"to award" means to accept an offer made in relation to a proposed contract;

"buyer profile" means a page on the internet set up by a utility containing one or more of the following: periodic indicative notices, information on ongoing invitations to tender, prospective and concluded contracts, cancelled procedures and useful general information, such as a contact point, a telephone number, a facsimile number, a postal address or an e-mail address;

"carrying out" in relation to a work or works means the construction or the design and construction of that work or those works;

"central purchasing body" means a contracting authority and which—

(a) acquires goods or services intended for one or more utilities;

(b) awards contracts intended for one or more utilities; or

(c) concludes framework agreements for work, works, goods or services intended for one or more utilities;

"the Commission" means the European Commission;

"local authority" means—

(a) in relation to a local authority in England, an authority referred to in regulation 3(2) of the Public Contracts Regulations 2006;

(b) in relation to a local authority in Wales, an authority referred to in regulation 3(3) of those Regulations;

(c) in relation to a local authority in Scotland, an authority referred to in regulation 3(4) of those Regulations; and

(d) in relation to a local authority in Northern Ireland, an authority referred to in regulation 3(5) of those Regulations;

"network" in relation to a service in the field of transport, means a system operated in accordance with conditions laid down by or under the law in any part of England, Wales or Northern Ireland including such conditions as the routes to be served, the capacity to be made available and the frequency of the service;

"public undertaking" means a person over whom one or more contracting authorities are able to exercise directly or indirectly a dominant influence by virtue of—

(a) their ownership of that person;

(b) their financial participation in that person; or

(c) the rights accorded to them by the rules which govern that person;

"relevant person" means a person who is—

(a) a contracting authority;

(b) a public undertaking; or

(c) not a contracting authority or a public undertaking, but whose activities include an activity specified in the second column of Schedule 1 and who carries out that activity on the basis of a special or exclusive right; and

"special or exclusive rights" means rights granted by a competent authority by way of any legislative, regulatory or administrative provision, the effect of which is to limit the exercise of activities specified in the second column of Schedule 1 to one or more entities, and which substantially affects the ability of other entities to carry out such activities.

    (3) For the purposes of the definition of "public undertaking" a contracting authority is considered to be able to exercise a dominant influence over a person when it directly or indirectly—

(a) possesses the majority of the issued share capital of that person or controls the majority of the voting power attached to the issued share capital of that person; or

(b) may appoint—


(i) more than half of the individuals who are ultimately responsible for managing that person's affairs;

(ii) more than half of its members; or

(iii) in the case of a group of individuals, more than half of those individuals.

(a) treat economic operators equally and in a non-discriminatory way; and

(b) act in a transparent way.

(a) Part 1 and Parts 9 and 10 of these Regulations apply; and

(b) the following provisions in Parts 2 to 8 apply—


(i) regulation 12 (technical specifications in contract documents);

(ii) regulation 32 (contract award notices);

(iii) regulation 38 (statistical and other reports);

(iv) regulation 39 (provision of reports); and

(v) regulation 40 (publication of notices).

    (3) A utility shall not enter into separate contracts with the intention of avoiding the application of these Regulations or the Public Contracts Regulations 2006, where applicable.

    (4) Where a utility seeks offers in relation to a contract for the purpose of carrying out—

(a) one or more activities specified in the second column of Schedule 1; and

(b) one or more activities not specified in the second column of Schedule 1 but to which the Public Contracts Regulations 2006 apply;

and it is impossible, on objective grounds, to determine the activity for which the contract is principally intended, the utility shall award the contract in accordance with the Public Contracts Regulations 2006.

    (5) Where a utility seeks offers in relation to a contract for the purpose of carrying out—

(a) one or more activities specified in the second column of Schedule 1; and

(b) one or more activities not specified in the second column of Schedule 1 nor subject to the Public Contracts Regulations 2006;

(a) other than for the purpose of carrying out an activity specified in the Part of Schedule 1 in which the utility is specified or in respect of a proposed contract referred to in regulation 5(5);

(b) for the purpose of carrying out any activity outside the territory of the Communities but only if the carrying out of that activity does not involve the physical use of a network or geographical area within the Communities;

(c) for the purpose of acquiring goods, works or services in order to sell, hire or provide them to another person unless the utility has a special or exclusive right to sell, hire or provide such goods, works or services or other persons are not free to sell, hire or provide them under the same conditions;

(d) which is classified as secret or where the performance of the contract must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom requires it;

(e) where different rules govern the procedures leading to the award of the contract and it is to be entered into in accordance with—


(i) an international agreement concluded in conformity with the EC Treaty to which the United Kingdom and a State which is not a relevant State are parties and it relates to goods or the carrying out of a work or works or the provision of services intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops; or

(iii) the contract award procedures of an organisation of which only States are members (an "international organisation") or of which only States or international organisations are members;



(f) by a utility which engages in an activity specified in Category 1 of Schedule 1 for the purchase of water;

(g) by a utility which engages in an activity specified in Categories 2 to 6 of Schedule 1 for the purchase of energy or of fuel for the production of energy;

(h) by a utility specified in column 1 of Part S of Schedule 1 for the purpose of engaging in an activity specified in column 2 of that Part of that Schedule where that activity is provided in a geographical area in which other persons are free to provide the service under the same conditions as the utility;

(i) under which services are to be provided by a contracting authority, or by a person which is a contracting authority in another relevant State because that contracting authority or person has an exclusive right—



(i) to provide the services; or

(ii) which is necessary for the provision of the services;



in accordance with any published law, regulation or administrative provision which is compatible with the EC Treaty;

(j) for the acquisition of land, including existing buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land;

(k) for arbitration or conciliation services;

(l) for financial services in connection with the issue, purchase, sale or transfer of securities or other financial instruments, in particular transactions by the utility to raise money or capital;

(m) for employment and other contracts of service;

(n) for research and development services unless—



(i) the benefits are to accrue exclusively to the utility for its use in the conduct of its own affairs; and

(ii) the services are to be wholly paid for by the utility; or



(o) which is a works concession contract or a services concession contract which is awarded by a utility carrying out an activity specified in the second column of Schedule 1, where the concession contract is awarded for carrying out or providing that activity.

