The Concession Contracts (Scotland) Regulations 2016

CHAPTER 6 S GENERAL PRINCIPLES

Concession notice S

33.—(1) A contracting entity wishing to award a concession contract, other than a concession contract for social and other specific services listed in Schedule 3, must make known their intention through the publication of a concession notice.

(2) Such a concession notice must contain—

(a) the information set out in Annex V to the Concession Contracts Directive, [F1 but as if—

(i) in paragraph 3, “Article 34(2)” were a reference to regulation 36(3) of these Regulations,

(ii) in paragraph 10, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations, and

(iii) paragraph 15 (financing by EU funds) were omitted]; and

(b) any other information that the contracting entity considers useful;

F2 ...

(3) A contracting entity wishing to award a concession contract for social and other specific services listed in Schedule 3 must make known their intention of a planned concession contract award through the publication of a prior information notice.

(4) Such a prior information notice must contain the information set out in Annex VI to the Concession Contracts Directive and must be in the format of the standard forms set out in Commission Implementing Regulation 2015/1986.

(5) This regulation does not apply in any of the following cases—

(a) if no applications, no suitable applications, no tenders or no suitable tenders have been submitted in response to a prior procurement for the award of a concession contract, provided that the initial conditions of the concession contract are not substantially altered and that a report is sent to the [F3 Scottish Ministers if they so request];

(b) if the works or services can be supplied only by a particular economic operator for any of the following reasons—

(i) the aim of the concession contract is the creation or acquisition of a unique work of art or artistic performance;

(ii) competition is absent for technical reasons;

(iii) the existence of an exclusive right;

(iv) the protection of intellectual property rights and exclusive rights other than exclusive rights as defined in regulation 2 (interpretation),

but only, in the case of sub-paragraphs (ii) to (iv), if no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the concession contract award.

(6) For the purposes of paragraph (5)(a)—

(a) a tender must be considered not to be suitable if it is irrelevant to the concession contract, being manifestly incapable, without substantial changes, of meeting the contracting entity’s needs and requirements as specified in the concession documents;

(b) an application must be considered not to be suitable if—

(i) the applicant concerned is to be or may be excluded under regulation 40 (exclusion grounds) or does not meet the selection criteria set out by the contracting entity in accordance with regulation 41(1) to (3) (selection of and qualitative assessment of candidates);

(ii) the application includes tenders which are considered not to be suitable as described in sub-paragraph (a).

Textual Amendments

F1 Reg. 33(2)(a)(i)-(iii) and words inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(19)(a) (with sch. paras. 1-5)

F2 Words in reg. 33(2) omitted (31.12.2020) by virtue of The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(19)(b) (with sch. paras. 1-5)

F3 Words in reg. 33(5)(a) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(19)(c) (with sch. paras. 1-5)

Commencement Information

I1 Reg. 33 in force at 18.4.2016, see reg. 1(2)

Concession contract award notice S

34.—(1) Not later than 48 days after the award of a concession contract, the contracting entity must [F4 submit] for publication a concession contract award notice in accordance with regulation 35 (form and manner of publication of notices).

(2) A concession contract award notice for social and other specific services listed in Schedule 3 may be grouped for publication on a quarterly basis, in which case the contracting entity must [F5 submit] the grouped notices for publication within 48 days of the end of each quarter.

(3) [F6 Subject to paragraph (4), a concession contract award] notice must contain the information set out in Annex VII to the Concession Contracts Directive, or in the case of a concession contract for social and other specific services listed in Schedule 3, the information set out in Annex VIII to that Directive.

[F7 (4) In paragraph (3), the reference to Annex VII is a reference to that Annex, but as if—

(a) in paragraph (7), “Article 41” were a reference to regulation 44 of these Regulations,

(b) in paragraph (11)(c), “Article 8(3)” were a reference to regulation 8(6) and (7) of these Regulations,

(c) paragraph (12) (financing by EU funds) were omitted,

(d) in paragraph (14), “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Concession Contracts (Scotland) Regulations 2016), and

(e) in paragraph (15), “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.]

Textual Amendments

F4 Word in reg. 34(1) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(20)(a) (with sch. paras. 1-5)

F5 Word in reg. 34(2) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(20)(a) (with sch. paras. 1-5)

F6 Words in reg. 34(3) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(20)(b) (with sch. paras. 1-5)

F7 Reg. 34(4) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(20)(c) (with sch. paras. 1-5)

Commencement Information

I2 Reg. 34 in force at 18.4.2016, see reg. 1(2)

Form and manner of publication of notices S

35.—(1) A notice required by regulation 33 (concession notice), 34 (concession contract award notice) and 46(3) (modification of contracts) to be [F8 submitted] for publication in accordance with this regulation (and any corrigenda to a notice) [F9 must be submitted to the UK e-notification service for publication]

F10 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) If the [F11 the provider of the UK e-notification service] has given the contracting entity confirmation of F12 ... the publication of the information [F13 submitted], indicating the date of that publication, that confirmation shall constitute proof of publication.

