The Utilities Contracts Regulations 2016

2016No. 274

PUBLIC PROCUREMENT, ENGLAND AND WALES

PUBLIC PROCUREMENT, NORTHERN IRELAND

The Utilities Contracts Regulations 2016

11thMarch2016

17thMarch2016

Coming into force in accordance with regulation 1(2) to (4)

The Minister for the Cabinet Office is designated for the purposes of section 2(2) of the European Communities Act 1972( 1) in relation to public procurement( 2).

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( 3) 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 provisions 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.

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;

‘central purchasing body’ means a utility, within the meaning of regulation 5, or a contracting authority, within the meaning of regulation 2(1) of the Public Contracts Regulations, which provides centralised purchasing activities and which may also provide ancillary purchasing activities;

‘centralised purchasing activities’ has the meaning given by regulation 55(10);

‘the Commission’ means the European Commission;

‘contest notice’ means the notice referred to in regulation 95(1);

‘contracts’, except as provided for in regulation 122(10), means contracts for pecuniary interest concluded in writing between one or more utilities and one or more economic operators and having as their object the execution of works, the supply of products or the provision of services.

‘contract notice’ means the notice referred to in regulation 69 or, where relevant, 91(1)(a);

‘contracting authorities’ has the meaning given to it by regulation 4;

‘CPV’ means the Common Procurement Vocabulary as adopted by Regulation (EC) No. 2195/2002 of the European Parliament and of the Council( 4) as amended from time to time;

‘Defence and Security Regulations’ means the Defence and Security Public Contracts Regulations 2011( 5);

‘design contests’ except as provided for in regulation 122(10), means those procedures which enable a utility to acquire, mainly in the fields of town and country planning, architecture, engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes;

‘disabled’, in relation to a person, means a disabled person within the meaning of the Equality Act 2010( 6) and, in relation to a worker, means a disabled person who is a worker;

‘dynamic purchasing system’ except as provided for in regulation 122(10), means the system referred to in regulation 52;

‘economic operator’ means any person, or a utility, or a group of such persons or utilities or both, including any temporary associations of undertakings, which offers the execution of works or a work, the supply of products or the provision of services on the market;

‘electronic means’ means 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;

‘EU Publications Office’ means the Publications Office of the EU;

‘European standard’ means a standard adopted by a European standardisation organisation and made available to the general public;

‘framework agreement’ except as provided for in regulation 122(10), has the meaning given by regulation 51(2);

‘GPA’ means the Agreement on Government Procurement between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended( 7);

‘innovation’ means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations including with the purpose of helping to solve societal challenges or to support the Europe 2020 strategy( 8) for smart, sustainable and inclusive growth;

‘international standard’ means a standard adopted by an international standardisation organisation and made available to the general public;

‘invitation to confirm interest’ means, except in regulation 49(18) and (19), an invitation which a utility sends in order to comply with regulation 74(2);

‘label’ means any document, certificate or attestation confirming that the works, products, services, processes or procedures in question meet certain requirements;

‘label requirements’ means the requirements to be met by the works, products, services, processes or procedures in question in order to obtain the label concerned;

‘legal person’ means a person, whether governed by private law or public law, other than a natural person;

‘life cycle’ means all stages which are consecutive or interlinked, including research and development to be carried out, production, trading and its conditions, transport, use and maintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilisation;

‘national standard’ means a standard adopted by a national standardisation organisation and made available to the general public;

‘Official Journal’ means the Official Journal of the European Union;

‘periodic indicative notice’ means the notice referred to in regulation 67, or where relevant, 91(1)(b);

‘procurement’ means the acquisition by means of a works, supply or service contract of works, supplies or services by one or more utilities from economic operators chosen by those utilities, provided that the works, supplies or services are intended for the pursuit of one of the activities referred to in regulations 9 to 15;

‘procurement document’ means any document produced or referred to by the utility to describe or determine elements of the procurement or the procedure, including the contract notice, the periodic indicative notice or the notices on the existence of a qualification system where they are used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;

‘Public Contracts Regulations’ means the Public Contracts Regulations 2015( 9);

‘selection criteria’, means, except in regulation 96, selection criteria set out by the utility in accordance with regulations 78 or 80, or both;

‘service contracts’ means contracts which have as their object the provision of services other than those referred to in the definition of ‘works contracts’;

‘standard’ means a technical specification, adopted by a recognised standardisation body, for repeated or continuous application, with which compliance is not compulsory;

‘supply contracts’ means contracts which have as their object the purchase, lease, rental or hire-purchase, with or without an option to buy, of products, whether or not the contract also includes, as an incidental matter, siting and installation operations;

‘technical specifications’ has the meaning given by regulation 60(3);

‘tenderer’ means an economic operator that has submitted a tender;

‘TFEU’ means the Treaty on the Functioning of the European Union( 10);

‘the Treaties’ means the Treaty on the European Union( 11) and TFEU;

‘Utilities Contracts Directive’ means Directive 2014/25/EU of the European Parliament and of the Council( 12);

‘utilities’ except as provided for in regulation 122(10), has the meaning given to it by regulation 5;

‘VAT’ means value added tax;

‘a work’ means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function; but ‘works’ is to be interpreted in accordance with paragraph (2);

‘working day’ means a day other than a Saturday, Sunday, Christmas Day, Good Friday or bank holiday within...

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