"affiliated undertaking" means—

(a) the Office of Government Commerce has notified the Commission in accordance with Article 30 of the Utilities Directive of all the relevant facts and—


(i) the Commission has adopted a decision that an exemption should apply in response to such a notification; or

(ii) the Commission has not adopted a decision in relation to such a notification within the time limits specified in Article 30(6) of the Utilities Directive;



(b) the Commission has, on the application of a utility—



(i) adopted a decision that an exemption should apply to the activity concerned; or

(ii) has not adopted such a decision within the time limit specified in Article 30(6) of the Utilities Directive; or



(c) the Commission has, of its own initiative—



(i) adopted a decision that an exemption should apply to the activity concerned; or

(ii) has not adopted such a decision within the time limit specified in Article 30(6) of the Utilities Directive and for the purposes of this sub-paragraph that time limit commences on the date that the Commission has informed the Office of Government Commerce in accordance with that Article that the matter was under consideration.

    (2) A utility may make an application to the Commission in accordance with Article 30 of the Utilities Directive for a decision that an activity that utility carries out or is proposing to carry out which is specified in the second column of Schedule 1 is directly exposed to competition on markets to which access is not restricted.

    (3) An application made by a utility in accordance with paragraph (2) shall be in writing and shall specify—

(a) the activity in respect of which the notification or application is made;

(b) the relevant facts and in particular, any law, regulation, administrative provision or agreement concerning compliance with the conditions that the activity is not directly exposed to competition on markets to which access is not restricted; and

(c) whether the activity concerned is subject to any of the Community legislation referred to in Annex XI to the Utilities Directive and where it is, the relevant implementing legislation in the UK.

"supported business" means a service where more than 50% of the workers are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported businesses" shall be interpreted accordingly;

"supported employment programme" means a scheme under which work is provided for disabled persons and where more than 50% of the workers so supported are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported employment programmes" shall be interpreted accordingly; and

"supported factory" means an establishment where more than 50% of the workers are disabled persons who by reason of the nature or severity of their disability are unable to take up work in the open labour market and "supported factories" shall be interpreted accordingly.

(a) the sum mentioned in Article 16(a) of the Utilities Directive for a supply contract or a services contract; and

(b) the sum mentioned in Article 16(b) of the Utilities Directive for a works contract.

    (3) The value in pounds sterling of any amount expressed in these Regulations in euro is calculated by reference to the rate for the time being applying for the purposes of the Utilities Directive as published from time to time in the Official Journal.

    (4) For the purposes of paragraph (1) the estimated value of a contract is the value of the total consideration payable, net of value added tax (calculated in accordance with this regulation), which the utility expects to be payable under the contract.

    (5) In determining the value of the total consideration which the utility expects to be payable under a contract it shall, where appropriate, take account of—

(a) any form of option;

(b) any renewal of the contract;

(c) any prize or payment awarded by the utility to the economic operator;

(d) the premium payable and other forms of remuneration for insurance services;

(e) fees, commissions, interest or other forms of remuneration payable for banking and other financial services; or

(f) fees, commissions or other forms of remuneration payable for design services.

    (6) For the purposes of paragraph (1) the estimated value of a supply contract for the hire of goods is—

(a) the value of the consideration which the utility expects to be payable under the contract if the term of the contract is fixed for 12 months or less;

(b) the value of the consideration which the utility expects to be payable under the contract if the term of the contract is fixed for more than 12 months; or

(c) the value of the monthly consideration payable under the contract multiplied by 48 if the term of the contract is indefinite or uncertain at the time the contract is entered into.

    (7) For the purposes of paragraph (1) the estimated value of a services contract which does not indicate a total price, is—

(a) the aggregate of the value of the consideration which the utility expects to be payable under the contract if the term of the contract is fixed for 48 months or less; or

(b) the value of the consideration which the utility expects to be payable in respect of each month of the period multiplied by 48 if the term of the contract is fixed for more than 48 months, or over an indefinite period.

    (8) Subject to paragraphs (9) and (12), where a utility has a single requirement for goods or services or for the carrying out of a work or works and a number of contracts have been entered into or are to be entered into to fulfil that requirement, the estimated value for the purposes of paragraph (1) of each of those contracts is the aggregate of the value of the consideration which the utility expects to be payable under each of those contracts.

    (9) Paragraph (8) does not apply to any contract (unless the utility chooses to apply that paragraph to a contract) if the contract has an estimated value of less than—

(a) 80,000 euro for a services contract or a supply contract; or

(b) 1,000,000 euro for a works contract;

and the aggregate value of that contract and any other such contract is less than 20% of the aggregate of the value of the consideration which the utility has given or expects to be payable under all the contracts entered into or to be entered into to fulfil the single requirement for goods, services or for the carrying out of a work or works.

    (10) Subject to paragraph (12), where a utility has a requirement over a period for goods or services and for that purpose enters into—

(a) a series of contracts; or

(b) a contract which under its terms is renewable;

the estimated value for the purposes of paragraph (1) of the contract shall be the amount calculated in accordance with paragraph (11).

    (11) The utility shall calculate the amount referred to in paragraph (10) either—

(a) by taking the aggregate of the value of the consideration payable under contracts which—


(i) have similar characteristics; and

(ii) are for the same type of goods or services;



during the last financial year of the utility ending before, or the period of 12 months ending immediately before, the relevant time, and by adjusting that amount to take account of any expected changes in quantity and cost of the goods to be purchased or hired or services to be provided in the period of 12 months commencing with the relevant time; or

(b) by estimating the aggregate of the value of the consideration which the utility expects to be payable under contracts which have similar characteristics, and which are for the same type of goods or services during—



(i) in the case of supply contracts, the period of 12 months from the first date of the delivery of the goods to be purchased or hired, or in the case of services contracts, from the first date on which the services will be performed; or

(ii) the financial year if that is longer than 12 months.

