- Latest available (Revised)
- Point in Time (16/08/2021)
- Original (As made)
Version Superseded: 30/10/2023
Point in time view as at 16/08/2021. This version of this provision has been superseded.
You are viewing this legislation item as it stood at a particular point in time. A later version of this or provision, including subsequent changes and effects, supersedes this version.
Note the term provision is used to describe a definable element in a piece of legislation that has legislative effect – such as a Part, Chapter or section.
The Concession Contracts (Scotland) Regulations 2016, Section 2 is up to date with all changes known to be in force on or before 18 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.
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—
is financed for the most part by the State, regional or local authorities, or by any other body governed by public law;
is subject to management supervision by any such authority or body; or
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—
the acquisition of supplies or services for contracting entities;
the award of a concession contract for works, supplies or services intended for contracting entities;
“commenced” in relation to procurement means—
if a concession notice has been sent to the Official Journal in accordance with regulation 33 (concession notice);
if a prior information notice has been published in accordance with regulation 33; or
in any case where there is no such advertising, if the contracting entity has contacted any economic operator—
in order to seek expressions of interest or offers in respect of a proposed concession contract; or
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)—
applies to that activity, element, part or procurement, or
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—
the execution, or both the design and execution, of works related to one of the activities listed in Schedule 1;
the execution, or both the design and execution, of a work;
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 [F816th May 2021]],]
[F9“GPA party” means any country, state or separate customs territory that is—
listed in Schedule 1A; or
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 (16.8.2021) by The Public Procurement (Agreement on Government Procurement) (Amendment) (No. 2) Regulations 2021 (S.I. 2021/872), regs. 1(1), 7(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)
F12Words 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)(g) (with sch. paras. 1-5)
F13Words 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)(h) (with sch. paras. 1-5)
F14Reg. 2(4) inserted (18.4.2016) by The Concession Contracts (Scotland) Amendment Regulations 2016 (S.S.I. 2016/125), regs. 1, 2(2)(b)
Commencement Information
OJ L 94, 28.3.2014, p.1.
OJ L 340, 16.12.2002, p.1, last amended by Commission Regulation (EC) No. 213/2008 (OJ L 74, 15.3.2008, p.1).
S.I. 2011/1848 amended by S.S.I. 2012/88, S.S.I. 2012/89, S.I. 2015/102, S.S.I 2015/446 and S.S.I 2016/49.
OJ C 115, 9.5.2008, p.47.
OJ C 115, 9.5.2008, p.13.
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Point in Time: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Policy Note sets out a brief statement of the purpose of a Scottish Statutory Instrument and provides information about its policy objective and policy implications. They aim to make the Scottish Statutory Instrument accessible to readers who are not legally qualified and accompany any Scottish Statutory Instrument or Draft Scottish Statutory Instrument laid before the Scottish Parliament from July 2012 onwards. Prior to this date these type of notes existed as ‘Executive Notes’ and accompanied Scottish Statutory Instruments from July 2005 until July 2012.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: