The Public Contracts (Scotland) Regulations 2006

Public works concession contracts

36.—(1) A contracting authority seeking offers in relation to a public works concession contract shall comply with this regulation.

(2) These Regulations do not apply to the seeking of offers in relation to a proposed public works concession contract where the estimated value of the contract (net of value added tax) at the relevant time is less than 5,278,000 euro.

(3) In this regulation “relevant time” has the same meaning it has in regulation 8(20).

(4) The estimated value of a public works concession contract for the purposes of paragraph (2) shall be the value of the consideration which the contracting authority would expect to give for the carrying out of the work or works if it did not propose to grant a concession.

(5) The value of the consideration under a public works concession contract shall be calculated in accordance with regulation 8(6).

(6) These Regulations shall not apply to the seeking of offers in relation to a proposed public works concession contract–

(a) where–

(i) the contracting authority is a utility within the meaning of regulation 3 of the Utilities Contracts (Scotland) Regulations 2006; and

(ii) the work or works to be carried out under it are for the purposes of carrying out an activity specified in any Part of Schedule 1 to those Regulations in which the utility is specified;

(b) where the principal purpose of the contract is to permit the contracting authority to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services;

(c) 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 require it;

(d) where Article 296 of the EC Treaty applies to that public works concession contract;

(e) where different procedures 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 the carrying out of works intended for the joint implementation or exploitation of a project related to that agreement;

(ii) an international agreement relating to the stationing of troops and concerning the undertakings of a relevant State; 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; or

(f) subject to paragraph (7), when a contracting authority wants an economic operator which has entered into a public works concession contract with the contracting authority to carry out additional work or works which were not included in the project initially considered or in the original public works concession contract but which through unforeseen circumstances have become necessary, and such work or works–

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

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

(7) Paragraph (6)(f) does not apply where the aggregate value of the consideration to be given under contracts for the additional work or works exceeds 50% of the value of the consideration payable under the original contract.

(8) The contracting authority shall–

(a) publicise its intention to seek offers in relation to the public works concession contract by sending to the Official Journal as soon as possible after forming the intention a notice in the form of the public works concession contract notice in Annex X to Commission Regulation (EC) No. 1564/2005 and containing the information therein specified and any other information which the contracting authority considers useful; and

(b) comply with regulation 42 in relation to a public works concession contract notice as it would comply in relation to a proposed public contract.

(9) Subject to paragraphs (10) and (13), the date which the contracting authority fixes as the last date for the receipt by it of tenders or of requests to be selected to tender for or to negotiate the contract, shall be specified in the contract notice and shall be not less than 52 days from the date of despatch of the notice.

(10) Where the contracting authority has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limit referred to in paragraph (9) may be reduced by 7 days.

(11) The contracting authority 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 and any fee specified in the contract notice has accompanied the request.

(12) The contracting authority 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 contracting authority 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.

(13) The contracting authority shall extend the time limit for the 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 the contracting authority to respond in accordance with paragraphs (11) and (12) 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.