The Concession Contracts (Scotland) Regulations 2016

Changes over time for: Section 2

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Changes and effects yet to be applied to Regulation 2:

Regulations applied by 2023 c. 54 s. 119(2)(c)
Regulations power to amend conferred by 2023 c. 54 s. 115(3)(4)
reg. 2(1) word inserted by S.S.I. 2019/112 reg. 7(2)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 2(1) words inserted by S.S.I. 2019/112 reg. 7(2)(b) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 2(1) words inserted by S.S.I. 2019/112 reg. 7(2)(d) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 2(1) words inserted by S.S.I. 2019/112 reg. 7(2)(f) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 2(1) words inserted by S.S.I. 2019/112 reg. 7(2)(h) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 2(1) words omitted by S.S.I. 2019/112 reg. 7(2)(a) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 2(1) words omitted by S.S.I. 2019/112 reg. 7(2)(e) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 2(1) words omitted by S.S.I. 2019/112 reg. 7(2)(g) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 2(1) words revoked by S.S.I. 2019/112 reg. 7(2)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))

Changes and effects yet to be applied to the whole Instrument associated Parts and Chapters:

Whole provisions yet to be inserted into this Instrument (including any effects on those provisions):

reg. 7(2)-(5) substituted for reg. 7(2) by S.S.I. 2019/112 reg. 7(4) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 8A inserted by S.S.I. 2019/112 reg. 7(6) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 12(1)(e)(i)(aa) words substituted by S.S.I. 2019/112 reg. 7(10)(a)(i) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 12(1)(e)(i)(bb) words substituted by S.S.I. 2019/112 reg. 7(10)(a)(ii) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 33(2)(a)(i)-(iii) and words inserted by S.S.I. 2019/112 reg. 7(19)(a) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 34(4) inserted by S.S.I. 2019/112 reg. 7(20)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 35(5)(6) inserted by S.S.I. 2019/112 reg. 7(21)(e) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 40(19)-(21) inserted by S.S.I. 2019/112 reg. 7(23)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 46(4)(a)-(c) and words inserted by S.S.I. 2019/112 reg. 7(26)(b) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 51(3)(3A) substituted for reg. 51(3) by S.S.I. 2019/112 reg. 7(28)(c) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))
reg. 51(4A) inserted by S.S.I. 2019/112, reg. 7(28)(da) (as substituted) by S.S.I. 2019/114 reg. 2(7)(b) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/114 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(b))
reg. 60ZA inserted by S.S.I. 2019/112 reg. 7(31) (This amendment not applied to legislation.gov.uk. S.S.I. 2019/112 revoked immediately before IP completion day by S.S.I. 2020/468, regs. 1(3), 2(2)(a))

InterpretationS

This section has no associated Policy Notes

2.—(1) In these Regulations—

“body governed by public law” means a body that has legal personality, is established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character and which—

(a)

is financed for the most part by the State, regional or local authorities, or by any other body governed by public law;

(b)

is subject to management supervision by any such authority or body; or

(c)

has an administrative, managerial or supervisory board more than half the members of which were appointed by any body referred to in sub-paragraph (a);

“candidate” means an economic operator that has sought an invitation or has been invited to take part in a procurement for the award of a concession contract;

“central purchasing body” means a contracting entity providing purchasing activity conducted on a permanent basis in one of the following forms—

(d)

the acquisition of supplies or services for contracting entities;

(e)

the award of a concession contract for works, supplies or services intended for contracting entities;

“commenced” in relation to procurement means—

(f)

if a concession notice has been sent to the Official Journal in accordance with regulation 33 (concession notice);

(g)

if a prior information notice has been published in accordance with regulation 33; or

(h)

in any case where there is no such advertising, if the contracting entity has contacted any economic operator—

(i)

in order to seek expressions of interest or offers in respect of a proposed concession contract; or

(ii)

in response to an unsolicited expression of interest or offer in respect of a proposed concession contract;

F1...

“concessionaire” means an economic operator that has been awarded a concession contract;

“concession contract award notice” means the notice referred to in regulation 34 (concession contract award notice);

“concession contract” has the meaning given by regulation 3 (meaning of “concession contract”);

“Concession Contracts Directive” means Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts(1);

“concession document” means any document produced or referred to by the contracting entity to describe or determine elements of the concession contract or the procurement procedure, including the concession notice, the technical and functional requirements, proposed conditions of the concession contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;

“concession notice” has the meaning given by regulation 6 (meaning of “concession notice”);

“[F2contracting entity]” (except in regulation 19 (Exclusions: concession contacts between entities within the public sector)) means a contracting authority or utility;

[F3“covered by regulation 7(2)”, in relation to an activity, an element, a part of a concession contract or a procurement, means that regulation 7(2)—

(a)

applies to that activity, element, part or procurement, or

(b)

would do so if these Regulations applied;]

“CPV” means the Common Procurement Vocabulary as adopted by Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (2) and “CPV Code” shall be construed accordingly;

“Defence and Security Regulations” means the Defence and Security Public Contracts Regulations 2011(3);

“disabled”, in relation to a person, means a disabled person within the meaning of the Equality Act 2010(4) and, in relation to a worker, means a disabled person who is a worker;

