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Annex C

SPPN 5/2007

Scottish Statutory Instruments

2007 No.

PUBLIC PROCUREMENT

The Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2007

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972( ¹).

Citation, commencement, interpretation and extent

1.-(1) These Regulations may be cited as the Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2007 and come into force on [ ] 2007.

(2) In these Regulations the "Public Contracts Regulations" means the Public Contracts (Scotland) Regulations 2006( ²) and the "Utilities Contracts Regulations" means the Utilities Contracts (Scotland) Regulations 2006( ³).

(3) These Regulations extend to Scotland only.

Amendments to the Public Contracts Regulations

2.-(1) The Public Contracts Regulations are amended as follows.

(2) In regulation 5 (application)-

(a) in paragraph (1) delete "and regulation 8(21)"; and
(b) after paragraph (2) insert-

"(2A) For the purposes of paragraph (2)-

(a) a framework agreement; or
(b) a dynamic purchasing system,

in respect of which only Part B services contracts can be based or awarded is a proposal in relation to a Part B services contract.".

(3) In regulation 8 (thresholds)-

(a) in paragraph (1) after "These Regulations" insert ", except paragraph (21) of this regulation,";
(b) in paragraph (21) after "advertising" insert "and follow a procedure leading to the award of the contract".

(4) In regulation 13(a)(ii) (Use of negotiated procedure with prior publication of a contract notice) for "or 16(7)" substitute " , 16(7) or 18(10)".

(5) In regulation 14 (Use of negotiated procedure without prior publication of a contract notice)-

(a) for paragraph (1)(a)(i) substitute-

"(i) when a contracting authority is using the negotiated procedure in accordance with regulation 13(a) and invites to negotiate the contract all of, and only, those economic operators which submitted a tender following an invitation made during the course of the discontinued open procedure, restricted procedure or competitive dialogue procedure (not being a tender which was excluded in accordance with regulation 15(11), 16(7) or 18(10));"; and

(b) in paragraph (5)(b) for "regulation 11" substitute "regulation 8".

(6) In regulation 23 (criteria for the rejection of economic operators)-

(a) in paragraph (4)(j) for "(7), (8) and (9)" substitute "(7), (7A), (7B), (8), (8A), (8B) and (9)";
(b) after paragraph (7) insert-

"(7A) An economic operator established in Cyprus shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if-

(a) in relation to procedures for the award of a public services contract or a public supply contract the economic operator is either-

(i) certified as incorporated by the Registrar of Companies and Official Receiver (?f???? ?ta??e??? ?a? ?p?s?µ?? ?a?a??pt??);or
(ii) certified as having declared on oath that he is carrying on business in the trade in question in the State in which he is established at a specific place of business and under a specific trading name; or

(b) in relation to procedures for the award of a public works contract the economic operator is certified by the Council for the Registration and Audit of Civil Engineering and Building Contractors (S?µß????? ????af?? ?a? ??????? ??????pt?? ????d?µ???? ?a? ?e?????? ?????) according to the Registration and Audit of Civil Engineering and Building Contractors Law of Cyprus.";

"(7B) An economic operator established in Malta shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if-

(a) the economic operator supplies his "numru ta' registrazzjoni tat- Taxxa tal- Valur Mizjud ( VAT) u n- numru tal-licenzja ta' kummerc"; and
(b) where the economic operator is a member of a partnership or is a company, it supplies the relevant registration number as issued by the Malta Financial Services Authority".
(c) after paragraph (8) insert-

"(8A) (8A) In relation to procedures for the award of a public services contract an economic operator established in Hungary shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator is certified as being entitled to be engaged in the trade in question in the State in which he is established.

(8B) In relation to procedures for the award of a public supply contract an economic operator established in Spain shall be treated as registered on the professional or trade register for the purposes of paragraph (4)(j) if the economic operator is certified as having declared on oath that it is entitled to be engaged in the trade in question in the State in which it is established.";

(7) In regulation 37 (sub-contracting the work or works to be carried out under a public works concession contract)-

(a) for paragraph (4)(b) substitute-

"(b) which the concessionaire does not intend to enter into with an economic operator-

(i) who is a member of the group of economic operators which acted jointly for the purpose of obtaining the public works concession contract; or
(ii) related to it or any member of that group; and".

