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The Utilities Contracts (Scotland) Regulations 2016

S.S.I. 2016/49 · Made 26 January 2016 · Extends to Scotland

Up to date with all changes known to legislation.gov.uk, revised to 24 March 2026.

Public Procurement

Made 26th January 2016

Laid before the Scottish Parliament 28th January 2016

Coming into force in accordance with regulation 1

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972f1 and all other powers enabling them to do so.

C1These Regulations make provision for a purpose mentioned in that section and it appears to the Scottish Ministers that it is expedient for the following EU instruments to be construed as references to those EU instruments or provisions of those EU Instruments (as appropriate) as amended from time to time where they are expressly mentioned as such in these Regulations—

(a)

Council Regulation (EEC) No 2913/92 establishing the Community Customs Codef2;

(b)

Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signaturesf3;

(c)

Regulation (EC) No. 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabularyf4;

(d)

Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EECf5;

(e)

Commission Decision 2009/767/EC setting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2009) 7806)f6;

(f)

Commission Decision 2011/130/EU establishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081)f7;

(g)

Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EECf8;

(h)

Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Councilf9;

(i)

Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in member States concerning the provision of audio-visual media servicesf10; and

(j)

Directive 2014/25/EU of the European Parliament and of the Council on procurement entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/ECf11,

and they are to be construed accordingly.C2

Annotations to the whole text

Modifications

C1

Regulations: power to amend conferred (23.5.2024) by Procurement Act 2023 (c. 54), ss. 115(3)(4), 127(2); S.I. 2024/716, reg. 2(1)

C2

Regulations applied (24.2.2025) by Procurement Act 2023 (c. 54), ss. 119(2)(b), 127(2); S.I. 2024/716, Sch. (as amended by S.I. 2024/959, regs. 1(2), 2(7)(a))

Footnotes

f1

1972 c.68. Section 2(2) was amended by the Scotland Act 1998 (c.46) (“the 1998 Act”), Schedule 8, paragraph 15(3) (which was amended by section 27(4) of the Legislative and Regulatory Reform Act 2006 (c.51) (“2006 Act”)). Section 2(2) was also amended by section 27(1)(a) of the 2006 Act and by the European Union (Amendment) Act 2008 (c.7) (“2008 Act”), section 3(3) and Schedule, Part 1. The functions conferred upon the Minister of the Crown under section 2(2), insofar as within devolved competence, were transferred to the Scottish Ministers by virtue of section 53 of the 1998 Act. Paragraph 1A of Schedule 2 was inserted by the 2006 Act, section 28 and was amended by the 2008 Act, Schedule, Part 1.

f2

OJ L 302, 19.10.1992, p.1; last amended by Council Regulation (EU) No 517/2013 (OJ L 158, 10.6.2013, p.1).

f3

OJ L 13, 19.1.2000, p.12, amended by Regulation (EC) No 1137/2008 (OJ L 311, 21.11.2008, p.1).

f4

OJ L 340, 16.12.2002, p.1.

f5

OJ L 145, 30.4.2004, p.1.

f6

OJ L 274, 20.10.2009, p.36, last amended by Commission Decision 2013/662/EU (OJ L 306, 16.11.2013, p.21).

f7

OJ L 53, 26.2.2011, p.66.

f8

OJ L 88, 4.4.2011, p.5; last amended by Council Delegated Regulation (EU) No 574/2004 (OJ L 159, 28.5.2014, p.41).

f9

OJ L 316, 14.11.2012, p.1.

f10

OJ L 95, 15.4.2010, p.1.

f11

OJ L 94, 28.3.2014, p.243.

