The Utilities Contracts Regulations 2006 (revoked)

PART 4 E+W+N.I. QUALIFICATION AND SELECTION OF ECONOMIC OPERATORS

General E+W+N.I.

23.—(1) Where a utility establishes criteria for the rejection of economic operators in accordance with regulations 26(1), 26(3), 27(1) or 27(2), it shall exclude any economic operator which meets those criteria when making its selection of the economic operators to be awarded a contract, to be invited to tender for, or to negotiate the contract.

(2) A utility shall make its selection of the economic operators to be awarded a contract, to be invited to tender for, or to negotiate the contract in accordance with the selection criteria established by it in accordance with regulations 26 and 27.

(3) A utility using the restricted or negotiated procedure with a call for competition shall reduce, where appropriate and in accordance with regulation 27, the number of economic operators selected in accordance with paragraphs (1) and (2) of this regulation.

(4) Where a utility makes a call for competition in respect of a contract by publishing a notice on the existence of a qualification system, when making its selection of the economic operators to be invited to tender for or to negotiate that contract, the utility shall—

(a) qualify economic operators in accordance with regulation 25; and

(b) apply the provisions of paragraphs (1), (2) and (3) which are relevant to the restricted procedure or the negotiated procedure to such qualified economic operators.

(5) A utility shall verify that the tenders submitted by the economic operators which have been selected by the utility comply with the rules and requirements applicable to tenders and shall award the contract on the basis of the criteria referred to in regulation 30.

Modifications etc. (not altering text)

C1 Reg. 23 applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), reg. 1(1)(b), Sch. 2 Pt. 1 (with reg. 1(1)(c)) (as amended (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 50 (with reg. 5)

Mutual recognition concerning administrative, technical or financial conditions E+W+N.I.

24.—(1) When using the negotiated procedure or the restricted procedure and in determining what rules and criteria are to be met by economic operators to be invited to tender for or to negotiate a contract or to qualify under a qualification system, a utility shall not—

(a) impose conditions of an administrative, technical or financial nature on some economic operators which are not imposed on others; or

(b) require tests or the submission of evidence which duplicates objective evidence already available.

(2) For the purpose of assessing an economic operator's technical ability, a utility may request that economic operator to provide—

(a) a certificate—

(i) attesting its conformity to quality assurance standards based on the relevant European standard; and

(ii) from an independent body established in any relevant State conforming to the European standard concerning certification; or

(b) any other evidence of its conformity to quality assurance measures which are equivalent to the standards referred to in sub-paragraph (a)(i).

(3) Where the contract to be awarded is a works contract or a services contract, for the purposes of verifying the economic operator's technical abilities, a utility may, where appropriate, request an indication of the environmental management measures which the economic operator will apply when performing the contract and a utility may request that economic operator to provide—

(a) a certificate—

(i) attesting its conformity to environmental management standards based on—

(aa) the Community Eco-Management and Audit Scheme M1 ; or

(bb) the relevant European standard or international standard; and

(ii) from an independent body established in any relevant State conforming to Community law or the relevant European standard or international standard concerning certification; or

(b) any other evidence of its conformity to environmental management measures which are equivalent to the standards referred to in sub-paragraph (a)(i).

Modifications etc. (not altering text)

C2 Reg. 24 applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), reg. 1(1)(b), Sch. 2 Pt. 1 (with reg. 1(1)(c)) (as amended (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 50 (with reg. 5)

Marginal Citations

M1 The Community Eco-Management and Audit Scheme (EMAS) is a management tool for companies and other organisations to evaluate, report and improve their environmental performance; for more information, see www.europa.eu.int/comm/environment/emas/index_en.htm.

Qualification system E+W+N.I.

25.—(1) A utility may establish and operate a system of qualification of economic operators if that system complies with this regulation.

(2) The utility shall permit economic operators to apply for qualification under the system at any time during its operation.