(a) for paragraph (13) substitute-

"(13) A contracting authority shall require applicants for a public works concession contract to submit with the application a list of-

(a) all economic operators which are related to the applicant, and
(b) all economic operators which are related to the economic operators referred to in sub-paragraph (a),

and to update the list from time to time to take account of any changes in the economic operators referred to in sub-paragraphs (a) and (b).".

(8) In Schedule 1 ( GPA Annex 1 Contracting Authorities)-

(a) under the entry for the Department for Culture, Media and Sport, for "National History Museum" substitute "Natural History Museum",
(b) under the entry for the Scottish Ministers-

(i) for "The NHS Education for Scotland Board" substitute "Special Health Boards constituted under section 2 of the National Health Service (Scotland) Act 1978( ⁴),
(ii) delete "Scottish Council for Postgraduate Medical and Dental Education",
(iii) for "Scottish National Health Service Authorities and Trusts" substitute "Health Boards constituted under section 2 of the National Health Service (Scotland) Act 1978,
(iv) for "Parole Board for Scotland and Local Review Committees" substitute "Parole Board for Scotland",
(v) for "Scottish Criminal Record Office" substitute "Scottish Police Services Authority",
(vi) for "Scottish Crime Squad" substitute "Scottish Crime and Drug Enforcement Agency",
(vii) for "Scottish Fire Training Squad" substitute "Scottish Fire Services College", and
(viii) for "Rent Assessment Panel and Committees" substitute "The private rented housing panel and private rented housing committees constituted under Schedule 4 to the Rent (Scotland) Act 1984( ⁵)".

(9) In Schedule 3 (categories of service) in category 24 of Part B for "Educational and vocational health services" substitute "Educational and vocational educational services".

(10) In Schedule 4 (extension to non-member states) in the table omit the following entries-

(a) 1. Bulgaria, and
(b) 5. Romania.

(11) For Schedule 6 (professional or trade registers), substitute the Schedule set out in the Schedule to these Regulations.

Amendments to the Utilities Contracts Regulations

3.-(1) The Utilities Contracts Regulations are amended as follows.

(2) In regulation 2(1) (interpretation) in the definition of "central purchasing body" for "a utility which is a contracting authority" substitute "a contracting authority, including a contracting authority which is a utility,".

(3) In regulation 5(1) (application) for "Subject to regulation 11(20), these Regulations" substitute "These Regulations".

(4) In regulation 7(4) (Exclusion of contracts awarded to affiliated undertakings or joint ventures) for "a utility may calculate" substitute "a utility shall calculate".

(5) In regulation 9 (exemption of contracts where activity is directly exposed to competition) after paragraph (3) add-

"(4) For the purposes of this regulation, and as at [insert date] the Commission has adopted the following decisions-

(a) Commission Decision of 8 March 2006 establishing that Article 30(1) of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors applies to electricity generators in England, Scotland and Wales( ⁶);
(b) Commission Decision of 26 February 2007 establishing that Article 30(1) of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors applies to the supply of electricity and gas in England, Scotland and Wales( ⁷).".

(6) In regulation 11 (thresholds)-

(a) in paragraph (1) after "These Regulations" insert " , except paragraph (20) of this regulation,";
(b) in paragraph (20) after "advertising" insert "and follow a procedure leading to the award of the contract".

(7) In Schedule 4 (extension to non-member states), in the table omit the following entries-

(a) 1. Bulgaria, and
(b) 5. Romania.

