Utilities Summary Document
Published 22 April 2024
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This publication is available at https://www.gov.uk/government/publications/the-official-procurement-act-2023-e-learning/utilities-summary-document
The learning manual and all of the material within it has been produced for the purpose of learning and development only, and does not constitute and should not be relied upon as legal or other professional advice. We have aimed to ensure that the information is correct as at 26th July 2024. The content has not been updated following any relevant changes. In particular, the material used in the e-Learning and learning manual has been based on a draft version of the Procurement Regulations 2024 and so users should review the Procurement Regulations 2024 laid before Parliament and the guidance issued by Cabinet Office in due course.
A. Introduction
Scope of Summary Document
This document provides an overview of the differences in the Procurement Act for utilities. While the majority of procurements for utilities contracts will generally follow the rules set out in the Procurement Act (as detailed in Summary Documents 1 to 9), some differences apply to utilities and utilities contracts. For example, some of the exempted contract provisions in schedule 2 only apply to utilities that are public authorities and the rules on pipeline notices in section 93 do not apply to private utilities. This document provides details of:
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The differences in the Procurement Act for utilities contracts and different types of utilities
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The key changes between utilities Contracts Regulations 2016 (UCR 2016) and the Procurement Act.
Utilities Procurement
Prior to the Procurement Act coming into force, above threshold utilities contracts were required to be procured and modified under the UCR 2016 unless the contract was excluded.
All other types of contracts that were not utilities contracts were required to be procured using (as relevant) the Public Contracts Regulations 2015, the Defence and Security Public Contracts Regulations 2011 or the Concession Contracts Regulations 2016, unless the contract was excluded.
Where no change, exemption or additional provision is listed, it should be presumed that the general regime applies, as detailed in Summary Documents 1-9. This document is designed to supplement those Summary Documents.
What is a utility?
The definition of a utility in the Act captures the same bodies as in the UCR 2016, although the drafting is not identical.
Utility. In the Procurement Act “utility” means a public authority, or public undertaking, that carries out a utility activity; or a private utility.
Contracting authority. A “contracting authority” is either a “public authority”; or in relation to a utilities contract, it may be a public authority, “public undertaking” or “private utility”.
Public authorities. Public authorities are funded wholly or mainly out of public funds or subject to public authority oversight, and, in each case, do not operate on a commercial basis.
Public undertakings. Public undertakings differ from public authorities in that they are not wholly or mainly funded out of public funds, although they are subject to public authority oversight. They also operate commercially. The express commercial operating requirement at Section 2(2)(b) is a change from the UCR 2016 where there is a control (dominant influence) requirement, but there is no express requirement that an entity operates commercially, although many do.
Public authority oversight. Public authority oversight, which appears in the definition of both public authorities and public undertakings, is defined at Section 2(3), in a similar way to UCR 4(2)(c)(ii)(iii), and means that the entity is subject to management or control by one or more public authorities or a board of which more than half of the members are appointed by one or more public authorities.
Private utility. Private utilities are other entities (i.e. not public authorities or public undertakings) that carry out a utility activity. Private utilities are only covered by the Procurement Act where they have been granted a special or exclusive right to carry out a utility activity.
It is not possible to have a definitive list of utilities as structures can be complex or change over time and whether an entity has been granted special or exclusive rights can change. Utilities will need to make an assessment of whether they are a public authority, public undertaking or private utility using the definitions in Section 2(2) of the Act.
What is a utilities contract?
A utilities contract is a contract for the supply of goods, services or works wholly or mainly for the purpose of a “utility activity”.
The Procurement Act Part 1 of Schedule 4 (utility activities) lists utility activities and Part 2 of Schedule 4 lists activities that are not, at a particular point in time, considered utility activities within the meaning of the Act. This largely mirrors the coverage of the UCR 2016 - except for the removal of postal services.
Part 1 utility activities are activities connected with the:
1. Provision or operation of gas and heat, electricity and water networks and the supply to those networks;
2. Provision or operation of public transport networks, ports and airports; and
3. Extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels.
B. Exemptions and differences
Schedule 2 sets out the types of contracts that are exempt from the Procurement Act. Provided the relevant conditions are met, they can all be used by utilities unless it is stated otherwise. The exemptions that apply specifically to utilities are summarised below.
Para 5 of Schedule 2 exempts utilities contracts awarded by a joint venture between utilities to one of those joint venture members, and vice versa.
Para 6 of Schedule 2 exempts utilities contracts awarded by a utility to an affiliate and by a utility that is a joint venture to an affiliate of any member of that joint venture.
Para 21 of Schedule 2 exempts contracts for public passenger transport services that are awarded under separate legislation - that legislation is specified at section 136(11) of the Railways Act 1993.
Para 31 of Schedule 2 exempts utilities contracts awarded for the purpose of further sale or lease to third parties, provided the utility does not have a special or exclusive right to sell or lease the goods, services or works purchased and the market is open.
Para 32 of Schedule 2 exempts utilities contracts for the purchase of water by utilities carrying out a utility activity in paragraph 3(1) of Schedule 4 (provision or operation of a fixed network or the supply of drinking water to such a fixed network).
Para 33 exempts utilities contracts for purchases of energy, or fuel for the production of energy, by utilities carrying out a utility activity in paragraphs 1, 2 or 6 of Schedule 4 (gas and heat, electricity and extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels).
Para 34 operates to ensure that contracts for the purpose of the activities set out in Part 2 of Schedule 4 are exempt from the Act.
The Procurement Act has provisions that do not apply to utilities contracts or private utilities and also differences for utilities. A quick reference guide to the exemptions and differences can be found in this Utilities Fact Sheet.
The information in the following sections is organised on a module-by-module basis, mirroring the structure of the e-Learning and accompanying Summary Documents. Unless otherwise stated below or exempted under Schedule 2 or Part 2 of Schedule 4, as referred to above, the Procurement Act will apply in full to utilities.
1. Scope, Definitions and Principles
Thresholds (Schedule 1)
Utilities contracts have their own threshold amounts, as set out in Schedule 1 of the Act (the amounts set out in Schedule 1 will be updated when the Act comes into force to reflect the thresholds that came into force on 1 January 2024):
| Type of contract | Threshold amount (including VAT) as of January 2024 |
|---|---|
| Utilities “works contract” | £5,372,609 |
| Utilities non-works contract (i.e. utilities contracts generally referred to as “goods” and “services” contracts and utilities contracts that are also concession contracts for services) |
£429,809 |
| Utility light touch contract | £884,720 |
Below-Threshold Procurements (Part 6 - Sections 84 to 88)
Exemption: A utilities contract is not caught by the “regulated below-threshold contract” definition in the Procurement Act, therefore Part 6 - regulated below-threshold contracts obligations do not apply to a utilities contract.
However, if a utilities contract was awarded below the threshold for its contract type, and following a modification (in accordance with section 74(1)) the contract value increases to above the threshold for its type of contract, it will become a public contract (a “convertible contract”), subject to the full scope of the Act.
National Procurement Policy Statements (Sections 13 and 14)
Exemption: The duty to have regard to the national procurement policy statement and the Wales procurement policy statement does not apply to private utilities and in relation to the award of a contract under a framework (including a utilities framework), or under a dynamic market (including a utilities dynamic market).
Pipeline Notices (Section 93)
Exemption: The obligation to publish pipeline notices if you are a contracting authority with £100 million spend and are entering into a contract with an estimated value of more than £2 million does not apply to private utilities
Transitioning to the Procurement Act
Can existing qualification systems still be used as a call for competition to award a contract after the commencement date?
You can continue to call off under a qualification system set up under the utilities contracts Regulations 2016 until the termination or expiry of the relevant qualification system (although no later than 27th October 2028, when all qualification systems must end).
Can an existing qualification system just be renamed to a dynamic market?
No, a dynamic market must be set up in accordance with the rules for establishing a dynamic market
See Summary Document 1: Scope, Definitions and Principles for further information.
2. Transparency
Notices and Documents
Exemption: Utilities (mainly private utilities) are exempt from publishing some notices:
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Pipeline notice (Section 93): Private utilities are exempt from publishing pipelines.
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Preliminary market engagement notice(Section 17): Private utilities are exempt from publishing preliminary market engagement notices.
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Tender notice (Section 21): The exemption applies to contracts to be awarded under a utilities dynamic market established by reference to a qualifying utilities dynamic market notice. Section 40 states there is no requirement to publish the tender notice, but that utilities must instead provide it directly to existing members of the market
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Dynamic market notice (Section 39): The obligation to publish a dynamic market notice after a dynamic market ceases to operate does not apply to private utilities.
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Contract details notice and publication of contracts (Section 53): Private utilities are exempt from publishing contract details notices and copies of contracts.
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Procurement termination notice(Section 55): Private utilities are exempt from publishing procurement termination notices.
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Key performance indicators (Section 52): Setting and publishing key performance indicators does not apply to a public contract awarded by a private utility.
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Assessment of contract performance (supplier breach or failure to perform) (Section 71): Assessing and publishing further information on key performance indicators does not apply to private utilities.
-
Payments compliance notice (Section 69): Private utilities are exempt from publishing payment compliance notices.
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Information about payments under public contracts (Section 70): Private utilities are exempt from publishing specific payment information where payments more than £30,000 are made under utilities contracts.
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Contract change notice (Section 75): Publishing contract change notices does not apply to a public contract awarded by a private utility.
-
Publication of modifications (Section 77): Publishing a copy of the contract as modified or the modification does not apply to a contract awarded by a private utility.
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Contract termination notice (Section 80): Publishing a contract termination notice does not apply to private utilities.
Exemption: Electronic communications(Section 96): Electronic communications systems do not need to be provided free of charge and readily accessible to suppliers in relation to a utilities dynamic market.
See Summary Document 2: Transparency for further information.
3. Procedures
Mixed Procurements: Special Regime Contracts (Section 10) Where the subject matter of a contract is mixed, i.e. is for goods, services or works that could be supplied under more than one type of contract, of which at least one would be a special regime contract - such as utilities plus non-utilities, or utilities plus light touch, or utilities plus defence and security, etc. - and the contracting authority has chosen not to split the different elements into individual contracts, then that contract will be subject to the full scope of the Act (without any of the exemptions that are applicable to any of the special regimes involved).
Exemption: Preliminary market engagement notice (Section 17): The obligation to publish a preliminary market engagement notice before publishing a tender notice or providing reasons for not doing so in the tender notice does not apply to private utilities.
Vertical and Horizontal arrangements (Schedule 2) vertical and horizontal exemptions do not apply to private utilities or public undertakings. The joint venture and affiliated persons exemptions for utility contracts provides a similar exemption for all utilities.
Time limits (Section 54): For utilities contracts, no minimum timescales are mandated for tenders from “pre-selected suppliers” (i.e. suppliers that have been required to satisfy conditions of participation before submitting tenders or are members of a utilities dynamic market) where a short tendering period has been agreed by all. In the absence of such agreement, the minimum timescales is 10 days.
See Summary Document 3: Procedures, for further information.
4. Competitive Flexible Procedure
Utilities contracts under the Procurement Act can utilise the full flexibility in the design and undertaking of a procurement procedure under the new competitive flexible procedure (see summary document 4 - competitive flexible). Likewise, an open procedure can also be used.
See Summary Document 4: Competitive Flexible Procedure, for further information.
5. Frameworks and Dynamic Markets
The rules for dynamic markets apply to utilities dynamic markets (which include markets established under a qualifying utilities dynamic market notice) and utilities contracts - (see summary document 5 - Frameworks and Dynamic Markets). Exceptions are:
Dynamic Markets
In the Procurement Act a “utilities dynamic market” means a dynamic market established only for the purpose of the award of utilities contracts by utilities.
Exemption: Competitive award by reference to dynamic markets (Section 34) The duty to consider applications for membership does not apply in relation to the award of a contract by reference to suppliers’ membership of a utilities dynamic market established by reference to a qualifying utilities dynamic market notice, or a part of such a market
Concession contracts which are utilities contracts can be awarded under a utilities dynamic markets.
Exemption: fees (Section 38) Utilities dynamic markets may provide for the charging of fees to suppliers in connection with obtaining and maintaining membership of the market. They can not provide for charging fees to suppliers that are awarded a contract by reference to their membership of the utilities dynamic market.
Exemption: Dynamic market notices (Section 39) All dynamic market notice requirements apply other than private utilities do not have to publish a notice to confirm the dynamic market has ceased to operate
Exemption: Qualifying utilities dynamic market notices: no duty to publish a tender notice (Section 40) Utilities that establish dynamic markets using a qualifying utilities dynamic market notice do not publish a tender notice for the purpose of inviting suppliers to submit a request to participate or tender; instead a tender notice must be provided to members of the market or appropriate part of the market. Contracting authorities have discretion to provide a tender notice to suppliers that are still being considered for membership of the market, or part of the market,
Frameworks
The rules for frameworks and open frameworks apply to utilities contracts - see Frameworks and Dynamic Markets summary document.
A utilities framework is a framework which does not provide for the future award of public contracts other than utilities contracts.
Exemption: frameworks: maximum term (Section 47) The term of a utilities framework may not exceed eight years unless the contracting authority considers the nature of the goods, services or works to be supplied under contracts awarded in accordance with the framework means that a longer term is required.
If a contracting authority considers the nature of the goods, services or works to be supplied under contracts awarded in accordance with the framework means that a longer term is required, the contracting authority must set out its reasons in the tender or transparency notice for the framework.
The maximum term does not apply to a framework awarded by a private utility
Exemption: Contract award notices and assessment summaries (Section 50) Under UCR 2016, pri]vate utilities are not required to publish a contract award notice following the award of a contract under a framework, as required by section 50 of the Procurement Act. Whilst this is a new obligation, the information requirement for private utilities is less than for other utilities.
See Summary Document : Frameworks and Dynamic Markets, for further information.
6. Supplier Selection and Exclusions
Exemption: Meaning of excluded and excludable supplier (Section 57) For private utilities an excluded supplier is to be regarded as an excludable supplier and references to an excludable supplier includes a reference to such an excludable supplier.
See Summary Document 6: Supplier Selection, for further information.
7. Assessment and Award
The rules around award criteria, assessing tenders, awarding contracts and entering into contracts [generally] apply (see summary document 7 - Assessment and Award).
Exemption: Contract detail notices and publication of contracts (Section 53) The requirements to publish a contract details notice and a copy of the contract does not apply to private utilities.
Exemption: Procurement termination notices (Section 55) Private utilities do not have to publish a procurement termination notice.
Exemption: Standstill periods on the award of contracts (Section 51) the prohibition on entering into a contract before the end of a standstill period does not apply to private utilities when the award is made under direct award (Section 41 or switching to a direct award Section 43). A standstill is also not required for a contract that is awarded in accordance with a framework, including a utilities framework or by reference to a dynamic market, which includes utilities dynamic markets (including utilities dynamic markets established pursuant to a qualifying utilities dynamic market notice).
See Summary Document 7: Assessment and Award, for further information
8. Remedies, Procurement oversight and the Debarment List
The rules around remedies, procurement oversight and the debarment list generally apply to utilities
Exemption:Procurement Investigations (Section 108) a private utility is not considered a “relevant contracting authority” for the purposes of this section and as a result is not subject to procurement investigations under this section (although they may be required to have regard to guidance published following an investigation (see section 109).
Remember that when considering the debarment list that an excluded supplier (mandatory) is to be regarded as an excludable (discretionary) supplier by private utilities.
See Summary Document 8: Remedies, Procurement oversight and the Debarment List, for further information.
9. Contract Governance
There are a number of exemptions to the contract governance obligations (outlined in summary document 9 - Contract Governance) for private utilities contracts:
Exemption: Key Performance Indicators (Section 52) the requirement to set and publish key performance indicators does not apply to utilities contracts awarded by a private utility.
Exemption: Implied payment terms in public contracts (Section 68) these terms are not implied in a utilities contract awarded by a private utility.
Exemption: Payments compliance notices (Section 69) publishing a payments compliance notice does not apply to private utilities.
Exemption: Information about payments under public contracts (Section 70) publishing specified information about any payment of more than £30,000 does not apply to utilities contracts awarded by a private utility.
Exemption: Assessment of contract performance (Section 71) assessing and publishing performance information does not apply to private utilities.
Exemption: implied payment terms in sub-contracts (Section 73) payment terms are not implied into public sub-contracts that are for the purpose of performing (or contributing to the performance of) all or any part of a utilities contract awarded by a private utility.
Exemption: Contract change notices (Section 75) the requirement to publish a contract change notice before modifying a contract does not apply if the contract was awarded by a private utility.
Exemption: Publication of modifications (Section 77) the requirement to publish a modified contract or modification does not apply if the contract was awarded by a private utility.
Exemption: Contract termination notices (Section 80) the requirement to publish a contract termination notice does not apply to private utilities.
Exemption: Contract modifications (Schedule 8 permitted contract modifications 4(2), 5(2) and 8(2)) The 50% financial cap on the value of permitted modifications does not apply if the contract being modified is a utilities contract.