(3) The system may involve different stages of qualification and shall be based on objective rules and criteria as determined from time to time by the utility and those criteria and rules may include technical specifications in which case the provisions of regulation 12 apply.

(4) The rules and criteria referred to in paragraph (3) may include the rejection criteria referred to in regulation 26(3) and (5).

(5) Where the utility is a contracting authority, the rules and criteria referred to in paragraph (3) shall include the rejection criteria referred to in regulation 26(1).

(6) Where the criteria referred to in paragraph (3) includes requirements relating to the economic and financial capacity or the technical or professional abilities of an economic operator—

(a) the economic operator, or a group of economic operators as referred to in regulation 28, may rely on the capacity or abilities of other entities or members in the group, whatever the legal nature of the link between the economic operator or the group of economic operators and the other entities; and

(b) the economic operator or the group of economic operators shall prove to the utility that the necessary resources will be available to it, and such proof may in particular include an undertaking from those entities to that effect.

(7) In determining what rules and criteria are to be met by applicants to qualify under the system a utility shall comply with regulation 24.

(8) Where the utility makes a call for competition in respect of a contract by publishing a notice on the existence of a qualification system, it shall comply with regulation 23(4).

(9) The rules of and criteria applying to the system shall be made available on request to economic operators and any amendment of those rules and criteria shall be sent to them as the amendment is incorporated into the system.

(10) The utility may establish a system of qualification where an economic operator may qualify under the system of, or be certified by, another person, and in those circumstances the utility shall inform economic operators which apply to qualify the name of that other person.

(11) The utility shall inform applicants for qualification of the success or failure of their application within 6 months from the date of presentation of an application and, if the decision will take longer than 4 months, the utility shall inform the applicant, within 2 months of the date of presentation of the application of—

(a) the reasons justifying a longer period; and

(b) the date by which its application will be accepted or refused.

(12) The utility shall inform any applicant whose application to qualify is refused of the decision and the reasons for refusal as soon as possible and under no circumstances later than 15 days after the date of the decision.

(13) An application may only be refused if the applicant fails to meet the requirements for qualification laid down in accordance with paragraph (3).

(14) The utility shall keep a written record of qualified economic operators which may be divided into categories according to the type of contract for which the qualification is valid.

(15) The utility may cancel the qualification of an economic operator which has qualified under the qualification system only if it does not continue to meet the rules and criteria laid down in accordance with paragraph (3).

(16) The utility may not cancel a qualification unless it notifies the economic operator in writing at least 15 days before the qualification is due to be cancelled of the reasons for the proposed cancellation.

(17) The utility shall send a notice in the form of the qualification system notice in Annex VII to Commission Regulation (EC) No. 1564/2005 and containing the information relating to the qualification system therein specified to the Official Journal when the system is first established.

(18) If the utility expects to operate the system for more than 3 years, or if it has operated the system for more than 3 years, it shall send a notice as referred to in paragraph (17) on an annual basis after the year in which the system is first established.

Modifications etc. (not altering text)

C3 Reg. 25 applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), reg. 1(1)(b), Sch. 2 Pt. 1 (with reg. 1(1)(c)) (as amended (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 50 (with reg. 5)

Criteria for rejection of economic operators E+W+N.I.

26.— [F1 (1) Subject to paragraph (2), where a utility is a contracting authority, it shall treat as ineligible and shall not select an economic operator in accordance with these Regulations if the utility has actual knowledge that the economic operator or its directors or any other person who has powers of representation, decision or control of the economic operator has been convicted of any of the following offences—

(a) conspiracy within the meaning of section 1 or 1A of the Criminal Law Act 1977 or article 9 or 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 where that conspiracy relates to participation in a criminal organisation as defined in Article 2 of Council Framework Decision 2008/841/JHA;

(b) corruption within the meaning of section 1(2) of the Public Bodies Corrupt Practices Act 1889 or section 1 of the Prevention of Corruption Act 1906, where the offence relates to active corruption;