Contents

  1. Part 1: GENERAL
  2. Chapter 1: CITATION, COMMENCEMENT, EXTENT, DEFINITIONS AND SUBJECT-MATTER
  3. 1Citation, commencement and extent
  4. 2Interpretation
  5. 3Subject-matter and application of these Regulations
  6. 3ARegulation of procurement by UK contracting authorities
  7. 3BRegulation of procurement under cross-border arrangements
  8. 4Utilities
  9. 5Mixed procurement covering the same activity
  10. 6Procurement covering several activities
  11. Chapter 2: ACTIVITIES
  12. 7Common Provisions
  13. 8Gas and heat
  14. 9Electricity
  15. 10Water
  16. 11Transport services
  17. 12Ports and airports
  18. 13Postal services
  19. 14Extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels
  20. Chapter 3: MATERIAL SCOPE
  21. Thresholds
  22. 15Thresholds
  23. 15AReview and amendment of certain thresholds
  24. 16Estimating value
  25. Excluded contracts and design contests; special provisions for procurement involving defence and security aspects
  26. Exclusions applicable to all utilities and special exclusions for the water and energy sectors
  27. 17Exclusion: Contracts awarded for the purpose of resale or lease to third parties
  28. 18Exclusion: Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity outside the United Kingdom
  29. 19Exclusion: Contracts awarded and design contests organised pursuant to international rules
  30. 20Exclusion: Specific exclusions for service contracts
  31. 21Exclusion: Service contracts awarded on the basis of an exclusive right
  32. 22Exclusion: Contracts awarded by certain utilities for the purchase of water and for the supply of energy or of fuels for the production of energy
  33. Procurement involving defence and security aspects
  34. 23Defence and security
  35. 24Mixed procurement covering the same activity and involving defence and security aspects
  36. 25Procurement covering several activities and involving defence or security aspects
  37. 26Contracts and design contests involving defence and security aspects which are awarded or organised pursuant to international rules
  38. Special relations (cooperation, affiliated undertakings and joint ventures)
  39. 27Exclusion: contracts between contracting authorities
  40. 28Exclusion: contracts awarded to an affiliated undertaking
  41. 29Exclusion: Contracts awarded to a joint venture or to a utility forming part of a joint venture
  42. 30Notification of information Repealed
  43. Specific situations
  44. 31Research and development services
  45. Activities directly exposed to competition and related procedural provisions
  46. 32Activities directly exposed to competition
  47. 33Procedure for establishing whether regulation 32(2)(b) is applicable Repealed
  48. Chapter 4: GENERAL PRINCIPLES
  49. 34Principles of procurement
  50. 35Economic operators
  51. 36Reserved contracts
  52. 37Confidentiality
  53. 38Rules applicable to communication
  54. 38APowers to amend regulation 38
  55. 39Nomenclatures
  56. 40Conflicts of interest
  57. Part 2: RULES APPLICABLE TO CONTRACTS
  58. Chapter 1: PROCEDURES
  59. 41Conditions relating to international agreements by which the EU is bound, other than the GPA Repealed
  60. 41AConditions relating to the GPA
  61. 41BConditions relating to international agreements by which the United Kingdom is bound, other than the GPA
  62. 42Choice of procedures
  63. 43Open Procedure
  64. 44Restricted Procedure
  65. 45Negotiated procedure with prior call for competition
  66. 46Competitive Dialogue
  67. 47Innovation Partnership
  68. 48Use of the negotiated procedure without prior call for competition
  69. Chapter 2: TECHNIQUES AND INSTRUMENTS FOR ELECTRONIC AND AGGREGATED PROCUREMENT
  70. 49Framework Agreements
  71. 50Dynamic Purchasing Systems
  72. 51Electronic Auctions
  73. 52Electronic catalogues
  74. 53Centralised purchasing activities and central purchasing bodies
  75. 54Occasional joint procurement
  76. 55Procurement involving utilities from different member States Repealed
  77. Chapter 3: CONDUCT OF THE PROCEDURE
  78. Preparation
  79. 56Preliminary market consultation
  80. 57Prior involvement of candidates or tenderers
  81. 58Technical specifications
  82. 59Labels
  83. 60Test reports, certificates and other means of proof
  84. 61Communication of technical specifications
