33.—(1) A contracting entity wishing to award a concession contract, other than a concession contract for social and other specific services listed in Schedule 3, must make known their intention through the publication of a concession notice.
(2) Such a concession notice must contain—
(a)the information set out in Annex V to the Concession Contracts Directive, [F1but as if—
(i)in paragraph 3, “Article 34(2)” were a reference to regulation 36(3) of these Regulations,
(ii)in paragraph 10, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations, and
(iii)paragraph 15 (financing by EU funds) were omitted]; and
(b)any other information that the contracting entity considers useful;
F2...
(3) A contracting entity wishing to award a concession contract for social and other specific services listed in Schedule 3 must make known their intention of a planned concession contract award through the publication of a prior information notice.
(4) Such a prior information notice must contain the information set out in Annex VI to the Concession Contracts Directive and must be in the format of the standard forms set out in Commission Implementing Regulation 2015/1986.
(5) This regulation does not apply in any of the following cases—
(a)if no applications, no suitable applications, no tenders or no suitable tenders have been submitted in response to a prior procurement for the award of a concession contract, provided that the initial conditions of the concession contract are not substantially altered and that a report is sent to the [F3Scottish Ministers if they so request];
(b)if the works or services can be supplied only by a particular economic operator for any of the following reasons—
(i)the aim of the concession contract is the creation or acquisition of a unique work of art or artistic performance;
(ii)competition is absent for technical reasons;
(iii)the existence of an exclusive right;
(iv)the protection of intellectual property rights and exclusive rights other than exclusive rights as defined in regulation 2 (interpretation),
but only, in the case of sub-paragraphs (ii) to (iv), if no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the concession contract award.
(6) For the purposes of paragraph (5)(a)—
(a)a tender must be considered not to be suitable if it is irrelevant to the concession contract, being manifestly incapable, without substantial changes, of meeting the contracting entity’s needs and requirements as specified in the concession documents;
(b)an application must be considered not to be suitable if—
(i)the applicant concerned is to be or may be excluded under regulation 40 (exclusion grounds) or does not meet the selection criteria set out by the contracting entity in accordance with regulation 41(1) to (3) (selection of and qualitative assessment of candidates);
(ii)the application includes tenders which are considered not to be suitable as described in sub-paragraph (a).
Textual Amendments
F1Reg. 33(2)(a)(i)-(iii) and words inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(19)(a) (with sch. paras. 1-5)
F2Words in reg. 33(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(19)(b) (with sch. paras. 1-5)
F3Words in reg. 33(5)(a) substituted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(19)(c) (with sch. paras. 1-5)
Commencement Information