(3) The notices referred to in regulations 33, 34 and 46(3) must not be published [F14 otherwise than on the UK e-notification service] before they are published [F15 on that service] unless publication [F16 on that service] does not take place within 48 hours after [F17 the notice was submitted to that service].

(4) Notices published [F18 otherwise than on the UK e-notification service] must not contain information other than that contained in the notices [F19 submitted to that service] but must indicate the date of [F20 submission of the notice to that service].

[F21 (5) In these Regulations, “the UK e-notification service” has the meaning given by regulation 52(5) of the Public Contracts (Scotland) Regulations 2015.

(6) For the purposes of these Regulations, a notice of any description is submitted to the UK e-notification service if the information comprising the notice is entered in the portal in such form or manner as the portal may elicit it and in compliance with any specific instructions that are given within the portal about how the information, or any particular element of it, is to be entered.]

Textual Amendments

F8 Word in reg. 35(1) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(a)(i)(aa) (with sch. paras. 1-5)

F9 Words in reg. 35(1) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(a)(i)(bb) (with sch. paras. 1-5)

F10 Reg. 35(1)(a)(b) omitted (31.12.2020) by virtue of The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(a)(ii) (with sch. paras. 1-5)

F11 Words in reg. 35(2) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(b)(i) (with sch. paras. 1-5)

F12 Words in reg. 35(2) omitted (31.12.2020) by virtue of The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(b)(ii) (with sch. paras. 1-5)

F13 Word in reg. 35(2) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(b)(iii) (with sch. paras. 1-5)

F14 Words in reg. 35(3) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(c)(i) (with sch. paras. 1-5)

F15 Words in reg. 35(3) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(c)(ii) (with sch. paras. 1-5)

F16 Words in reg. 35(3) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(c)(iii) (with sch. paras. 1-5)

F17 Words in reg. 35(3) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(c)(iv) (with sch. paras. 1-5)

F18 Words in reg. 35(4) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(d)(i) (with sch. paras. 1-5)

F19 Words in reg. 35(4) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(d)(ii) (with sch. paras. 1-5)

F20 Words in reg. 35(4) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(d)(iii) (with sch. paras. 1-5)

F21 Reg. 35(5)(6) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(21)(e) (with sch. paras. 1-5)

Commencement Information

I3 Reg. 35 in force at 18.4.2016, see reg. 1(2)

Electronic availability of concession documents S

36.—(1) A contracting entity must, by means of the internet, offer unrestricted and full direct access free of charge to the concession documents from the date of the publication [F22 on the UK e-notification service] of a concession notice or, where the concession notice does not include the invitation to submit tenders, from the date on which the invitation to submit tenders was sent.

(2) The text of the concession notice or of the invitation to submit tenders must specify the internet address at which the concession documents are accessible.

(3) Paragraph (4) applies if, in duly justified circumstances due to—

(a) exceptional security reasons;

(b) technical reasons; or

(c) the particularly sensitive nature of commercial information requiring a very high level of protection,

unrestricted and full direct access free of charge to certain concession documents cannot be offered by means of the internet.

(4) In those circumstances a contracting entity must indicate in the notice or the invitation to submit a tender that the concession documents concerned will be transmitted by means other than the internet and the time limit for the receipt of tenders shall be prolonged.

(5) Provided that it has been requested in good time, a contracting entity must supply to all applicants or tenderers taking part in the procurement for the award of a concession contract additional information relating to the concession documents not later than 6 days before the deadline fixed for the receipt of tenders.

Textual Amendments

F22 Words in reg. 36(1) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(22) (with sch. paras. 1-5)

Commencement Information

I4 Reg. 36 in force at 18.4.2016, see reg. 1(2)

Conflict of Interest S

37.—(1) A contracting entity must take appropriate measures to prevent, identify and remedy a conflict of interest arising in the conduct of the procurement for the award of a concession contract so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.

(2) The measures in relation to a conflict of interest must not go beyond what is strictly necessary to prevent a potential conflict of interest or eliminate an identified conflict of interest.

(3) Without prejudice to the generality thereof, reference to “conflicts of interest” in paragraph (1) includes any situation where a relevant staff member has, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement for the award of a concession contract.

(4) In paragraph (3), “relevant staff member” means a contracting entity staff member or staff member of a procurement service provider acting on behalf of the contracting entity, who is involved in the conduct of the procurement for the award of concession contract or may influence the outcome of that procurement.

Commencement Information

I5 Reg. 37 in force at 18.4.2016, see reg. 1(2)