37.—(1) Concession contracts shall be awarded on the basis of the award criteria, provided that all of the following conditions are fulfilled—
(a)the tender complies with any minimum requirements set by the contracting authority or utility;
(b)the tenderer complies with the conditions for participation set out in regulation 38(1) to (3); and
(c)the tenderer is not excluded from participating in the concession contract award procedure in accordance with regulation 38(8) to (16), as read with regulation 38(21) to (25).
(2) The contracting authority or utility may limit the number of candidates or tenderers to an appropriate level, on condition that this is done in a transparent manner and on the basis of objective criteria.
(3) The number of candidates or tenderers invited shall be sufficient to ensure genuine competition.
(4) The contracting authority or utility shall communicate the following to all participants—
(a)the description of the envisaged organisation of the concession contract award procedure and an indicative completion deadline; and
(b)any modification to that procedure or completion deadline.
(5) To the extent that any modification referred to in paragraph (4)(b) concerns elements disclosed in the concession notice, the contracting authority or utility shall advertise it to all economic operators.
(6) The contracting authority or utility shall provide for appropriate recording of the stages of the procedure using the means it considers appropriate, subject to regulation 28(1) and (2).
(7) The contracting authority or utility may hold negotiations with candidates and tenderers but the subject-matter of the concession contract, the award criteria and the minimum requirements shall not be changed during the course of any negotiations.
(8) In this regulation—
(a)“the award criteria” means the award criteria set out by the contracting authority or utility in accordance with regulation 41;
(b)“minimum requirements” means the conditions and characteristics (in particular any technical, physical, functional and legal conditions and characteristics) that any tender must meet or possess.