordance with regulation 16(1) in relation to the best and final offer stage or in accordance with regulation 12(1) in any other case;

“proposal” means a submission by a qualifying bidder to the competent authority in response to the proposal documentation;

“proposal documentation” means the documentation in respect of the proposal stage of a tender exercise issued in accordance with regulation 10(1);

“qualification documentation” means the documentation in respect of the qualification stage of a tender exercise issued in accordance with regulation 8(1);

“qualification questionnaire” means a questionnaire of that description published by the competent authority in accordance with regulation 8(1);

“qualifying bidder” means a bidder determined as a qualifying bidder in accordance with regulation 9(1);

“regulated business information” means information relating to the—

(a) regulatory requirements; and

(b) commercial arrangements,

which will apply to the person to whom the gas smart meter licence and the electricity smart meter licence are granted;

“reserve applicant” means a qualifying bidder determined as a reserve applicant in accordance with regulation 16(2) in relation to the best and final offer stage or regulation 12(4) in any other case;

“second reserve applicant” means a reserve applicant determined as second reserve applicant in accordance with regulation 16(4) in relation to the best and final offer stage or regulation 12(6) in any other case;

“selected qualifying bidder” means a qualifying bidder who is selected to be invited to participate in a best and final offer stage in accordance with regulation 13(1);

“smart meter communication service” means the activities described in section 4(3G) of the Electricity Act 1989⁵and section 5(11) of the Gas Act 1986⁶that are to be performed by the person to whom an electricity smart meter communication licence and a gas smart meter communication licence is granted, in accordance with the conditions of those licences;

“successful applicant” means a preferred applicant who becomes the successful applicant in accordance with regulation 18(1);

“tender exercise” means a process carried out in accordance with these regulations with a view to determining the person to whom both an electricity smart meter communication licence and a gas smart meter communication licence are to be granted; and

“tender participant” means a bidder, qualifying bidder (including a qualifying bidder who is also a selected qualifying bidder), preferred applicant, reserve applicant or successful applicant.

Scope of Regulations

3.—(1) These regulations apply in respect of any grant of a relevant licence.

(2) In this regulation, a relevant licence means—

(a)

(a) an electricity smart meter communication licence; or

(b)

(b) a gas smart meter communication licence.

Scope of a tender exercise and consideration of submissions to the competent authority

4.—(1) A tender exercise must only be used to determine the person to whom both an electricity smart meter communication licence and a gas smart meter communication licence are to be granted.

(2) At all stages of a tender exercise, the competent authority must have regard to the suitability of a tender participant for being granted both an electricity smart meter communication licence and a gas smart meter communication licence.

Conduct of a tender exercise

5.—(1) Subject to paragraph (2), the Secretary of State is the competent authority with respect to a tender exercise.

(2) The Authority is the competent authority with respect to a tender exercise where either the condition in paragraph (3) or the condition in paragraph (4) is satisfied.

(3) The condition in this paragraph is satisfied where the tender exercise is commenced on or after 2nd November 2018.

(4) The condition in this paragraph is satisfied where on or before 1st November 2018 the Secretary of State directs that in respect of a particular tender exercise, the Authority is to be the competent authority.

(5) A direction under paragraph (4) may only be given prior to the publication of the notice required under regulation 7(2).

(6) Where a direction under paragraph (4) is given—

(a)

(a) regulation 7(1)(a) does not apply with respect to the Authority and the tender exercise to which the notice refers;

(b)

(b) the Authority must conduct that tender exercise; and

(c)

(c) the Authority may conduct that tender exercise in any manner which is in accordance with these Regulations.

Stages of a tender exercise

6. A tender exercise to be held in accordance with these Regulations shall comprise the following stages—

Commencement of a tender exercise

7.—(1) The competent authority may determine—

(a)

(a) whether to hold a tender exercise; and

(b)

(b) the date of commencement of any such exercise.

(2) Where a tender exercise is to be held, the competent authority must publish a notice stating that such an exercise is to be held and stating the day on which the qualification stage is to be commenced (the “commencement date”), being—

(a)

(a) a date specified in the notice; or

(b)

(b) where no other date is specified, the date of the notice.

(3) The competent authority must include in the notice given under paragraph (2) such information as the competent authority may determine is necessary in relation to—

(a)

(a) the proposal to grant an electricity smart meter communication licence and a gas smart meter communication licence; or

(b)

(b) the tender exercise.

Qualification and confidentiality

8.—(1) The competent authority must commence the qualification stage on the commencement date by publishing the qualification documentation, which must include the information specified in Schedule 1.

(2) Prior to the publication of the qualification documentation, the competent authority may determine that each qualifying bidder will be required to sign a confidentiality agreement before the proposal documentation is issued to that qualifying bidder.

(3) Where the competent authority so determines, the competent authority must publish the form of the confidentiality agreement with the qualification documentation on the commencement date.

(4) In this regulation “commencement date” has the meaning determined in accordance with regulation 7(2).