  85. 62Variants
  86. 63Division of contracts into lots
  87. 64Setting time limits
  88. Publication and transparency
  89. 65Periodic indicative notices
  90. 66Notices on the existence of a qualification system
  91. 67Contract notices
  92. 68Contract award notices
  93. 69Publication on the UK e-notification service
  94. 70Publication otherwise than on the UK e-notification service
  95. 71Electronic availability of procurement documents
  96. 72Invitations to candidates
  97. 73Informing applicants for qualification, candidates and tenderers
  98. Choice of participants and award of contracts
  99. 74General principles
  100. Qualification and qualitative selection
  101. 75Qualification systems
  102. 76Criteria for qualitative selection
  103. 77Reliance on the capacities of other entities
  104. 78Use of exclusion grounds and selection criteria provided for under the Public Contracts (Scotland) Regulations
  105. 79Quality assurance standards and environmental management standards
  106. Award of the Contract
  107. 80Contract award criteria
  108. 81Life-cycle costing
  109. 82Abnormally low tenders
  110. Tenders comprising products originating in third countries and relations with those countries
  111. 83Tenders comprising products originating in third countries Repealed
  112. Chapter 4: CONTRACT PERFORMANCE
  113. 84Conditions for performance of contracts
  114. 84AElectronic invoicing
  115. 85Subcontracting
  116. 86Modification of contracts during their term
  117. 87Termination of contracts
  118. Part 3: PARTICULAR PROCUREMENT REGIMES
  119. Chapter 1: SOCIAL AND OTHER SPECIFIC SERVICES
  120. 88Award of contracts for social and other specific services
  121. 89Publication of notices
  122. 90Principles of awarding contracts
  123. Chapter 2: RULES GOVERNING DESIGN CONTESTS
  124. 91Scope of Chapter
  125. 92Notices
  126. 93Rules on the organisation of design contests and the selection of participants and the jury
  127. 94Decisions of the jury
  128. Part 4: INFORMATION AND DOCUMENTATION
  129. 95Retention of contract copies
  130. 96Reporting and documentation requirements
  131. Part 5: REMEDIES
  132. Chapter 1: FACILITATION OF REMEDIES
  133. 97Scope of Chapter
  134. 98Notices of decisions to award a contract or conclude a framework agreement
  135. 99Standstill period
  136. Chapter 2: APPLICATIONS TO THE COURT
  137. 100Duty owed to economic operators , including those from countries with whom the EU has a relevant international agreement other than the GPA
  138. 100ADuty owed to economic operators from GPA parties
  139. 100BDuty owed to economic operators from countries with whom the United Kingdom has an international agreement, other than the GPA
  140. 101Enforcement of duties through the courts
  141. 102Automatic Suspension of utility’s power to proceed with contract award
  142. 103Powers and duties of the court
  143. 104Ineffectiveness orders
  144. 105Powers of the court: ineffectiveness order
  145. 106General interest grounds for not making a declaration of ineffectiveness
  146. 107Other orders
  147. 108Financial penalties
  148. Part 5A: AMENDING THESE REGULATIONS
  149. 108AGeneral provisions about regulations under these Regulations
  150. Part 6: REVOCATIONS, CONSEQUENTIAL AMENDMENTS, SAVINGS AND TRANSITIONAL PROVISIONS
  151. 109Interpretation of Part 6
  152. 110Revocations and consequential amendments
  153. 111Transitional provision and saving: where procurement commenced before 18th April 2016
  154. 112Transitory provision: prior to full commencement of regulation 38(1) to (7)
  155. 113Transitory provision: temporary exemption
  156. Signature
  157. Schedule A1PARTIES TO THE GPA
  158. Schedule 1ACTIVITIES CONSTITUTING WORKS
  159. Schedule 2SOCIAL AND OTHER SPECIFIC SERVICES
  160. Schedule 2AINTERNATIONAL TRADE AGREEMENTS
  161. Schedule 3: CONSEQUENTIAL AND MISCELLANEOUS AMENDMENTS TO SUBORDINATE LEGISLATION
  162. 1Cleaner Road Transport Vehicles (Scotland) Regulations 2010
  163. 2Defence and Security Public Contracts Regulations 2011 Repealed
  164. 3Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013
  165. Schedule 4Procurement by UK contracting authorities
  166. Schedule 5Procurement under cross-border arrangements
  167. Explanatory note