Regulation 7 – Utilities

Commentary

Regulation 7 transposes Article 7 of Directive 2014/24/EU, excluding the application of Part 2 of the Public Contracts Regulations 2015 to a number of activities under the Utilities sector which are regulated by Directive 2014/25/EU. Article 7 of Directive 2014/24/EU establishes a direct cross-reference to Dir 2014/25/EU and excludes from its own rules the public contracts and design contests that are either covered by Directive 2014/25/EU or expressly excluded from its scope of application. Directive 2014/25/EU was transposed by the Utilities Contracts Regulations 2016.

The current drafting of Regulation 7 (as amended by the Public Procurement (Amendments, Repeals and Revocations) Regulations 2016) is virtually identical to Article 7 of Directive 2014/24/EU. That was not the case with the original 2015 which followed instead the structure (and content) set forth in Utilities Contracts Regulations 2006.

The exclusion of application by Regulation 7 is limited to Part 2, so theoretically Parts 3 to 5 are applicable to contracts in the Utilities sector. Most chapters in Parts 3 to 5 however restrict their application to contracts covered by Part 2 and as such will not pose a problem. That is not the case of Chapter 6 (remedies) and Chapter 9 (invoice payments).

Last modified: July 4, 2016 by Pedro Telles

Contracts in the water, energy, transport and postal services sectors

7.—(1) This Part does not apply to public contracts or design contests which—

(a)under the UCR 2016 are awarded or organised by contracting authorities—

(i)exercising one or more of the activities referred to in regulations 9 to 15 of those Regulations, and

(ii)for the pursuit of those activities;

(b)are excluded from the scope of the UCR 2016 by regulations 18, 23 or 34 of those Regulations; or

(c)are awarded or organised—

(i)by a contracting authority which provides postal services within the meaning of regulation 14 of the UCR 2016, and

(ii)for the pursuit of any of the following activities—

(aa)added value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services and transmission of registered electronic mail);

(bb)financial services which are covered by CPV codes 66100000-1 to 66720000-3 and by regulation 21(1)(d) of the UCR 2016, including in particular postal money orders and postal giro transfers;

(cc)philatelic services;

(dd)logistics services (services combining physical delivery and warehousing, or either of them, with other non-postal functions).

(2) In this regulation, “the UCR 2016” means the Utilities Contracts Regulations 2016.”.