Authorised to sign by the Scottish Ministers

St Andrew's House,
Edinburgh

2007

SCHEDULE Regulation 2(9)

SCHEDULE TO BE SUBSTITUTED FOR SCHEDULE 6 TO THE PUBLIC CONTRACTS REGULATIONS

"SCHEDULE 6 Regulation 23(4)(j)

PROFESSIONAL OR TRADE REGISTERS

PUBLIC SERVICES CONTRACTS

1. In relation to procedures for the award of a public services contract, the following are the appropriate professional or trade registers for the purposes of regulation 23(4)(j)-

in Austria, the Firmenbuch, Gewerberegister or Mitgliederverzeichnisse der Landeskammern;
in Belgium, the Registre du commerce/Handelsregister or the ordres professionals/ Beroepsorden;
in Bulgaria, ????????? ????????;
in the Czech Republic, the obchodní rejstrík;
in Denmark, the Erhvervs- og Selskabsstyrelsen;
in Estonia, the Keskäriregister;
in Finland, the Kaupparekisteri or Handelsregistret;
in France, the Registre du commerce et des sociétés or the Répertoire des métiers;
in Germany, the Handelsregister, the Handwerksrolle, the Vereinsregister, Partnerschaftsregister or the Mitgliedsverzeichnisse de Berufskammern der Ländern;
in Hungary, the Cégnyilvántartás, the egyéni vállalkozók jegyzoi nyilvántartása, or a szakmai
kamarák nyilvántartása;
in Iceland, the Firmaskrá or Hlutafélagaskrá;
in Italy, the Registro della Camera di commercio, industria, agricoltura e artigianato, the Registro delle commissioni provinciali per l'artiginiato and the Consiglio nazionale degli ordini professionali;
in Latvia, the Uznemumu registrs (Enterprise Register);
in Lithuania, the Juridiniu asmenu registras;
in Luxembourg, the Registre aux firmes and the Rôle de la chambre des métiers;
in the Netherlands, the Handelsregister;
in Norway, the Foretaksregisteret;
in Poland, the Krajowy Rejestr Sadowy (National Court Registry);
in Portugal, the Registo nacional das Pessoas Colectivas;
in Romania, Registrul Comertului;
in Slovakia, the Obchodný register;
in Slovenia, the Sodni register or the obrtni register;
in Spain, the Registro Oficial de Empresas Clasificadas del Ministerio de Hacienda; and
in Sweden, the aktiebolags-, handels- eller föreningsregistren.

PUBLIC WORKS CONTRACTS

2. In relation to procedures for the award of a public works contract the following are the appropriate professional or trade registers for the purposes of regulation 23(4)(j)-

in Austria, the Firmenbuch, Gewerberegister or Mitgliederverzeichnisse der Landeskammern;
in Belgium, the Registre du commerce/Handelsregister;
in Bulgaria, ????????? ????????;
in the Czech Republic, the obchodní rejstrík;
in Denmark, the Erhvervs- og Selskabsstyrelsen;
in Estonia, the Keskäriregister;
in Finland, the Kaupparekisteri or Handelsregistret;
in France, the Registre du commerce et des sociétés or the Répertoire des métiers;
in Germany, the Handelsregister or the Handwerksrolle;
in Greece, the registrar of contractors' enterprises (??t??? ??????pt???? ?p??e???se??) of the Ministry for Environment, Town and Country Planning and Public Works (????O??);
in Hungary, the Cégnyilvántartás or the egyéni vállalkozók jegyzoi nyilvántartása;
in Iceland, the Firmaskrá;
in Italy, the Registro della Camera di commercio, industria, agricoltura e artigianato;
in Latvia, the Uznemumu registrs (Enterprise Register);
in Lithuania, the Juridiniu asmenu registras;
in Luxembourg, the Registre aux firmes and the Rôle de la chambre des métiers;
in the Netherlands, the Handelsregister;
in Norway, the Foretaksregisteret;
in Poland, the Krajowy Rejestr Sadowy (National Court Registry);
in Portugal, the Instituto dos Mercados de Obras Públicas e Particulares e do Imobiliário ( IMOPPI) ( CAEOPP);
in Romania, Registrul Comertului;
in Slovakia, the Obchodný register;
in Slovenia, the Sodni register or the obrtni register;
in Spain, the Registro Oficial de Empresas Clasificadas del Ministerio de Hacienda; and
in Sweden, aktiebolags-, handels- eller föreningsregistren.

