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7.—(1) These Regulations establish rules on procurement for the award of a concession contract by a contracting entity—
(a)the value of which is estimated to be not less than the threshold mentioned in regulation 8 (thresholds and methods for calculating the estimated value of the concession contract); and
(b)which is not excluded from the scope of these Regulations by any other provision of this Part.
[F1(2) These Regulations—
(a)do not oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security,
(b)do not preclude the United Kingdom from taking such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material, provided that such measures do not adversely affect the conditions of competition regarding products which are not intended for specifically military purposes.
(3) The arms, munitions and war material to which paragraph (2)(b) applies are those included in the 1958 List.
(4) Any measures which, if they had been taken immediately before IP completion day, would have been covered by Article 346 of TFEU shall be regarded as measures covered by paragraph (2)(b).
(5) In this regulation, “the 1958 List” means the list of arms, munitions and war material adopted by the Council of the European Economic Community in its Decision 255/58 of 15 April 1958 as that list is to be treated for the purpose of the Concession Contracts Regulations 2016F2.]
Textual Amendments
F1Reg. 7(2)-(5) substituted for reg. 7(2) (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(4) (with sch. paras. 1-5)
Commencement Information
8.—(1) These Regulations apply to a procurement for the award of a concession contract if the estimated value of the contract to be awarded (not including value added tax) is equal to or greater than [F3£4,733,252].
F4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The value of a concession contract shall be the total turnover of the concessionaire generated over the duration of the contract, net of value added tax, as estimated by the contracting entity, in consideration for the works and services which are the object of the concession contract and the supplies incidental to such works and services.
(4) That estimate must be calculated as at the moment at which the concession notice is [F5submitted] for publication in accordance with regulation 35 (form and manner of publication of notices) or, in cases where such notice is not provided for, at the moment at which the contracting entity commences the procurement for the award of a concession contract.
(5) If the value as estimated at the time of the award is more than 20% higher than the estimate calculated in accordance with paragraph (4), the former shall be used for the purposes of this regulation.
(6) The estimated value of the concession contract must be calculated using an objective method specified in the concession documents.
(7) When calculating the estimated value of the concession contract, the contracting entity must, if applicable, take into account—
(a)the value of any form of option and any extension of the duration of the concession contract;
(b)revenue from the payment of fees and fines by the users of the works or services other than those collected on behalf of the contracting entity;
(c)payments or any other financial advantages, in any form, from the contracting entity or any other public authority to the concessionaire, including compensation for compliance with a public service obligation and public investment subsidies;
(d)the value of grants or any other financial advantages, in any form, from third parties for the performance of the concession contract;
(e)revenue from sales of any assets which are part of the concession contract;
(f)the value of all the supplies and services that are made available to the concessionaire by the contracting entity, provided that they are necessary for executing the works or providing the services;
(g)any prizes or payments to candidates or tenderers.
(8) The method used to calculate the estimated value of a concession contract must not be chosen with the intention of excluding it from the scope of these Regulations.
(9) A concession contract must not be subdivided with the effect of preventing it from falling within the scope of these Regulations, unless justified by objective reasons.
(10) If a proposed work or proposed provision of services may result in a concession contract being awarded in the form of separate lots, account must be taken of the total estimated value of all such lots.
(11) If the aggregate value of the lots is equal to or greater than the threshold referred to in paragraph (1), these Regulations apply to the award of each lot.
Textual Amendments
F3Reg. 8(1): sum substituted for words (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(5)(a) (with sch. paras. 1-5)
F4Reg. 8(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(5)(b) (with sch. paras. 1-5)
F5Word in reg. 8(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(5)(c) (with sch. paras. 1-5)
Commencement Information
8A.—(1) Every two years the Scottish Ministers must review the threshold specified in regulation 8(1) to verify whether it corresponds with the threshold established in the GPA for works concessions.
(2) The Scottish Ministers must do so by calculating the sterling value of the threshold on the basis of the average daily value of sterling in terms of the special drawing rights mentioned in the GPA over a period of 24 months ending with 31 August.
(3) The Scottish Ministers must make that calculation using the applicable conversion rates in the monthly International Financial Statistics published from time to time by the International Monetary Fund.
(4) If the sterling value of the threshold so calculated differs from the sum for the time being set by regulation 8(1) in respect of the threshold, the Scottish Ministers must make regulations amending regulation 8(1) so as to substitute for that sum the sum equal to that value.
(5) Such regulations—
(a)must be made and laid before the Scottish Parliament before 1 November following the end of the 24 month period covered by the review, and
(b)must provide for the substitution to come into force on the following 1 January.
(6) The first review under this regulation must relate to the 24 month period ending with 31 August 2021.]
Textual Amendments
F6Reg. 8A inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(6) (with sch. paras. 1-5)