“economic operator” means any person or public entity or group of such persons or both including any temporary association of undertakings, which offers the execution of works or a work, the supply of products or the provision of services on the market;

“electronic means” means electronic equipment for processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, radio, optical or other electromagnetic means;

“exclusive right” means a right granted by a competent authority F4... by means of any law, regulation or published administrative provision which is compatible with the [F5Retained] Treaties, the effect of which is to limit the exercise of an activity to a single economic operator and which substantially affects the ability of other economic operators to carry out such an activity;

“execution of works” means—

(a)

the execution, or both the design and execution, of works related to one of the activities listed in Schedule 1;

(b)

the execution, or both the design and execution, of a work;

(c)

the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting entity exercising a decisive influence on the type or design of the work;

[F6“GPA” means the Agreement on Government Procurement [F7signed at Marrakesh on 15th April 1994, as amended on or before [F830 October 2023]],]

[F9“GPA party” means any country, state or separate customs territory that is—

(a)

listed in Schedule 1A; or

(b)

a member State of the EU;]

F10...

“prior information notice” means the notice referred to in regulation 33(3) (concession notice);

“procurement” means the process undertaken by a contracting entity leading to the award of a concession contract for the acquisition of works, supplies or services from an economic operator;

[F11“the Retained Treaties” means anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 because of the effect which the Treaty on European Union or TFEU had immediately before IP completion day in giving rise to any of the rights, powers, liabilities, obligations, restrictions, remedies and procedures mentioned in that section;]

“services concession contract” has the meaning given by regulation 3(3) (meaning of “services concession contract”);

“tenderer” means an economic operator that has submitted a tender;

“TFEU” means the Treaty on the Functioning of the European Union(5);

F12...

[F13the UK e-notification service” has the meaning given in regulation 35(5),]

“utility” has the meaning given by regulation 5 (meaning of “utility”);

“a work” means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function;

“working day” means a day other than a Saturday, Sunday or a bank holiday in Scotland within the meaning of the Banking and Financial Dealings Act 1971(7);

“works concession contract” has the meaning given by regulation 3(2) (meaning of “works concession contract”);

“written” or “in writing” means any expression which can be read by a person, reproduced and subsequently communicated, including information transmitted and stored by electronic means.

(2) Unless the context otherwise requires, any other expression used both in these Regulations (other than in Part 5) and in the Concession Contracts Directive has the meaning that it bears in that Directive.

(3) Except in regulation 52(4) (enforcement of duties through the courts) where these Regulations refer to a period of time—

(a)where the period follows an action taken, the day on which the action taken is not counted in the calculation of the period; and

(b)the period must include at least 2 working days; and

(c)where the last day of the period is not a working day, the period is extended to include the next working day.

[F14(4) In these Regulations, references to the following Directives, Regulation and Commission Decisions are references to the Directives, Regulation and Commission Decisions as amended from time to time—

(a)Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signatures(2);

(b)Regulation (EC) 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV)(3);

(c)Directive 2002/21/EC of the European Parliament and of the Council on the common regulatory framework for electronic communication networks and services(4);

(d)Directive 2004/39/EC of the European Parliament and of the Council concerning markets for financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC(5);

(e)Commission Decision 2009/767/EC setting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2009)7806)(6);

(f)Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in member States concerning the provision of audio-visual media services(7);

(g)Directive 2013/34/EU of the European Parliament and of the Council on the annual financial statements, consolidated financial statement and related reports of certain types of undertaking, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC;

(h)Commission Decision 2011/130/EU establishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081;

(i)Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts;

(j)Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC; and

(k)Directive 2014/25/EU of the European Parliament and of the Council on procurement entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC.]

Textual Amendments

F1Words in reg. 2(1) 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(2)(a) (with sch. paras. 1-5)

F2Words in reg. 2 substituted (18.4.2016) by The Concession Contracts (Scotland) Amendment Regulations 2016 (S.S.I. 2016/125), regs. 1, 2(2)(a)

F3Words in reg. 2(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(2)(b) (with sch. paras. 1-5)

F4Words in reg. 2(1) 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(2)(c)(i) (with sch. paras. 1-5)

F5Word in reg. 2(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(2)(c)(ii) (with sch. paras. 1-5)

F6Words in reg. 2(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(2)(d) (with sch. paras. 1-5)

F7Words in reg. 2(1) substituted (11.6.2021) by The Public Procurement (Agreement on Government Procurement) (Amendment) Regulations 2021 (S.I. 2021/573), regs. 1(1), 7(2)(a)

F8Words in reg. 2(1) substituted (30.10.2023) by The Public Procurement (Agreement on Government Procurement) (Miscellaneous Amendments) (Scotland) Regulations 2023 (S.S.I. 2023/287), regs. 1(2), 4(2)

F9Words in reg. 2(1) inserted (11.6.2021) by The Public Procurement (Agreement on Government Procurement) (Amendment) Regulations 2021 (S.I. 2021/573), regs. 1(1), 7(2)(b)

F10Words in reg. 2(1) 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(2)(e) (with sch. paras. 1-5)

F11Words in reg. 2(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(2)(f) (with sch. paras. 1-5)