See Summary Document 9 Contract Governance, for further information
C. Key changes from UCR 2016
| Utilities Contracts Regulations 2016 | Procurement Act | Exemptions |
|---|---|---|
| Separate regime for utilities | Utilities under the same regime as other contracting authorities in accordance with the Procurement Act | n/a |
| Postal services were covered by the UCRs | Postal services are not a utility activity as they are not covered by international agreements and it is considered that there is now sufficient competition in the relevant market, therefore postal services fall outside the scope of the Procurement Act. | n/a |
| N/A |
The national procurement policy Statement (Section 13) A contracting authority must have regard to the national procurement policy statement |
Private utilities All contracting authorities in relation to the award of a contract in accordance with a framework, or a dynamic market |
| Qualification systems (Regulation 77) |
Competitive Award by reference to Dynamic Markets (Section 34) Qualification systems have been replaced by utilities dynamic markets, including markets set up under a qualifying utilities dynamic market notice |
n/a |
| Preliminary market consultations (Regulation 58) |
Preliminary market engagement notice (Section 17) This is a new notice that you must publish prior to publishing a tender notice if you undertake pre-market engagement activities. |
Private utilities |
| Restricted procedure (Regulation 46) Negotiated procedure with prior call for competition (Regulation 47) Competitive dialogue (Regulation 38) Innovation partnership (Regulation 49) |
Competitive Tendering Procedures (Section 20) The four multi-stage procedures have been reduced to a single competitive tendering procedure (known as the competitive flexible procedure), which provides the flexibility to design and undertake your own procedure as required. |
n/a |
| Use of exclusion grounds and selection criteria provided for under the Public Contracts Regulations (Regulation 80) | Excluding suppliers from a competitive award (Section 26) | For the purposes of a covered procurement carried out by a private utility an excluded supplier is to be regarded as an excludable supplier |
| Excluding suppliers from a competitive flexible procedure (Section 27) Exclusion grounds are now mandatory for utilities | ||
| Meaning of excluded and excludable supplier (Section 57) | ||
| Considering whether a supplier is excluded or excludable (Section 58) | ||
|
Contract award notices (Regulation 70) Published no later than 30 days after the award of a contract |
Contract award notices and assessment summaries (Section 50) A new notice that must be published prior to awarding a contract and after providing assessment summaries to suppliers that submitted an assessed tender |
n/a |
|
Contract details notices and publication of contracts (Section 53) Published no later than 30 days after the contract is entered into (unless the contract is a light touch contract, in which case the period is 120 days) |
Private utilities | |
| Conditions for performance of contracts (Regulation 86) |
Key performance indicators (Section 52) All contracts over £5m must set and publish a minimum of three KPIs designed to measure a supplier’s performance during the life-cycle of the contract. |
Private utilities |
| N/A |
Payments Compliance Notices (Section 69) New requirements to publish performance against 30 day payment terms |
Private utilities |
|
Information about payments under public contracts (Section 70) New requirements to publish payment information |
Private utilities | |
| N/A |
Modifying a public contract (Section 74) Allows for contract modifications to below-threshold contracts that, as a result of the modification, will become a public contract (a “convertible contract”). That contract would then become a public contract that is within scope of the Act. |
n/a |
| N/A |
Contract termination notices (Section 80) A new notice that must be published within 30 days of the date a contract is terminated. |
Private Utilities |
| N/A |
Conflicts assessment (Section 83) There is now a clear obligation to carry out and keep under review a conflicts of interest assessment, to record this and to confirm in the applicable notice this has been done. The conflicts assessment has to be reviewed and updated as necessary throughout the procurement. |
n/a |
| N/A |
Pipeline notices (Section 93) A new requirement for contracting authorities with an expected annual procurement spend of £100m+ to publish a pipeline notice within 56 days of the start of each financial year for any procurement over £2m due to take place within that year. |
Private utilities |
| N/A |
Procurement Investigations (Section 108) Sets out that relevant authorities can carry out procurement investigations relating to contracting authority compliance with the Act and publish the results. |
Private utilities |
|
Recommendations following procurement Investigations (Section 109) Sets out the contracting authority’s obligations if it receives “section 109 recommendations” following a procurement investigation. |
Private utilities | |
|
Guidance following procurement Investigations (Section 110) Sets out that contracting authorities must have regard to any relevant guidance published following procurement investigations. |
n/a |
Change: Utilities can no longer group together contract award notices for contracts entered into under dynamic purchasing systems and hold them for publication at the end of each quarter, they must now be published (as individual contract details notices under the Act) within 30 days of the contract being entered into (or 120 days in the case of a light touch contract). A copy of the contract, if over £5m, must be published within 90 days of the contract being entered into (except in the case of private utilities).
Change: Under the UCRs exclusion grounds were not mandated (although following the PCR 2015 exclusions process was considered best practice). Exclusion grounds now apply in full to procurements carried out by utilities, although are discretionary for private utilities. See the summary document 6 - supplier selection for further details.
82. Utilities: Process flows
Open procedure
1. Publish planned procurement notice (optional) or qualifying planned procurement notice (min 40 days before tender notice if using to reduce timescales).
2. Publish preliminary market engagement notice and undertake preliminary market engagement.
You must publish a preliminary market engagement notice if undertaking preliminary market engagement, but preliminary market engagement is optional. Exemption: private utilities.
3. Publish tender notice for open procedure.
4. Observe minimum tender timescales.
5. Determine whether the supplier is an excluded or an excludable supplier.
6. Assess whether the tender is suitable, including:
a. Assessing the conditions of participation.
b. Where a supplier or any of their nominated subcontractor is not a UK or treaty state supplier whether you choose to disregard the tender.
c. Whether the tendered price is abnormally low.
d. Whether there is evidence of corruption or collusion.
e. Whether the tender meets all of the requirements.
f. Whether the tender has breached any procedural requirements.
7. Assess award criteria.
8. Issue assessment summaries.
9. Publish contract award notice.
10. Standstill period - 8 working days.
11. Enter into contract (providing no issues were raised during standstill).
12. Publish contract details notice (Inc. contract if over £5m). Exemption: private utilities.
13. Could happen at any time during the term of the contract:
a. Publish contract payment notice (where applicable - payments over £30k). Exemption: private utilities.
b. Publish contract performance notice (where applicable). Exemption: private utilities.
c. Publish payments compliance notice. Exemption: private utilities.
d. Publish contract change notice (if / when modifications are made) and copy of the modified contract (where applicable - contracts over £5m). Exemption: private utilities.
e. Voluntary standstill period (8 working days) if and when modifications are made and a contract change notice has been published.
14. Publish contract termination notice. Exemption: private utilities.
Direct award
1. Identify requirement.
2. Ensure direct award ground is met.
3. Option to publish a transparency notice now.
4. Identify supplier(s).
5. Assess best value (informal competition where appropriate).
6. Determine whether the supplier is an excluded or an excludable supplier.
7. Publish transparency notice if not already done so.
8. Agree terms.
9. Publish contract award notice.
10. Standstill period - 8 working days (unless contract is based on grounds of urgency or to protect life etc). Exemption: private utilities.
