Explanatory note

(This note is not part of the Regulations)

These Regulations implement European Parliament and Council Directive 98/4/EC (OJ No. L101, 1.4.1998, p.1) in its entirety and for England, Wales, Scotland and Northern Ireland. Directive 98/4/EC amends Council Directive 93/38/EEC (OJ No. L199, 9.8.1993, p.84) co-ordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. That Directive has been implemented for the United Kingdom by the Utilities Contracts Regulations 1996 (S.I. 1996/2911) (“the Utilities Regulations”). These Regulations also make provision for utilities whose contract award procedures and practices have been attested as being in conformity with Community law and national legislation under an attestation system established in accordance with Council Directive 92/13/EEC (OJ No. L397, 29.10.1990, p.1) to include a statement to that effect in the notices they publish in the Official Journal of the European Communities.

The Utilities Regulations specify the procedures to be followed by public bodies and bodies with special or exclusive rights carrying on an activity in the water, energy, transport and telecommunications sectors, called “utilities”, when they seek offers for certain contracts for the provision of works, services or supplies. The principal purpose of Directive 98/4/EC is to ensure that contractors, service-providers and suppliers in the European Union, called “providers”, are treated no less favourably under Council Directive 93/38/EEC than third country providers are treated under the WTO Government Procurement Agreement (GPA) when it applies. These Regulations amend the requirements of the Utilities Regulations accordingly. Information on the GPA (Cm 2572) and where it applies may be found on the WTO web-site (www.wto.org).

In the interests of transparency, these Regulations bring up to date the descriptions of the utilities to which the Utilities Regulations may apply and modify the lists of relevant States in Europe whose providers are owed duties of compliance under the Utilities Regulations, in the same way as providers who are nationals of or established in a Member State.

Where the GPA applies, these Regulations extend the benefit of the duty of compliance with the Utilities Regulations to contractors, service-providers and suppliers who are nationals of or established in third country signatories to the GPA.

Thus these Regulations make the following amendments to the Utilities Regulations:

(a)

The financial thresholds for the purpose of defining contracts to which the Utilities Regulations apply are modified to align them with the thresholds of the GPA (regulation 3(2));

(b)

The financial thresholds for prior indicative notices in relation to works contracts are modified (regulation 3(3));

(c)

The information to be sent to interested providers by a utility before inviting them to confirm their interest is expanded (regulation 3(4));

(d)

Utilities are permitted to reduce the time limit for the receipt of tenders provided certain conditions are met (regulation 3(5));

(e)

Utilities are permitted to authorise the submission of tenders by electronic means and other methods instead of submission in person or by post, provided certain conditions are met (regulation 3(5));

(f)

Requirements are specified about the information to be given by utilities when de-briefing candidates and tenderers (regulation 3(8));

(g)

The reporting requirements with which utilities are required to comply are extended (regulation 3(9));

(h)

The financial thresholds for the regulation of design contests are modified (regulation 3(10));

(i)

Utilities which have recourse to an attestation system in a relevant State and obtain an attestation in accordance with Council Directive 92/13/EEC may include reference to the award of attestation in notices sent to the Official Journal (regulation 3(11));

(j)

The benefit of a utility’s duty of compliance with the Utilities Regulations is extended to contractors, service-providers and suppliers respectively who are nationals of or established in GPA States, where the GPA applies (regulation 3(12));

(k)

The list of utilities to which the Regulations may apply is updated (regulation 3(13) and Schedule 1);

(l)

The list of relevant States whose providers are owed duties of compliance under the Utilities Regulations is updated (regulation 3(14) and Schedule 2);

(m)

Revised forms of model notices for publication in the Official Journal are provided (regulation 3(15) and Schedule 3).