(c) the offence of bribery, where the offence relates to active corruption;

(ca) bribery within the meaning of section 1 or 6 of the Bribery Act 2010;

(d) fraud, where the offence relates to fraud affecting the European Communities' financial interests as defined by Article 1 of the Convention on the protection of the financial interests of the European Communities, within the meaning of—

(i) the offence of cheating the Revenue;

(ii) the offence of conspiracy to defraud;

(iii) fraud or theft within the meaning of the Theft Act 1968, the Theft Act (Northern Ireland) 1969, the Theft Act 1978 or the Theft (Northern Ireland) Order 1978;

(iv) fraudulent trading within the meaning of section 458 of the Companies Act 1985, article 451 of the Companies (Northern Ireland) Order 1986 or section 993 of the Companies Act 2006;

(v) fraudulent evasion within the meaning of section 170 of the Customs and Excise Management Act 1979 or section 72 of the Value Added Tax Act 1994;

(vi) an offence in connection with taxation in the European Union within the meaning of section 71 of the Criminal Justice Act 1993;

(vii) destroying, defacing or concealing of documents or procuring the execution of a valuable security within the meaning of section 20 of the Theft Act 1968 or section 19 of the Theft Act (Northern Ireland) 1969;

(viii) fraud within the meaning of section 2, 3 or 4 of the Fraud Act 2006; or

(ix) making, adapting, supplying or offering to supply articles for use in frauds within the meaning of section 7 of the Fraud Act 2006;

(e) money laundering within the meaning of section 340(11) of the Proceeds of Crime Act 2002;

(ea) an offence in connection with the proceeds of criminal conduct within the meaning of section 93A, 93B or 93C of the Criminal Justice Act 1988 or article 45, 46 or 47 of the Proceeds of Crime (Northern Ireland) Order 1996;

(eb) an offence in connection with the proceeds of drug trafficking within the meaning of section 49, 50 or 51 of the Drug Trafficking Act 1994; or

(f) any other offence within the meaning of Article 45(1) of the Public Sector Directive as defined by the national law of any relevant State.

(1A) In paragraph (1), “active corruption” means corruption as defined in Article 3 of the Council Act of 26 May 1997 or Article 3(1) of Council Joint Action 98/742/JHA.]

(2) In any case where an economic operator or its directors or any other person who has powers of representation, decision or control has been convicted of an offence described in paragraph (1), a utility may disregard the prohibition described there if it is satisfied that there are overriding requirements in the general interest which justify doing so in relation to that economic operator.

(3) Where a utility is not a contracting authority, the criteria which the utility uses for deciding not to select an economic operator may include the fact that the economic operator or its directors or any other person who has powers of representation, decision or control of the economic operator has been convicted of any of the offences in paragraph (1).

(4) A utility may apply to the relevant competent authority to obtain further information regarding the economic operator and in particular details of convictions of the offences listed in paragraph (1) if it considers it needs such information to decide on any exclusion referred to in paragraphs (1) and (3).

(5) A utility may treat an economic operator as ineligible or decide not to select an economic operator in accordance with these Regulations on one or more of the following grounds, namely that the economic operator—

(a) being an individual [F2 is a person in respect of whom a debt relief order has been made or ] is bankrupt or has had a receiving order or administration order or bankruptcy restrictions order [F3 or a debt relief restrictions order] made against him or has made any composition or arrangement with or for the benefit of his creditors or has made any conveyance or assignment for the benefit of his creditors or appears unable to pay, or to have no reasonable prospect of being able to pay, a debt within the meaning of section 268 of the Insolvency Act 1986 M2 , or article 242 of the Insolvency (Northern Ireland) Order 1989 M3 , or in Scotland has granted a trust deed for creditors or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of his estate, or is the subject of any similar procedure under the law of any other state;

(b) being a partnership constituted under Scots law has granted a trust deed or become otherwise apparently insolvent, or is the subject of a petition presented for sequestration of its estate;