    (12) Notwithstanding paragraphs (8) and (10), in relation to a supply contract or a services contract, when the goods or services are required for the sole purposes of a discrete operational unit within the organisation of a utility and—

(a) the decision whether to procure those goods or services has been devolved to such a unit; and

(b) that decision is taken independently of any other part of the utility;

the valuation methods described in paragraphs (8) and (11) shall be adapted by aggregating only the value of the consideration which was payable or the utility expects to be payable, as the case may be, under a supply contract or a services contract which was or is required for the sole purpose of that unit.

    (13) Where a utility intends to provide any goods or services to the economic operator awarded a works contract for the purpose of carrying out that contract, the value of the consideration of the works contract for the purposes of paragraphs (2) and (8) shall be taken to include the estimated value at the relevant time of those goods and services.

    (14) Where the estimated value of a works contract is less than the threshold and where goods or services which are not necessary for its execution are to be purchased, hired or provided under it, the estimated value of the contract for the purposes of paragraph (1) shall be the value of the consideration which the utility expects to give for the goods and services and the relevant contract shall be treated as a supply or services contract, as appropriate.

    (15) Where under a contract both goods are to be purchased or hired and services are to be provided, the estimated value of the contract is the aggregate of the values of the consideration attributable to the purchase or hire of the goods including any siting and installation of the goods and of the consideration attributable to the provision of the services, regardless of whether the estimated value of either the goods or services is less than the threshold specified in paragraph (2).

    (16) The estimated value of a dynamic purchasing system or of a framework agreement is the aggregate of the values estimated in accordance with this regulation of all the contracts which could be entered into under the framework agreement or dynamic purchasing system.

    (17) The relevant threshold for the purposes of paragraph (1) for a dynamic purchasing system or a framework agreement is the threshold for—

(a) a works contract, where that framework agreement or dynamic purchasing system relates to the carrying out of work or works;

(b) a services contract where that framework agreement or dynamic purchasing system relates to the provision of services; or

(c) a supply contract where that framework agreement or dynamic purchasing system relates to the purchase or hire of goods.

    (18) A utility shall not enter into separate contracts nor exercise a choice under a valuation method with the intention of avoiding the application of these Regulations to those contracts.

    (19) The relevant time for the purposes of paragraphs (1), (11) and (13) means—

(a) if the utility selects economic operators to tender for or to negotiate the contract in accordance with a qualification system established in accordance with regulation 25, the date on which the selection commences;

(b) if the utility satisfies the requirement that there be a call for competition by indicating the intention to award the contract in a periodic indicative notice in accordance with regulation 16(2)(a)(i), the date on which the notice is sent to the Official Journal; or

(c) in any other case, the date on which a contract notice would be sent to the Official Journal if the requirement that there be a call for competition applied and the utility decided to satisfy that requirement by sending such a notice.

"common technical specification" means a technical specification drawn up in accordance with a procedure recognised by the member States with a view to uniform application in all member States and which has been published in the Official Journal;

"European standard" means a standard adopted by a European standards organisation and made available to the general public;

"European technical approval" means an approval of the fitness for use of a product, issued by an approval body designated for the purpose by a member State, following a technical assessment of whether the product fulfils the essential requirements for building works, having regard to the inherent characteristics of the product and the defined conditions of application and use;

"international standard" means a standard adopted by an international standards organisation and made available to the general public;

"British standard" means a standard adopted by a British standards organisation and made available to the general public;

"recognised bodies" means test and calibration laboratories and certification and inspection bodies which comply with applicable European standards and "recognised body" shall be interpreted accordingly;

"standard" means a technical specification approved by a recognised standardisation body for repeated and continuous application, compliance with which is not compulsory and which is an international standard, a European Standard or a British standard;

"technical reference" means any product produced by European standardisation bodies, other than official standards, according to procedures adopted for the development of market needs; and

"technical specifications" means—

(a) in the case of a services contract or a supply contract, a specification in a document defining the required characteristics of materials, goods or services, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of a product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods and conformity assessment procedures; and

(b) in the case of a works contract, the totality of the technical prescriptions contained, in particular, in the contract documents, defining the characteristics required of the work, works, materials or goods, which permits the work, works, materials or goods to be described in a manner such that it fulfils the use for which it is intended by the utility and these characteristics shall include—


(i) levels of environmental performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions and production processes and methods;

(ii) rules relating to design and costing, the test, inspection and acceptance conditions for work or works and methods or techniques of construction; and

(iii) all other technical conditions which the utility is in a position to prescribe, under general or specific regulations, in relation to the finished work or works and to the materials or parts which they involve.

    (2) Where a utility wishes to lay down technical specifications which must be met by—

(a) the services to be provided under a services contract and the materials and goods used in or for it;

(b) the goods to be purchased or hired under a supply contract; or

(c) the work or works to be carried out under a works contract and the materials and goods used in or for it;

it shall specify those technical specifications in the contract documents.

    (3) When laying down technical specifications in accordance with paragraph (2), a utility shall wherever possible take into account accessibility criteria for disabled persons or the suitability of the design for all users.

    (4) A utility shall ensure that technical specifications afford equal access to economic operators and do not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

    (5) Subject to technical requirements which are mandatory in the United Kingdom and to the extent that those requirements are compatible with Community obligations, a utility shall define the technical specifications required for a contract in accordance with paragraphs (6), (7), (8) or (9).

    (6) A utility may define the technical specifications referred to in paragraph (5)—

(a) by reference to technical specifications in the following order of preference—


(i) British standards transposing European standards;

(ii) European technical approvals;

(iii) common technical specifications;

(iv) international standards; or

(v) other technical reference systems established by the European standardisation bodies; or



(b) in the absence of the technical specifications referred to in sub-paragraph (a), by reference to the following technical specifications—



(i) British standards;

(ii) British technical approvals; or

(iii) British technical specifications relating to the design, calculation and execution of the work or works and use of the products;



and each reference to a technical specification made in accordance with this paragraph shall be accompanied by the words "or equivalent".

    (7) A utility may define the technical specifications referred to in paragraph (5) in terms of performance or functional requirements (which may include environmental characteristics) provided that the requirements are sufficiently precise to allow an economic operator to determine the subject of the contract and a utility to award the contract.