11. Enter into contract (providing no issues were raised during standstill).
12. Publish contract details notice (Inc. contract if over £5m). Exemption: private utilities.
13. Could happen at any time during the term of the contract:
a. Publish contract payment notice (where applicable - payments over £30k). Exemption: private utilities.
b. Publish contract performance notice (where applicable). Exemption: private utilities.
c. Publish payments compliance notice. Exemption: private utilities.
d. Publish contract change notice (if / when modifications are made) and copy of the modified contract (where applicable - contracts over £5m). Exemption: private utilities.
e. Voluntary standstill period (8 working days) if and when modifications are made and a contract change notice has been published.
14. Publish contract termination notice. Exemption: private utilities.
Establishing a utilities framework
A utilities framework is a framework which provides for the future award of utilities contracts.
1. Publish planned procurement notice (optional) or qualifying planned procurement notice (min 40 days before tender notice if using to reduce timescales).
2. Publish preliminary market engagement notice and undertake preliminary market engagement.
You must publish a preliminary market engagement notice if undertaking preliminary market engagement, but preliminary market engagement is optional. Exemption: private utilities.
3. Publish tender notice and associated tender documents for frameworks based on competitive procedure (open or competitive flexible procedure).
4. Observe minimum participation or tender timescales.
5. Determine whether the supplier is an excluded or an excludable supplier.
6. Assess whether the tender is suitable, including:
a. Assessing the conditions of participation.
b. Where a supplier or any of their nominated subcontractor is not a UK or treaty state supplier whether you choose to disregard the tender.
c. Whether the tendered price is abnormally low.
d. Whether there is evidence of corruption or collusion.
e. Whether the tender meets all of the requirements.
f. Whether the tender has breached any procedural requirements.
7. Assess award criteria.
8. Issue assessment summaries.
9. Publish contract award notice.
10. Standstill period - 8 working days.
11. Enter into contract (providing no issues were raised during standstill).
12. Publish contract details notice (Inc. contract if over £5m). Exemption: private utilities.
13. Could happen at any time during the term of the framework:
a. Publish contract change notice (if / when modifications are made). Exemption: private utilities.
b. Voluntary standstill period (8 working days) if and when modifications are made.
c. Contract performance notice (in the event of breach or poor performance of the framework contract as specified in the T&Cs). Exemption:private utilities.
14. Publish contract termination notice when framework comes to an end. Exemption: private utilities.
Establishing an open framework (initial and every framework in the scheme)
1. Publish planned procurement notice (optional) or qualifying planned procurement notice (min 40 days before tender notice if using to reduce timescales).
2. Publish preliminary market engagement notice and undertake preliminary market engagement.
You must publish a preliminary market engagement notice if undertaking preliminary market engagement, but preliminary market engagement is optional. Exemption: private utilities.
3. Publish tender notice and associated tender documents for frameworks based on competitive procedure (open or competitive flexible procedure).
4. Observe minimum participation or tender timescales.
5. Determine whether the supplier is an excluded or an excludable supplier.
6. Assess whether the tender is suitable, including:
a. Assessing the conditions of participation.
b. Where a supplier or any of their nominated subcontractor is not a UK or treaty state supplier whether you choose to disregard the tender.
c. Whether the tendered price is abnormally low.
d. Whether there is evidence of corruption or collusion.
e. Whether the tender meets all of the requirements.
f. Whether the tender has breached any procedural requirements.
7. Assess award criteria.
8. Issue assessment summaries.
9. Publish contract award notice.
10. Standstill period - 8 working days.
11. Enter into contract (providing no issues were raised during standstill).
12. Publish contract details notice (Inc. contract if over £5m). Exemption: private utilities.
13. Could happen at any time during the term of the open framework:
a. Publish contract change notice (if / when modifications are made). Exemption: private utilities.
b. Voluntary standstill period (8 working days) if and when modifications are made.
c. Contract performance notice (in the event of breach or poor performance of the framework contract as specified in the T&Cs). Exemption: private utilities.
14. Repeat process for reopening (linking back to initial notice).
15. Publish contract termination notice when framework comes to an end. Exemption: private utilities.
Awarding a utilities contract under utilities framework - with competition
1. Invite suppliers to tender (in accordance with the procedure allowed for within the framework).
2. Observe tender timescales (no minimum applies).
3. Determine whether the supplier is an excluded or an excludable supplier.
4. Assess submissions.
5. Optional: issue assessment feedback.
6. Publish contract award notice.
7. Optional: voluntary standstill period - 8 working days.
8. Enter into contract (providing no issues were raised during voluntary standstill if applied).
9. Publish contract details notice (Inc. contract if over £5m). Exemption: private utilities.
10. Could happen at any time during the term of the contract:
a. Publish contract payment notice (where applicable - payments over £30k). Exemption: private utilities.
b. Publish contract performance notice (where applicable). Exemption: private utilities.
c. Publish payments compliance notice. Exemption: private utilities.
d. Publish contract change notice (if / when modifications are made). Exemption: private utilities.
e. Voluntary standstill period (8 working days) if and when modifications are made.
11. Publish contract termination notice. Exemption: private utilities.
Awarding a utilities contract under utilities framework - without competition
1. Assess relevant suppliers in accordance with the framework process.
2. Publish contract award notice.
3. Optional: voluntary standstill period - 8 working days.
4. Enter into contract (providing no issues were raised during voluntary standstill if applied).
5. Publish contract details notice (Inc. contract if over £5m). Exemption: private utilities.
6. Could happen at any time during the term of the contract:
a. Publish contract payment notice (where applicable - payments over £30k). Exemption: private utilities.
b. Publish contract performance notice (where applicable). Exemption: private utilities.
c. Publish payments compliance notice. Exemption: private utilities.
d. Publish contract change notice (if / when modifications are made). Exemption: private utilities.
e. Voluntary standstill period (8 working days) if and when modifications are made.
7. Publish contract termination notice. Exemption: private utilities.
Establishing a utilities dynamic market
1. Publish preliminary market engagement notice and undertake preliminary market engagement.
You must publish a preliminary market engagement notice if undertaking preliminary market engagement, but preliminary market engagement is optional. Exemption: private utilities.
2. Publish a utilities dynamic market notice.
3. Assess applications for membership within a reasonable period.
4. Notify suppliers.
5. Publish the utilities dynamic market notice with suppliers that have been added.
6. Publish the utilities dynamic market notice (if / when modifications are made).
7. Publish the utilities dynamic market notice when terminating the utilities dynamic market. Exemption: private utilities.
