The Concession Contracts (Scotland) Regulations 2016

Duty owed to economic operators

51.—(1) The obligation on a contracting entity to comply with the provisions of these Regulations (except where otherwise specified), and with any enforceable EU obligation in respect of a concession contract falling within the scope of these Regulations, is a duty owed to an economic operator from an EEA State.

(2) The duty owed in accordance with paragraph (1) is a duty owed also to—

(a) an economic operator from a GPA state, but only if the GPA applies to the procurement concerned; and

(b) an economic operator which is not from an EEA State or a GPA state, but only if a relevant bilateral agreement applies.

(3) For the purposes of paragraph (2)(a), the GPA applies to a procurement if—

(a) the procurement may result in the award of a concession contract of any description; and

(b) at the relevant time—

(i) a GPA state has agreed with the EU that the GPA shall apply to a concession contract of that description, and

(ii) the economic operator is from that GPA state.

(4) For the purpose of paragraph (2)(b), a relevant bilateral agreement applies if—

(a) there is an international agreement, other than the GPA, by which the EU is bound; and

(b) in accordance with that agreement, the economic operator is, in respect of the procurement concerned, to be accorded remedies no less favourable than those accorded to economic operators from the EU in respect of matters falling with the scope of the duty owed in accordance with paragraph (1).

(5) In this regulation—

except in paragraph (1), references to an “economic operator”, include a reference to a GPA economic operator;

“GPA” means the Agreement on Government Procurement between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended(1);

“GPS economic operator” means a person from a GPA state who sought, who seeks, or would have wished, to be the person to whom the contract is awarded;

“GPA state” means any country, other than an EEA state, which at the relevant time is a signatory to the GPA; and

“relevant time” means the date on which the contracting entity sent a concession notice in respect of the concession contract to the Publications Office of the European Union or would have done so if it had been required by these Regulations to do so.

(1)

All the substantive provisions of the Agreement were substituted by the Protocol which was approved, on behalf of the EU, by Council Decision 2014/115/EU (OJ L 68, 7.3.2014, p.1), to which the text of the Protocol is attached. In accordance with Article 3 of the Protocol, the Protocol has entered into force for the EU.