    (8) A utility may define the technical specifications referred to in paragraph (5) by defining performance and functional requirements as referred to in paragraph (7) with reference to the technical specifications referred to in paragraph (6) as a means of presuming conformity with such performance or functional requirements.

    (9) A utility may define the technical specifications referred to in paragraph (5) by reference to technical specifications referred to in paragraph (6) for certain characteristics and by reference to performance or functional requirements referred to in paragraph (7) for other characteristics.

    (10) Where a utility defines technical specifications as referred to in paragraph (6), it shall not reject an offer on the basis that the materials, goods or services offered do not comply with those technical specifications if an economic operator proves to the satisfaction of the utility by any appropriate means that the one or more solutions that economic operator proposes in its tender satisfy the requirements of the technical specifications in an equivalent manner.

    (11) Where a utility defines technical specifications in terms of performance or functional requirements as referred to in paragraph (7), it shall not reject an offer for materials, goods, services, work or works which complies with—

(a) a British standard transposing a European standard;

(b) a European technical approval;

(c) a common technical specification;

(d) an international standard; or

(e) a technical reference system established by a European standardisation body;

if those technical specifications address the performance or functional requirements referred to by the utility and the economic operator proves in its tender to the satisfaction of the utility by any appropriate means that the work, works, materials, goods or services meet the performance or functional requirements of the utility.

    (12) Where a utility lays down environmental characteristics in terms of performance or functional requirements as referred to in paragraph (7), it may use the detailed technical specifications, or if necessary, parts thereof, as defined by European, national or multi-national eco-labels or by any other eco-label, provided that—

(a) those technical specifications are appropriate to define the characteristics of the materials, goods or services that are the object of the contract;

(b) the eco-label requirements are drawn up on the basis of scientific information;

(c) the eco-label is adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations, are able to participate; and

(d) the technical specifications are accessible to any party interested.

    (13) A utility may indicate in the contract documents that the materials, goods or services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents and shall accept any other appropriate means of proof that the materials, goods or services comply with those technical specifications.

    (14) The term "appropriate means" referred to in paragraphs (10), (11) and (13) includes a technical dossier of a manufacturer or a test report from a recognised body.

    (15) A utility shall accept certificates from recognised bodies established in other member States when considering whether a tender for a contract conforms with the technical specifications laid down by the utility in accordance with paragraph (2).

    (16) Subject to paragraph (17), a utility shall not lay down technical specifications in the contract documents which refer to—

(a) materials or goods of a specific make or source or to a particular process; or

(b) trademarks, patents, types, origin or means of production;

which have the effect of favouring or eliminating particular economic operators.

    (17) Notwithstanding paragraph (16), exceptionally, a utility may incorporate the references referred to in paragraph (16) into the technical specifications in the contract documents, provided that the references are accompanied by the words "or equivalent", where—

(a) the subject of the contract makes the use of such references indispensable; or

(b) the subject of the contract cannot otherwise be described by reference to technical specifications which are sufficiently precise and intelligible to all economic operators.

(a) the beginning of the financial year in the case of supply contracts, services contracts or framework agreements for the purchase or hire of goods or for the provision of services; or

(b) the decision authorising the programme of works contracts or framework agreements for the carrying out of work or works, in the case of works contracts or framework agreements for the carrying out of work or works.

    (2) The notice referred to in paragraph (1) shall contain information in respect of—

(a) the supply contracts, the services contracts or the framework agreements referred to in paragraph (1)(a) which the utility expects to award during the period of 12 months beginning with the date of the notice; and

(b) the works contracts or the framework agreements referred to in paragraph (1)(b) which the utility expects to award during the period of 12 months beginning with the date of the notice;

(a) in the case of a contract to be awarded using the restricted procedure or the negotiated procedure—


(i) if the intention to award the contract has been indicated in a periodic indicative notice and the requirements referred to in paragraph (3) are satisfied in relation to the contract; or

(ii) if a notice indicating the existence of a qualification system for economic operators has been sent to the Official Journal in accordance with regulation 25(17) and the requirement referred to in paragraph (5) is satisfied; or



(b) in any case by sending to the Official Journal a contract notice in the form of Annex V to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified in respect of the contract.

    (3) The requirements referred to in paragraph (2)(a)(i) are that—

(a) the periodic indicative notice refers specifically to the goods, works or services which are to be the subject of the proposed contract;

(b) the notice states that offers are to be sought using the restricted procedure or the negotiated procedure without further publication of a notice calling for competition and invites economic operators to express their interest in writing;

(c) the utility sends to all economic operators which express an interest, detailed information, including the information described in paragraph (4), on the contract concerned and before beginning the selection of economic operators invites them to confirm their wish to be selected to tender for or to negotiate the contract; and

(d) the notice referred to in sub-paragraph (c) was published not more than 12 months before the date on which the invitation is sent out in accordance with sub-paragraph (b).

    (4) The information referred to in paragraph (3)(b) shall include—

(a) the nature and quantity or extent of the goods, work, works or services to be supplied under the contract;

(b) any options for further supplies, work, works or services and, if known, an estimate of the timing when such options may be exercised;

(c) in the case of recurring contracts for goods, work, works or services, their nature and quantity or extent, and, if known, the estimated date of the subsequent calls for competition for the goods to be supplied, the work or works to be carried out or the services to be provided;

(d) a statement of whether the contract is to be awarded using the restricted procedure or the negotiated procedure;

(e) any date for beginning or completing the delivery of goods or for the carrying out of work or works or for providing services;

(f) the address to which and the date by which an application to be invited to tender must be submitted and the one or more languages in which it must be submitted;

(g) the address of the utility and any information needed to obtain specifications and other documents relating to the proposed contract;

(h) any economic and technical requirements, financial guarantees and information required from economic operators;

(i) the amount to be paid for and the terms of payment in respect of the documents relating to the proposed contract;

(j) a statement of whether the utility is inviting offers for purchase, lease, rental or hire-purchase or involving more than one of these methods; and

(k) the contract award criteria and their weighting in accordance with regulation 30(3) and 30(4) or the descending order of importance of such criteria in accordance with regulation 30(5), if this information is not specified in the periodic indicative notice or the contract documents.