(c) being a company or any other entity within the meaning of section 255 of the Enterprise Act 2002 M4 has passed a resolution or is the subject of an order by the court for the company's winding up otherwise than for the purpose of bona fide reconstruction or amalgamation, or has had a receiver, manager or administrator on behalf of a creditor appointed in respect of the company's business or any part thereof or is the subject of the above procedures or is the subject of similar procedures under the law of any other state;

(d) has been convicted of a criminal offence relating to the conduct of his business or profession;

(e) has committed an act of grave misconduct in the course of his business or profession;

(f) has not fulfilled obligations relating to the payment of social security contributions under the law of any part of the United Kingdom or of the relevant State in which the economic operator is established;

(g) has not fulfilled obligations relating to the payment of taxes under the law of any part of the United Kingdom or of the relevant State in which the economic operator is established; or

[F4 (h) is guilty of serious misrepresentation in providing any information referred to within this regulation or regulation 24 or 27, or has not provided such information in response to a request by the contracting authority.]

(6) A utility may require an economic operator to provide such information as it considers it needs to make the evaluation in accordance with paragraphs (1), (3) and (5) except that it shall accept as conclusive evidence that an economic operator does not fall within the grounds specified in paragraphs (1), (3), (5)(a), (b), (c), (d), (f) or (g) if that economic operator provides to the utility—

(a) in relation to the grounds specified in paragraphs (1), (3), (5)(a), (b), (c) or (d)—

(i) an extract from the judicial record; or

(ii) in a relevant State which does not maintain such a judicial record, a document issued by the relevant judicial or administrative authority;

(b) in relation to the grounds specified in paragraphs (5)(f) or (g), a certificate issued by the relevant competent authority; and

(c) in a relevant State where the documentary evidence specified in paragraphs (6)(a) and (b) is not issued in relation to one of the grounds specified in paragraphs (1), (3), (5)(a), (b), (c), (d), (f) or (g), a declaration on oath made by the economic operator before the relevant judicial, administrative or competent authority or a relevant notary public or Commissioner for oaths.

(7) In this regulation, “relevant” in relation to a judicial, administrative or competent authority, notary public or Commissioner for oaths means an authority nominated by, or a notary public or Commissioner for oaths in, the relevant State in which the economic operator is established.

Textual Amendments

F1 Reg. 26(1)(1A) substituted for reg. 26(1) (1.10.2011) by The Public Procurement (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/2053), regs. 1, 22(a) (with reg. 10)

F2 Words in reg. 26(5)(a) inserted (1.10.2011) by The Public Procurement (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/2053), regs. 1, 22(b)(i) (with reg. 10)

F3 Words in reg. 26(5)(a) inserted (1.10.2011) by The Public Procurement (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/2053), regs. 1, 22(b)(ii) (with reg. 10)

F4 Reg. 26(5)(h) substituted (1.10.2011) by The Public Procurement (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/2053), regs. 1, 22(c) (with reg. 10)

Modifications etc. (not altering text)

C4 Reg. 26 applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), reg. 1(1)(b), Sch. 2 Pt. 1 (with reg. 1(1)(c)) (as amended (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 50 (with reg. 5)

Marginal Citations

M2 1986 c. 45. There are amendments to this Act which are not relevant to these Regulations.

M3 S.I. 1989/2405 (N.I.19). There are amendments to this Order which are not relevant to these Regulations.

M4 2002 c. 40. There are amendments to this Act which are not relevant to these Regulations.

Criteria for selection of economic operators E+W+N.I.

27.—(1) A utility using the open procedure shall establish selection criteria on the basis of objective criteria and rules which it determines and which it makes available to economic operators which request them.

(2) A utility using the restricted procedure or the negotiated procedure, with or without a call for competition, shall make the selection of the economic operators to be invited to tender for or to negotiate the contract on the basis of objective criteria and rules which it determines and which it makes available to economic operators which request them.