Awarding a utilities contract under a utilities dynamic market
1. Publish tender notice (competitive flexible procedure must be used).
2. No minimum timescales where the tendering period is agreed by all, otherwise 10 days minimum tender period.
3. Determine whether the supplier is an excluded or an excludable supplier.
4. Follow process outlined in tender document for the assessment of tenders.
5. Issue assessment summaries.
6. Publish contract award notice.
7. Optional: voluntary standstill period - 8 working days.
8. Enter into contract (providing no issues were raised during standstill if applied).
9. Publish contract details notice and contract where applicable - contracts over £5m. Exemption: private utilities.
10. Could happen at any time during the term of the contract:
a. Publish contract performance notice (where applicable). Exemption: private utilities.
b. Publish payments compliance notice. Exemption: private utilities.
c. Publish contract change notice (if / when modifications are made). Exemption: private utilities.
d. Voluntary standstill period (8 working days) if and when modifications are made.
11. Publish contract termination notice. Exemption: private utilities.
Establishing a utilities dynamic market by reference to a qualifying utilities dynamic market notice
1. Publish preliminary market engagement notice and undertake preliminary market engagement.
You must publish a preliminary market engagement notice if undertaking preliminary market engagement, but preliminary market engagement is optional. Exemption: private utilities.
2. Publish a qualifying utilities dynamic market notice.
3. Assess applications for membership within a reasonable period.
4. Notify suppliers.
5. Publish qualifying utilities dynamic market notice with suppliers that have been added.
6. Publish qualifying utilities dynamic market notice (if / when modifications are made).
7. Publish qualifying utilities dynamic market notice when terminating the utilities dynamic market. Exemption: private utilities.
Awarding a utilities contract under a dynamic market established by a qualifying utilities dynamic market notice
1. Provide the tender notice (competitive flexible procedure must be used) to members of the market or appropriate part of the market.
2. No minimum timescales where the tendering period is agreed by all, otherwise 10 days minimum tender period.
3. Determine whether the supplier is an excluded or an excludable supplier.
4. Follow process outlined in tender document for the assessment of tenders.
5. Issue assessment summaries.
6. Publish contract award notice.
7. Optional: voluntary standstill period - 8 working days.
8. Enter into contract (providing no issues were raised during standstill if applied).
9. Publish contract details notice and contract where applicable - contracts over £5m. Exemption: private utilities.
10. Could happen at any time during the term of the contract:
1. Publish contract performance notice (where applicable). Exemption: private utilities.
2. Publish payments compliance notice. Exemption: private utilities.
3. Publish contract change notice (if / when modifications are made). Exemption: private utilities.
4. Voluntary standstill period (8 working days) if and when modifications are made.
11. Publish contract termination notice. Exemption: private utilities.
83. Utilities transparency requirements
This content applies to utilities contracts. It covers all of the transparency publication requirements that apply across the Act, and maps these against the notices published when undertaking a procurement process under UCR 2015.
| Procurement lifecycle stage | Notice name | Publication requirement (in the regulations some notices are listed as having separate versions depending on the procurement process, e.g. open, competitive flexible and below-threshold) | Exemptions | Change from UCR 2016 |
|---|---|---|---|---|
| Plan | Pipeline notice | Mandatory for organisations with £100m+ spend per annum. Publish 12-month forward-look at planned procurements of £2m+. | Private utilities | N/A - new notice |
| Define | Preliminary market engagement notice | Optional and best practice, must be published where pre-market engagement is anticipated or has taken place (or reason for non-publication explained in tender notice). | Private utilities | N/A - new notice |
| Procure | Planned procurement notice | Optional and best practice, advises the market of an upcoming procurement. A qualifying planned procurement notice can reduce tender timescales to 10 days. | Periodic indicative notice | |
| Procure | Tender notice (separate versions of the notice for open, competitive flexible, frameworks, dynamic markets and below-threshold contract) | Mandatory for below-threshold open, competitive flexible and regulated procurements; to establish a framework; to award a contract under an existing dynamic market. | Qualifying utilities dynamic markets (existing or pending members of the market may be invited directly without publishing a tender notice) | Contract notice |
| Procure | Transparency notice | Mandatory when undertaking a direct award (publish prior to award). | Voluntary Ex Ante Transparency (VEAT) Notice | |
| Procure | Contract award notice (separate versions of the notice for private utilities) | Mandatory (communicates the outcome of the procurement and commences standstill prior to awarding a contract). | N/A - new notice | |
| Procure | Contract details notice (separate versions of the notice for frameworks, framework call offs, direct awards and below-threshold contract) | Mandatory - details of the awarded contract (including the redacted contract, for public contracts £5m+). | Private utilities | Contract award notice |
| Manage | Contract payment notice | Mandatory - details of individual payments over £30,000 made under a public contract (published quarterly). | Utilities contracts awarded by a private utility | N/A - new notice |
| Manage | Contract performance notice |
Mandatory to report: a. KPI scores for public contracts valued £5m+ (annually) b. poor supplier performance / breach of contract (within 30 days) |
Private utilities | N/A - new notice |
| Manage | Contract change notice | Mandatory prior to a qualifying modification taking place. Voluntary standstill. Where modification results in total contract value of +£5m, modified contract or modification details to be published within 90-days of modification. | Private utilities | Modification notice |
| Manage | Contract termination notice | Mandatory when a public contract ends. | Private utilities | N/A - new notice |
| Procure | Procurement termination notice | Mandatory where, after publishing a tender or transparency notice, the process is terminated without awarding a contract. | Private utilities | Corrigendum notice |
| Procure | Dynamic market notice | Mandatory for advertising, establishing, changing or terminating a dynamic market. | Private utilities are not required to update the dynamic market notice when the market ceases to operate | Qualification system |