(a) in the absence of tenders, suitable tenders or applications in response to a procedure with a call for competition but only if the original terms of the proposed contract offered in the discontinued procedure have not been substantially altered;

(b) when the contract is to be awarded purely for the purposes of research, experiment, study or development but not where it has the purpose of securing profit or of recovering research and development costs and insofar as its award will not prejudice the competitive award of subsequent contracts which are, in particular, for the same purposes;

(c) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may only be performed by a particular economic operator;

(d) when (but only if it is strictly necessary) for reasons of extreme urgency brought about by events unforeseeable by the utility the time limits specified in regulation 22(2) to (11) cannot be met;

(e) when the contract to be awarded is a supply contract and the goods to be purchased or hired under the contract are required by the utility as a partial replacement for, or in addition to, existing goods or an installation and when to obtain the goods from a supplier other than the supplier which supplied the existing goods or the installation would oblige the utility to acquire goods having different technical characteristics which would result in—


(i) incompatibility between the existing goods or the installation and the goods to be purchased or hired under the contract; or

(ii) disproportionate technical difficulties in the operation and maintenance of the goods or the installation;



(f) when a utility wants an economic operator which has entered into a works contract or a services contract with that utility to carry out additional work or works or provide additional services which were not included in the project initially considered or in the original works contract or services contract but which through unforeseen circumstances have become necessary, and such work, works or services—



(i) cannot for technical or economic reasons be carried out or provided separately from those under the original contract without major inconvenience to the utility; or

(ii) can be carried out or provided separately from those under the original contract but are strictly necessary to the later stages of the performance of that contract;



(g) subject to paragraph (2), when the utility wants an economic operator which has entered into a works contract with that utility following a call for competition which satisfies the requirement of regulation 16(1) to carry out new work or works which are a repetition of the work or works carried out under the original contract and which are in accordance with the project for the purpose of which the first contract was entered into;

(h) in respect of a supply contract for the purchase or hire of goods quoted and purchased on a commodity market;

(i) when the contract to be awarded is to be awarded under a framework agreement which has been concluded in accordance with these Regulations and to which the provisions of regulation 18 apply;

(j) when the contract to be awarded is a supply contract, to take advantage of a particularly advantageous bargain available for a very short period of time at a price considerably lower than normal market prices;

(k) when the contract to be awarded is a supply contract, to take advantage of particularly advantageous conditions for the purchase of goods in a closing down sale or in a sale brought about because a supplier is subject to a procedure referred to in regulation 26(5)(a), (b) and (c); and

(l) in the case of services contracts, when the rules of a design contest require the contract to be awarded to the successful contestant or to one of the successful contestants, provided that all successful contestants are invited to negotiate the contract.

    (2) A utility shall not seek offers without a call for competition in accordance with paragraph (1)(g) unless—

(a) the original contract was awarded after a call for competition;

(b) when the utility invited contractors to tender for or negotiate the contract it gave notice that a works contract for new work or works which would be a repetition of the work or works carried out under the original contract may be awarded without a call for competition in accordance with paragraph (1)(g); and

(c) in determining the estimated value of the original contract for the purposes of regulation 11 the utility took into account the value of the consideration which it expected to be payable for the new works.

(a) the open procedure;

(b) the restricted procedure;

(c) the negotiated procedure with a prior call for competition; or

(d) the procedure set out in regulation 19 on the opening of competition for contracts to be awarded under a dynamic purchasing system.

    (3) The utility shall not hold an electronic auction to precede the award of a services contract or a works contract having as its subject matter intellectual performance, such as the design of works.

    (4) The utility may only hold an electronic auction to precede the award of a contract when the contract specification can be established with precision.

    (5) The utility shall base an electronic auction on—

(a) price alone where the contract is to be awarded on the basis of the lowest price; or

(b) price or the values of quantifiable elements of tenders indicated in the contract specification, where the contract is to be awarded on the basis of the offer which is the most economically advantageous in accordance with regulation 30(1)(a).

    (6) Where the utility intends to hold an electronic auction it shall state this in the contract notice.

    (7) A contract specification prepared by the utility in relation to a contract the award of which is to be preceded by an electronic auction shall include—

(a) the quantifiable elements of tenders capable of expression in figures or percentages which will be the subject of the electronic auction;

(b) any limitations on the values for the quantifiable elements of tenders (resulting from the contract specification) which may be submitted in the electronic auction;

(c) the information to be made available to economic operators during the electronic auction and, where appropriate, an indication of when it will be made available to them;

(d) a description of the electronic auction process;

(e) the conditions under which economic operators will be able to bid and, in particular, the minimum differences which may be required when bidding; and

(f) all relevant information concerning—


(i) the electronic system to be used in the electronic auction; and

(ii) the arrangements for and technical specifications relevant to connection to the electronic system to be used.

    (8) Before proceeding with an electronic auction, the utility shall—

(a) make an initial evaluation of the tenders in accordance with the award criteria specified and with any weighting fixed for them; and

(b) by electronic means simultaneously invite all the economic operators which have submitted admissible tenders to submit new prices or new values in the electronic auction.

    (9) Where the utility is to award a contract on the basis of the offer which is most economically advantageous to it in accordance with regulation 30(1)(a), each invitation referred to in paragraph (8)(b) shall include the outcome of the evaluation of the tender submitted by the economic operator to which the invitation is sent, carried out in accordance with the weighting described in regulation 30(3).

    (10) The utility shall include in the invitation referred to in paragraph (8)(b)—

(a) all relevant information concerning individual connection to the electronic system to be used in the electronic auction;

(b) the date and time of the start of the electronic auction;

(c) the number of phases in the electronic auction;

(d) the mathematical formula to be used in the electronic auction to determine automatic re-ranking of tenders on the basis of the new prices or new values to be submitted by economic operators and incorporating the weighting of all the criteria set to determine the most economically advantageous tender;

(e) where variant bids are authorised by the utility, a separate mathematical formula for each variant; and

(f) the basis on which the electronic auction is to be closed and the appropriate additional information specified in paragraph (16).