PUBLIC SUPPLY CONTRACTS

3. In relation to procedures for the award of a public supply contract the following are the appropriate professional or trade registers for the purposes of regulation 23(4)(j)-

in Austria, the Firmenbuch, Gewerberegister or Mitgliederverzeichnisse der Landeskammern;
in Belgium, the Registre du commerce/Handelsregister;
in Bulgaria, ????????? ????????;;
in the Czech Republic, the obchodní rejstrík;
in Denmark, the Erhvervs- og Selskabsstyrelsen;
in Estonia, the Keskäriregister;
in Finland, the Kaupparekisteri or Handelsregistret;
in France, the Registre du commerce et des sociétés or the Répertoire des métiers;
in Germany, the Handelsregister or Handwerksrolle;
in Greece, the ???te????? ? ?µp????? ? ???µ??a???? ?p?µe??t????;
in Hungary, the Cégnyilvántartás or egyéni vállalkozók jegyzoi nyilvántartása;
in Iceland, the Firmaskrá;
in Italy, the Registro della Camera di commercio, industria, agricoltura e artigianato and the Registro delle Commissioni provinciali per l'artigianato;
in Latvia, the Uznemumu registrs (Enterprise Register);
in Lithuania, the Juridiniu asmenu registras;
in Luxembourg, the Registre aux firmes and the Rôle de la chambre des métiers;
in Norway, the Foretaksregisteret;
in the Netherlands, the Handelsregister;
in Poland, the Krajowy Rejestr Sadowy (National Court Registry);
in Portugal, the Registo Nacional das Pessoas Colectivas;
in Romania, Registrul Comertului
in Slovakia, the Obchodný register;
in Slovenia, the Sodni register or the obrtni register;
in Spain, the Registro Mercantil; and
in Sweden, aktiebolags-, handels- eller föreningsregistren."

(This note is not part of the Order)

These Regulations amend the Public Contracts (Scotland) Regulations 2006 (S.S.I. 2006/1) ("the Public Contracts Regulations") and the Utilities Contracts (Scotland) Regulations 2006 (S.S.I. 2006/2) ("the Utilities Contracts Regulations").

Council Directive 2004/18/EC ( OJ L134 30.4.2004, p.114) concerns the co-ordination of the procedures for the award of public works contracts, public supply contracts and public services contracts. Council Directive 2004/17/EC ( OJ L134 30.4.2004, p.1) concerns the co-ordination of procurement procedures of entities operating in the water, energy, transport and postal service sectors. Those Directives have been implemented for Scotland by the Public Contracts Regulations and the Utilities Contracts Regulations respectively.

Regulation 2 makes minor amendments to the Public Contracts Regulations to clarify the application of the regulations to a framework agreement or dynamic purchasing system in relation to which only Part B services contracts can be based or awarded; to the use of the negotiated procedure without prior publication of a contract notice; and to the subcontracting of work under a public works concession contract.

There is a minor amendment to regulation 8(21) of the Public Contracts Regulations in order to clarify the Community obligations which are imposed upon contracting authorities even when the estimated value of the contract falls below the thresholds set out in Regulation 8.

There are also amendments made to the lists of professional and trade registers within the Public Contracts Regulations, so as to include professional and trade registers from Member States who joined the European Union in May 2004 (as set out in the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia , the Republic of Cyprus, the Republic of Latvia, the republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the treaties on which the European Union is founded, OJ L236 23.9.2003, p.33) and January 2007 (as set out in council Directive 2006/97/EC adapting certain Directives in the field of free movement of goods, by reason of the accession of Bulgaria and Romania, OJ L363 20.12.2006, p.107). There are also amendments made to update the names of various contracting authorities which are listed in Schedule 1 of the Public Contracts Regulations.

Regulation 2 makes a further consequential amendment to the Public Contracts Regulations following the accession of Bulgaria and Romania.

Regulation 3 makes a minor amendment to the Utilities Contracts Regulations to clarify the calculation of turnover by a utility in respect of its affiliated undertakings. It also includes a list of the Commissions decisions for the purposes of the regulations. There is also a further consequential amendment to the Utilities Contracts Regulations following the accession of Bulgaria and Romania.

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