(3) Where the criteria referred to in paragraphs (1) and (2) include requirements relating to the economic and financial capacity or the technical or professional abilities of the economic operator—

(a) the economic operator, or a group of economic operators as referred to in regulation 28 may rely on the capacity or abilities of other entities or members in the group, regardless of the legal nature of the link between the economic operator or the group of economic operators and the other entities; and

(b) the economic operator, or the group of economic operators shall prove to the utility that the resources necessary to perform the contract will be available to it, and such proof may in particular include an undertaking from those entities to that effect.

(4) Without prejudice to the generality of paragraph (2), the criteria may be based on the need of the utility to reduce the number of economic operators selected to tender for or to negotiate the contract to a level which is justified by the characteristics of the award procedure and the resources required to complete it.

(5) The utility shall take account of the need to ensure adequate competition in determining the number of economic operators selected to tender for or to negotiate the contract.

Modifications etc. (not altering text)

C5 Reg. 27 applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), reg. 1(1)(b), Sch. 2 Pt. 1 (with reg. 1(1)(c)) (as amended (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 50 (with reg. 5)

Consortia E+W+N.I.

28.—(1) In this regulation a “ consortium” means two or more persons, at least one of whom is an economic operator, acting jointly for the purpose of being awarded a contract.

(2) Subject to paragraph (3), a utility shall not treat the tender of a consortium as ineligible nor decide not to include a consortium amongst those economic operators from which it will make the selection of economic operators to be invited to tender for or to negotiate a contract or to be admitted to a dynamic purchasing system on the grounds that the consortium has not formed a legal entity for the purpose of tendering for or negotiating the contract or being admitted to a dynamic purchasing system.

(3) Where a utility awards a contract to a consortium it may, if it is justified for the satisfactory performance of the contract, require the consortium to form a legal entity before entering into, or as a term of, the contract.

(4) In these Regulations references to an economic operator where the economic operator is a consortium include a reference to each person who is a member of that consortium.

Modifications etc. (not altering text)

C6 Reg. 28 applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), reg. 1(1)(b), Sch. 2 Pt. 1 (with reg. 1(1)(c)) (as amended (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 50 (with reg. 5)

Corporations E+W+N.I.

29.—(1) A utility shall not treat the tender of a services provider as ineligible nor decide not to include a services provider amongst those services providers from which it will make the selection of services providers to be invited to tender for or to negotiate a contract or to be admitted to a dynamic purchasing system on the ground that under the law of any part of the United Kingdom the services provider is required to be an individual, a corporation or other type of body, if under the law of the relevant State in which the services provider is established, that services provider is authorised to provide such services.

(2) In the case of—

(a) a services contract;

(b) a works contract; or

(c) a supply contract which includes services or siting and installation of operations;

a utility may require an economic operator which is not an individual to indicate in the tender, the indicative tender or in the request to be selected to tender for or to negotiate the contract, the names and relevant professional qualifications of the staff who will be responsible for the performance of the contract.

Modifications etc. (not altering text)

C7 Reg. 29 applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), reg. 1(1)(b), Sch. 2 Pt. 1 (with reg. 1(1)(c)) (as amended (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 50 (with reg. 5)

[F5 Notification E+W+N.I.

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.]

Textual Amendments

F5 Reg. 29A inserted (20.12.2009) by The Utilities Contracts (Amendment) Regulations 2009 (S.I. 2009/3100), regs. 1(1), 7 (with reg. 13)

Modifications etc. (not altering text)

C8 Reg. 29A applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), reg. 1(1)(b), Sch. 2 Pt. 1 (with reg. 1(1)(c)) (as amended (18.4.2016) by The Public Procurement (Amendments, Repeals and Revocations) Regulations 2016 (S.I. 2016/275), reg. 1(1), Sch. 2 para. 50 (with reg. 5)