    (11) In relation to the formula referred to in paragraph (10)(d), any ranges used in the weighting of criteria shall be set at a specified value before the invitation is sent to economic operators.

    (12) At least two working days must elapse between the date on which the invitation referred to in paragraph (8)(b) is sent and the date of the electronic auction.

    (13) During each phase of an electronic auction, the utility—

(a) shall instantaneously communicate to all economic operators participating in the auction at least sufficient information to enable them to ascertain their relative rankings in the auction at any time;

(b) may communicate to each economic operator other information concerning prices or values submitted by other economic operators provided that this has been stated in the contract specification; and

(c) may disclose the number of economic operators participating in that phase of the auction.

    (14) During any phase of an electronic auction the utility shall not disclose the identity of any economic operator participating in the auction.

    (15) The utility shall close an electronic auction—

(a) at the date and time fixed for closure in the invitation referred to in paragraph (8)(b);

(b) when it receives no further new prices or new values which meet the requirements concerning minimum differences; or

(c) when the number of phases in the electronic auction specified in the invitation referred to in paragraph (8)(b) has been completed.

    (16) Where the utility intends to close an electronic auction—

(a) as described in paragraph (15)(b), it shall state in the invitation referred to in paragraph (8)(b) the period which it intends to allow to elapse before it closes the auction after receiving a submission from an economic operator participating in the auction; or

(b) as described in paragraph (15)(c), it shall state in the invitation referred to in paragraph (8)(b) the timetable for each phase in the auction.

(a) the utility has published a periodic indicative notice in accordance with regulation 15;

(b) the periodic indicative notice contained as much of the information specified in the form of periodic indicative notice used to call for competition in Annex IV to Commission Regulation (EC) No. 1564/2005 as was available at the time of publication; and

(c) the periodic indicative notice was sent to the Official Journal at least 52 days and not more than 12 months before the date on which the contract notice was despatched;

a utility using the open procedure may substitute for the period of not less than 52 days specified in paragraph (2) a shorter period of generally not less than 36 days and in any event not less than 22 days.

    (4) The date which a utility using the restricted procedure or the negotiated procedure with a call for competition fixes as the last date for the receipt by it of requests to be selected to tender for or to negotiate the contract shall be specified in the contract notice or, where the call for competition is made by means of a periodic indicative notice, in the invitation to economic operators made in accordance with regulation 16(3)(b), and shall in general be at least 37 days from the date of the despatch of the notice or invitation and shall in any case be not less than 22 days from that date, apart from when the notice is transmitted by electronic means in accordance with paragraph (6) or facsimile in which case it shall be not less than 15 days.

    (5) The date which is the last date for the receipt of tenders made in response to an invitation to tender by a utility using the restricted procedure or the negotiated procedure with a call for competition may be agreed between the utility and the economic operators invited to tender and shall be the same date for all economic operators or, in the absence of agreement as to the date, shall be fixed by the utility and shall be as a general rule at least 24 days and in any event not less than 10 days from the despatch of the invitation to tender.

    (6) Where a contract notice is transmitted by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex XX to the Utilities Directive a utility may reduce the time limits by 7 days for—

(a) the receipt by it of requests to be selected to tender for or to negotiate the contract; and

(b) the receipt by it of tenders when using the open procedure.

    (7) Subject to paragraph (5), a utility using the open procedure, the restricted procedure or the negotiated procedure may reduce the time limits for the receipt by it of tenders by 5 days provided that—

(a) the utility offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and

(b) the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.

    (8) When using the reductions specified in paragraphs (3), (6) and (7), the date which a utility using the open procedure fixes as the last date for the receipt by it of tenders, shall be not less than 15 days from the date of despatch of the contract notice.

    (9) Where the contract notice is not transmitted by facsimile or electronic means and when using the reductions specified in paragraphs (3), (6) and (7), the date which a utility using the open procedure fixes as the last date for the receipt by it of tenders, shall be not less than 22 days from the date of despatch of the contract notice.

    (10) When using the reductions specified in paragraphs (3), (6) and (7) the date which a utility using the restricted procedure or the negotiated procedure with a call for competition fixes as the last date for the receipt by it of requests to be selected to tender for or to negotiate the contract, shall be not less than 15 days from the date of despatch of the notice or invitation.

    (11) Subject to paragraph (5) and when using the reductions specified in paragraphs (3), (6) and (7), the date which a utility using the restricted procedure or the negotiated procedure with a call for competition fixes as the last date for the receipt by it of tenders, shall be not less than 10 days from the date of despatch of the invitation to tender.

    (12) Subject to paragraph (5), a utility shall extend the time limit for receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—

(a) an economic operator requests the contract documents in sufficient time to allow a utility to respond in accordance with paragraphs (13) and (14) and, for whatever reason, the contract documents are not supplied in accordance with those paragraphs; or

(b) it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.

    (13) Where a utility using the open procedure does not offer unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (7), the utility shall send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator, provided that the documents are requested in good time before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (14) A utility using the open procedure, the restricted procedure or the negotiated procedure shall supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the utility to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.

    (15) A utility using the restricted procedure or the negotiated procedure with or without a call for competition shall send invitations in writing simultaneously to each of the economic operators selected to tender for or to negotiate the contract and the invitation shall—

(a) be accompanied by the contract documents;

(b) specify the internet address which offers unrestricted and full direct access by electronic means to the contract documents in accordance with paragraph (7); or

(c) where the contract documents are held by an entity other than the utility, specify the address to which requests for contract documents should be sent including any final date for making such requests and the amount and any method of payment of any fee which may be charged for supplying that information.

    (16) Where the contract documents are held by an entity other than the utility, the utility shall ensure that the contract documents are sent to economic operators by the most rapid means of communication practicable.