| Manage | Payments compliance notice | Mandatory - details of contracting authority performance against 30-day payment terms (twice annually). | Private utilities | N/A - new notice |
84. Procurement Act sections: Which sections apply to utilities contracts and private utilities
Part 1 key definitions
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 1. Procurement and covered procurement | Yes | Yes |
| 2. Contracting authorities | Yes - in the case of a utilities contract, ‘contracting authority’ means a public authority, public undertaking or private utility, other than an excluded authority ‘Public authority’ means a person that is: a. wholly or mainly funded out of public funds, or b. subject to public authority oversight, and does not operate on a commercial basis - but see subsections (9) and (10) ‘Public undertaking’ means a person that: a. is subject to public authority oversight, and b. operates on a commercial basis |
Yes - in the case of a utilities contract, ‘contracting authority’ means a public authority, public undertaking or private utility, other than an excluded authority ‘Private utility’ means a person that: a. is not a public authority or public undertaking, and b. carries out a utility activity |
| 3. Public contracts | Yes | Yes |
| 4. Valuation of contracts | Yes | Yes |
| 5. Mixed procurement: above and below threshold | Yes | Yes |
| 6. Utilities contracts | Yes - a reference to a utilities contract includes a reference to a framework for the future award of contracts for the supply of goods, services or works wholly or mainly for the purpose of a utility activity | Yes - a reference to a utilities contract includes a reference to a framework for the future award of contracts for the supply of goods, services or works wholly or mainly for the purpose of a utility activities |
| 7. Defence and security contracts | Yes - whilst utilities are not specifically excluded from this section, they are very unlikely to ever place a defence and security contract | Yes |
| 8. Concession contracts | Yes | Yes |
| 9. Light touch contracts | Yes | Yes |
| 10. Mixed procurement: special regime contracts | Yes | Yes |
Part 2 principles and objectives
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 11. Covered procurement only in accordance with this act | Yes | Yes |
| 12. Covered procurement: objectives | Yes | Yes |
| 13. The national procurement policy statement | Yes | No |
| 14. The Wales procurement policy statement | Yes | No |
Part 3 award of public contracts and procedures
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 15. Planned procurement notice | Yes | Yes |
| 16. Preliminary market engagement | Yes | Yes |
| 17. Preliminary market engagement notices | Yes | No |
| 18. Duty to consider lots | Yes | Yes |
| 19. Award of public contracts following a competitive procedure | Yes | Yes |
| 20. Competitive tendering procedures | Yes | Yes |
| 21. Tender notices and associated tender documents | Yes - qualifying utilities dynamic markets (tender notices do not have to be published but can be provided to existing members of the market) | Yes - qualifying utilities dynamic markets (tender notices do not have to be published but can be provided to existing members of the market) |
| 22. Conditions of participation | Yes | Yes |
| 23. Award criteria | Yes | Yes |
| 24. Refining award criteria | Yes | Yes |
| 25. Sub-contracting specifications | Yes | Yes |
| 26. Excluding suppliers from a competitive award | Yes | Yes |
| 27. Excluding suppliers from a competitive flexible procedure | Yes | Yes |
| 28. Excluding suppliers by reference to sub-contractors | Yes | Yes |
| 29. Excluding a supplier that is a threat to national security | Yes | Yes |
| 30. Excluding suppliers for improper behaviour | Yes | Yes |
| 31. Modifying a section 19 procurement | Yes | Yes |
| 32. Reserving contracts to supported employment providers | Yes | Yes |
| 33. Reserving contracts to public service mutuals | No | No |
| 34. Competitive award by reference to dynamic markets | Yes - if the utilities dynamic market was established by reference to a qualifying utilities dynamic market notice contracting authorities have discretion whether to provide a tender notice to suppliers that are still being considered for membership of the market, or part of the market | Yes - if the utilities dynamic market was established by reference to a qualifying utilities dynamic market notice contracting authorities have discretion whether to provide a tender notice to suppliers that are still being considered for membership of the market, or part of the market |
| 35. Dynamic markets: establishment | Yes | Yes |
| 36. Dynamic markets: membership | Yes | Yes |
| 37. Dynamic markets: removing members from a market | Yes | Yes |
| 38. Dynamic markets: fees | Yes - utilities dynamic markets may provide for the charging of fees to suppliers in connection with obtaining and maintaining membership of the market They can not provide for charging fees to suppliers that are awarded a contract by reference to their membership of the utilities dynamic market |
Yes - utilities dynamic markets may provide for the charging of fees to suppliers in connection with obtaining and maintaining membership of the market They can not provide for charging fees to suppliers that are awarded a contract by reference to their membership of the utilities dynamic market |
| 39. Dynamic market notices | Yes | Yes with exemptions - private utilities do not have to publish a notice to confirm the dynamic market has ceased to operate |
| 40. Qualifying utilities dynamic market notices: no duty to publish a tender notice | Yes | Yes |
| 41. Direct award in special cases | Yes | Yes |
| 42. Direct award to protect life etc | Yes | Yes |
| 43. Switching to direct award | Yes | Yes |
| 44. Transparency notices | Yes | Yes |
| 45. Frameworks | Yes | Yes |
| 46. Frameworks: competitive selection process | Yes | Yes |
| 47. Frameworks: maximum terms | Yes | No |
| 48. Frameworks: implied terms | Yes | Yes |
| 49. Open frameworks | Yes | Yes |
| 50. Contract award notices and assessment summaries | Yes | Yes |
| 51. Standstill periods on the award of contracts | Yes - a standstill is also not required for a contract that is awarded in accordance with a framework, including a utilities framework or by reference to a dynamic market, which includes utility dynamic markets and qualified utility dynamic markets | Yes with exceptions - the prohibition on entering into a contract before the end of a standstill period does not apply to private utilities when the award is made under direct award (section 41) or switching to a direct award section 43) A standstill is also not required for a contract that is awarded in accordance with a framework, including a utilities framework or by reference to a dynamic market, which includes utility dynamic markets and qualified utility dynamic markets |
