The Concession Contracts (Scotland) Regulations 2016

CHAPTER 8 FACILITATION OF REMEDIES

Scope of Chapter 8

48.  This Chapter applies to procurement for the award of a concession contract falling within the scope of these Regulations.

Notice of a decision to award a concession contract

49.—(1) Subject to paragraphs (5) and (6), a contracting entity must send to each candidate and tenderer a notice communicating its decision to award the concession contract.

(2) If it is to be sent to a tenderer, the notice referred to in paragraph (1) must include—

(a) the criteria for the award of the concession contract;

(b) a summary of the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) obtained by—

(i) the tenderer which is to receive the notice; and

(ii) the tenderer to be awarded the concession contract;

and anything required by paragraph (3);

(c) the name of the tenderer to be awarded the concession contract; and

(d) a precise statement of either—

(i) when, in accordance with regulation 50 (standstill period), the standstill period is expected to end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or

(ii) the date before which the contracting entity will not, in conformity with regulation 50 enter into the concession contract .

(3) The reasons referred to in paragraph (2)(b) must include the reason for any decision by the contracting entity that the economic operator did not meet the technical and functional requirements in an equivalent manner as mentioned in regulation 38(6) (technical and functional requirements).

(4) If it is to be sent to a candidate, the notice referred to in paragraph (1) must include—

(a) a summary of the reasons why the candidate was unsuccessful; and

(b) the information mentioned in paragraph (2), but as if the words “and relative advantages” were omitted from sub-paragraph (b).

(5) A contracting entity need not comply with paragraph (1) in any of the following cases—

(a) if the concession contract is permitted by these Regulations to be awarded without prior publication of a concession notice;

(b) if the only tenderer is the one who is to be awarded the concession contract, and there is no candidate.

(6) A contracting entity may withhold any information to be provided in accordance with the preceding requirements of this regulation if the release of such information—

(a) would impede law enforcement or would otherwise be contrary to the public interest;

(b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or

(c) might prejudice fair competition between economic operators.

(7) In this regulation—

(a) “candidate” means a candidate, as defined in regulation 2(1), which—

(i) is not a tenderer, and

(ii) has not been informed of the rejection of its application and the reasons for it;

(b) “tenderer” means a tenderer, as defined in regulation 2(1), which has not been definitively excluded.

(8) For the purposes of paragraph (7)(b), an exclusion is definitive if, and only if, the tenderer has been notified of the exclusion and either—

(a) the exclusion has been held to be lawful in proceedings under Chapter 9; or

(b) the time limit for starting such proceedings has expired even on the assumption that the Court would have granted the maximum extension permitted by regulation 52(4) and (5) (enforcement of duties through the Courts).

Standstill period

50.—(1) A contracting entity must allow a period of at least the relevant standstill period to elapse between the date of despatch of the notice referred to in regulation 49(1) (notice of a decision to award a concession contract) and the date on which that contracting entity enters into the concession contract.

(2) Paragraph (1) does not apply if—

(a) the concession contract is exempt from the requirement for prior publication of a concession notice;

(b) there are no tenderers concerned or candidates concerned;

(c) a notice is not required to be given under regulation 49(1) (notice of a decision to award a concession contract).

(3) If notice is sent to all economic operators by facsimile or electronic means, the standstill period is a period of 10 days ending at midnight at the end of the 10^th day after that on which the last notice is sent.

(4) If notice is sent to any economic operators only by other means, the standstill period is a period of 15 days ending at midnight at the end of the 15^th day after that on which the last notice is sent.