    (17) The utility shall include the following information in the invitation—

(a) the final date for making requests for further information and the amount and method of payment of any fee which may be charged for supplying that information;

(b) the final date for receipt by it of tenders, the address to which they must be sent and the one or more languages in which they must be drawn up;

(c) a reference to any contract notice;

(d) an indication of the information to be included with the tender;

(e) the criteria for the award of the contract if this information was not specified in the contract notice, the notice on the existence of a qualification system used as a means of calling for competition published in accordance with regulation 16(2)(a)(ii) or the contract documents; and

(f) the relative weighting of the contract award criteria or, where appropriate, the descending order of importance of such criteria if this information was not specified in the contract notice, the notice on the existence of a qualification system or the contract documents.

(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.

(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) 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.

(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.

(a) is the most economically advantageous from the point of view of the utility; or

(b) offers the lowest price.

    (2) A utility shall use criteria linked to the subject matter of the contract to determine that an offer is the most economically advantageous including delivery date or period for completion, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, environmental characteristics, technical merit, after sales service and technical assistance, commitments with regard to parts, security of supply and price or otherwise.

    (3) Where a utility intends to award a contract on the basis of the offer which is the most economically advantageous, it shall state the weighting which it gives to each of the criteria chosen in the contract notice or in the contract documents.

    (4) When stating the weightings referred to in paragraph (3), a utility may give the weighting a range and specify a minimum and maximum weighting where it considers it appropriate in view of the subject matter of the contract.

    (5) Where, in the opinion of the utility, it is not possible to provide weightings for the criteria referred to in paragraph (3) on objective grounds, the utility shall indicate the criteria in descending order of importance in the contract notice or contract documents.

    (6) If an offer for a contract is abnormally low, the utility may reject that offer but only if it has—

(a) requested in writing an explanation of the offer or of those parts which it considers contribute to the offer being abnormally low;

(b) taken account of any evidence provided in response to a request in writing; and

(c) subsequently verified the offer or parts of the offer being abnormally low with the economic operator.

    (7) Where a utility requests an explanation in accordance with paragraph (6), the information requested may, in particular, include—

(a) the economics of the method of construction, the manufacturing process or the services provided;

(b) the technical solutions suggested by the economic operator or the exceptionally favourable conditions available to the economic operator for the execution of the work or works, for the supply of goods or for the provision of the services;

(c) the originality of the work, works, goods or services proposed by the economic operator;

(d) compliance with the provisions relating to employment protection and working conditions in force at the place where the contract is to be performed; or

(e) the possibility of the economic operator obtaining State aid.

    (8) Where a utility establishes that a tender is abnormally low because the economic operator has obtained State aid, the offer may be rejected on that ground alone only after—

(a) consultation with the economic operator; and

(b) the economic operator is unable to prove within a reasonable time limit fixed by the utility, that the aid has been granted in a way which is compatible with the EC Treaty.

"an offer of third country origin" means an offer to enter a supply contract under which more than 50% of the total value of the goods offered originate in States with which the Communities have not concluded, multilaterally or bilaterally, an agreement ensuring comparable and effective access for undertakings in member States to the markets of those States or in States to which the benefit of the provisions of the Utilities Directive has not been extended; and

"goods" includes software used in telecommunications network equipment.

(a) the number of tenders received;

(b) the identity of the economic operator; or

(c) prices;

is of a sensitive commercial nature, and require that it not be published.

    (3) A utility shall not be required to send a contract award notice in accordance with paragraph (1) where it awards a contract under a framework agreement.

    (4) A utility which has awarded a contract under a dynamic purchasing system in accordance with regulation 19 may—

(a) send the contract award notice in accordance with paragraph (1); or

(b) retain any notice it is proposing to send to the Official Journal in accordance with paragraph (1) for a period of 3 months commencing on the date that the first notice was retained.

(a) shall establish the rules for that design contest in accordance with the provisions of this regulation; and

(b) shall not limit the admission of any economic operator to the design contest by reference to the territory or part of the territory of a relevant State.

    (2) This regulation applies to a design contest if it is organised as part of a procedure leading to the award of a services contract whose estimated value (net of value added tax and including the value of any prizes or payments) is not less than the sum mentioned in Article 61(1) of the Utilities Directive.

    (3) This regulation applies to a design contest whether or not it is organised as part of a procedure leading to the award of a services contract if—

(a) the contest is conducted for the purpose of carrying out an activity specified in any Part of Schedule 1 in which the utility is specified; and

(b) the aggregate value of the prizes or payments for the contest, including the estimated value (net of value added tax) of the contract which might subsequently be awarded in accordance with regulation 17(1)(l) provided that the utility does not exclude such an award in the contest notice, is not less than the sum mentioned in Article 61(2) of the Utilities Directive.

    (4) For the purpose of paragraphs (2) and (3) the relevant threshold is references to the Utilities Directive are references to that Directive as amended from time to time.

    (5) This regulation does not apply to a design contest—

(a) which is organised by the utility other than for the purpose of carrying out an activity specified in the Part of Schedule 1 in which the utility is specified;

(b) which is organised by the utility for the purpose of carrying out any activity outside the territory of the Communities but only if the carrying out of that activity does not involve the physical use of a network or geographical area within the Communities;

(c) which is classified as secret or where it must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions of any part of the United Kingdom or when the protection of the essential interests of the security of the United Kingdom requires it;

(d) where different rules govern the procedures of the design contest and it is to be entered into in accordance with—


(i) an international agreement to which the United Kingdom and a State which is not a relevant State are parties and it relates to a design contest intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops; or

(iii) the design contest procedures of an organisation of which only States are members (an "international organisation") or of which only States or international organisations are members; or



(e) organised by the utility for the purpose of carrying out an activity specified in Column 2 of Schedule 1 where that activity is directly exposed to competition on markets to which access is unrestricted and this will be the case if one of the following conditions is satisfied—



(i) the Office of Government Commerce has notified the Commission in accordance with Article 30 of the Utilities Directive that the activity concerned is directly exposed to competition on markets to which access is not restricted and—


(aa) the Commission has adopted a decision that an exemption should apply in response to such a notification; or

(bb) the Commission has not adopted a decision in relation to such a notification within the time limits specified in Article 30(6) of the Utilities Directive;



(ii) the Commission has, on the application of the utility—



(aa) adopted a decision that an exemption should apply to the activity concerned; or

(bb) has not adopted such a decision within the time limit specified in Article 30(6) of the Utilities Directive; or



(iii) the Commission has, of its own initiative—



(aa) adopted a decision that an exemption should apply to the activity concerned and for the purposes of this sub-paragraph that time limit commences on the date that the Commission has informed the Office of Government Commerce in accordance with Article 30 that the matter is under consideration.