| 52. Key performance indicators | Yes - exceptions - frameworks | No |
| 53. Contract details notices and publication of contracts | Yes | No |
| 54. Time limits | Yes | Yes |
| 55. Procurement termination notices | Yes | No |
| 56. Technical specifications | Yes | Yes |
| 57. Meaning of excluded and excludable supplier | Yes | Yes with exemptions - for private utilities an excluded supplier is to be regarded as an excludable supplier |
| 58. Considering whether a supplier is excluded or excludable | Yes | Yes |
| 59. Notification of exclusion of supplier | Yes | Yes |
| 60. Investigations of supplier: exclusion grounds | Yes | Yes |
| 61. Investigation under section 60: reports | Yes | Yes |
| 62. Debarment list | Yes | Yes |
| 63. Debarment decisions: interim relief | Yes | Yes |
| 64. Debarment list: application for approval | Yes | Yes |
| 65. Debarment decisions: appeals | Yes | Yes |
| 66. Debarment proceedings and closed material procedure | Yes | Yes |
Part 4 management of public contracts
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 67. Electronic invoicing: implied term | Yes | Yes |
| 68. Implied payment terms in public contracts | Yes | No |
| 69. Payment compliance notices | Yes | No |
| 70. Information about payments under public contracts | Yes | No |
| 71. Assessment of contract performance | Yes | No |
| 72. Sub-contracting: directions | Yes | Yes |
| 73. Implied terms in sub-contracts | Yes | No |
| 74. Modifying a public contract | Yes | Yes |
| 75. Contract change notices | Yes | No |
| 76. Voluntary standstill period on the modification of contracts | Yes | No |
| 77. Publication of modifications | Yes | No |
| 78. Implied right to terminate public contracts | Yes | Yes |
| 79. Terminating public contracts: national security | Yes | Yes |
| 80. Contract termination notices | Yes | No |
Part 5 conflicts of interest
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 81. Conflicts of interest: duty to identify | Yes | Yes |
| 82. Conflicts of interest: duty to mitigate | Yes | Yes |
| 83. Conflicts assessments | Yes | Yes |
Part 6 below-threshold contracts
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 84. Regulated below-threshold contracts | No | No |
| 85. Regulated below-threshold contracts: procedure | No | No |
| 86. Regulated below-threshold contracts: duty to consider small and medium-sized enterprises | No | No |
| 87. Regulated below-threshold contracts: notices | No | No |
| 88. Regulated below-threshold contracts: implied payment terms | No | No |
Part 7 implementation of international obligations
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 89. Treaty state suppliers | Yes | Yes |
| 90. Treaty state suppliers: non-discrimination | Yes | Yes |
| 91. Treaty state suppliers: non-discrimination in Scotland | Yes | Yes |
| 92. Trade disputes | Yes | Yes |
Part 8 information and notices: general provisions
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 93. Pipeline notices | Yes | No |
| 94. General exemptions from duties to publish or disclose information | Yes | Yes |
| 95. Notices, documents and information: regulations and online system | Yes | Yes |
| 96. Electronic communications | Yes | Yes |
| 97. Information relating to a procurement | Yes | Yes |
| 98. Record keeping | Yes | Yes |
| 99. Data protection | Yes | Yes |
Part 9 remedies for breach of statutory duty
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 100. Duties under this act enforceable in civil proceedings | Yes | Yes |
| 101. Automatic suspension of the entry into or modification of contracts | Yes | Yes |
| 102. Interim remedies | Yes | Yes |
| 103. Pre-contractual remedies | Yes | Yes |
| 104. Post-contractual remedies | Yes | Yes |
| 105. Post-contractual remedies: set aside conditions | Yes | Yes |
| 106. Time limits on claims | Yes | Yes |
| 107. Part 9 proceedings and closed material procedure | Yes | Yes |
Part 10 procurement oversight
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 108. Procurement investigations | Yes | No - the published guidance will specify who has to adhere to the guidance |
| 109. Recommendations following procurement investigations | Yes | No |
| 110. Guidance following procurement investigations | Yes | Yes - the published guidance will specify who has to adhere to the guidance |
Part 11 appropriate authorities and cross-border procurement
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 111. Welsh Ministers: restrictions on the exercise of powers | Yes | Yes |
| 112. Northern Ireland department: restrictions on the exercise of powers | Yes | Yes |
| 113. Minister of the Crown: restrictions on the exercise of powers | Yes | Yes |
| 114. Definitions relating to procurement arrangements | Yes | Yes |
| 115. Powers relating to procurement arrangements | Yes | Yes |
Part 12 amendments and appeals
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 116. Disapplication of duty in section 17 of the Local Government Act 1988 | No | No |
| 117. Single source defence contracts | No | No |
| 118. Concurrent powers and the Government of Wales Act 2006 | No | No |
| 119. Repeals etc | Yes | Yes |
Part 13 general
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 120. Application of this act to procurement by NHS England | No | No |
| 121. Power to amend this act in relation to private utilities | No | Yes |
| 122. Regulations | Yes | Yes |
| 123. Interpretation | Yes | Yes |
| 124. Index of defined expressions | Yes | Yes |
| 125. Power to make consequential, etc, provision | Yes | Yes |
| 126. Extent | Yes | Yes |
| 127. Commencement | Yes | Yes |
| 128. Short title | Yes | Yes |
Schedules
| Section | Is it applicable to utilities contracts? | Is it applicable to private utilities? |
|---|---|---|
| 1. Threshold amounts | Yes | Yes |
| 2. Exempted contracts | Yes | Yes |
| 3. Estimating the value of a contract | Yes | Yes |
| 4. Utility activities | Yes | Yes |
| 5. Direct award justifications | Yes | Yes |
| 6. Mandatory exclusion grounds | Yes | Yes |
| 7. Discretionary exclusion grounds | Yes | Yes |
| 8. Permitted contract modifications | Yes with exemptions 50% threshold for modifying contracts for unforeseeable circumstances does not apply to utility contracts 50% threshold for modifying contracts for materialisation of a known risk does not apply to utility contracts 50% threshold for modifying contracts for additional goods, services or works does not apply to utility contracts |
Yes with exemptions 50% threshold for modifying contracts for unforeseeable circumstances does not apply to utility contracts 50% threshold for modifying contracts for materialisation of a known risk does not apply to utility contracts 50% threshold for modifying contracts for additional goods, services or works does not apply to utility contracts |
| 9. Treaty state suppliers (specified international agreements) | Yes | Yes |
| 10. Single source defence contracts | No | No |
| 11. Repeals and revocations | Yes | Yes |