    (6) The utility shall publicise its intention to hold a design contest by sending to the Official Journal a notice in the form of the design contest notice in Annex XII to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified.

    (7) The utility shall make the rules of the design contest available to economic operators which wish to participate in the contest.

    (8) Regulations 28(2) and 29 apply to design contests as they apply to the seeking of offers in relation to a proposed contract.

    (9) Regulation 40(1)(b) to (7) applies to notices relating to design contests as it applies to notices in relation to a proposed contract.

    (10) Regulation 42(1), (2) and (4) applies to all communications relating to design contests as it applies to a proposed contract.

    (11) The utility shall ensure that the specified means of communication and the storage of information enables—

(a) the integrity and confidentiality of information provided by those economic operators participating in the design contest to be maintained; and

(b) the jury to ascertain the contents of proposals only after the time limit for their submission has expired.

    (12) Where the utility requires that proposals are to be transmitted by electronic means, it shall ensure that—

(a) details of the equipment which is necessary for the electronic receipt of proposals, including encryption, are available to all economic operators which wish to participate in the design contest; and

(b) the equipment for the electronic receipt of proposals complies with the requirements of regulation 42(6).

    (13) Where the utility restricts the number of economic operators in the design contest, it shall—

(a) establish clear and non-discriminatory criteria to select those economic operators; and

(b) ensure that the number of economic operators selected is sufficient to ensure adequate competition.

    (14) The utility shall ensure that—

(a) the members of the jury are all individuals who are independent of those economic operators participating in the design contest;

(b) where the economic operators are required to possess a particular professional qualification, that at least one third of the members of the jury also possess that qualification or an equivalent qualification;

(c) the proposals of the economic operators are submitted to the jury without any indication as to the authorship of each proposal;

(d) the jury makes its decisions or opinions independently and solely on the basis of the criteria specified in the notice referred to in paragraph (6);

(e) the jury is not informed of the authorship of any proposal until after it has reached its decision or opinion;

(f) the jury prepares minutes signed by its members in which it records—


(i) its ranking of the proposals based upon its assessment of each proposal's merits; and

(ii) its observations or details of any issues upon which clarification is required in relation to each proposal; and



(g) the jury may invite the economic operators to answer any questions to clarify issues noted in the minutes referred to in sub-paragraph (f) and shall record complete minutes of any such communications with economic operators.

    (15) The utility shall, not later than 2 months after the date the jury makes its selection, publicise the results of the design contest by sending to the Official Journal a notice in the form of the notice of the results of a design contest in Annex XIII to Commission Regulation (EC) No. 1564/2005 and including the information therein specified.

    (16) When sending the notice of the results of a design contest to the Official Journal in accordance with paragraph (15), the utility may indicate that information regarding—

(a) the number of proposals received;

(b) the identity of the economic operators; or

(c) prices;

is of a sensitive commercial nature, and require that it not be published.

(a) the work or works to be carried out under the works contract; or

(b) the services to be provided under the services contract.

(a) the notice used as a means of calling for competition and the contract documents; or

(b) the contract documents.

    (2) The conditions referred to in paragraph (1) may, in particular, include social or environmental considerations.

(a) the qualification and selection of economic operators and the award of contracts; and

(b) the use of a procedure without a prior call for competition by virtue of regulation 17.

(a) in the correct format and contain the necessary information specified by Commission Regulation (EC) No 1564/2005 and contain any other information which the utility considers useful; and

(b) sent to the Office for Official Publications of the European Union by electronic means in the format and in accordance with the procedures specified in paragraph (3) of Annex XX to the Utilities Directive or by other means.

    (2) Where a notice is not sent by electronic means in accordance with paragraph (1)(b), the utility may in exceptional cases request the Official Journal to publish a contract notice within 5 days of the date of despatch, provided that the notice is sent to the Official Journal by facsimile.

    (3) The utility shall not place a notice in any publication—

(a) before the date on which the notice is despatched in accordance with paragraph (1)(b); or

(b) which contains any additional information to that contained in the notice despatched in accordance with paragraph (1)(b) or published on the utility's buyer profile in accordance with regulation 15.

(a) by post;

(b) by facsimile;

(c) by electronic means in accordance with paragraphs (4) and (5);

(d) by telephone in the circumstances referred to in paragraph (8); or

(e) by any combination of those means of communication.

    (2) The means of communication specified by a utility shall be generally available and shall not restrict economic operators' access to the contract award procedures specified in these Regulations.

    (3) A utility shall ensure that the specified means of communication and the storage of information enables—

(a) the integrity of data provided by economic operators and the confidentiality of tenders and requests to be selected to tender for or to negotiate the contract to be maintained; and

(b) tenders and requests to be selected to tender for or to negotiate the contract to be opened only after the time limit for their submission has expired.

    (4) The equipment used for communications made by electronic means shall be—

(a) non-discriminatory;

(b) generally available; and

(c) interoperable with information and communication technology products in general use.

    (5) Where a utility requires that tenders and requests to be selected to tender for or to negotiate the contract are to be transmitted by electronic means, it shall ensure that—

(a) details of the equipment including any software which is necessary for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract, including encryption, are available to all interested economic operators; and

(b) the equipment for the electronic receipt of tenders and requests to be selected to tender for or to negotiate the contract complies with the requirements of paragraph (6).

    (6) The requirements referred to in paragraph (5)(b) are—

(a) any part of the contract that the economic operator intends to sub-contract to another person; and

(b) the identity of any person to whom that economic operator proposes to sub-contract any part of the contract.