The Concession Contracts Regulations 2016

Statutory Instruments

2016 No. 273

Public Procurement, England And Wales

Public Procurement, Northern Ireland

The Concession Contracts Regulations 2016

Made

11th March 2016

Laid before Parliament

17th March 2016

Coming into force

18th April 2016

The Minister for the Cabinet Office is designated for the purposes of section 2(2) of the European Communities Act 1972 M1 in relation to public procurement M2.

The Minister for the Cabinet Office makes these Regulations in exercise of the powers conferred by section 2(2) of, as read with paragraph 1A M3 of Schedule 2 to, that Act.

These Regulations make provision for a purpose mentioned in section 2(2) of that Act and it appears to the Minister for the Cabinet Office that it is expedient for certain references to provisions of EU instruments to be construed as references to those provisions as amended from time to time.

Marginal Citations

M3Paragraph 1A was inserted by the Legislative and Regulatory Reform Act 2006, section 28, and was amended by the European Union (Amendment) Act 2008, Part 1 of the Schedule and by S.I. 2007/1388.

PART 1 E+W+N.I.General

Citation, commencement and extentE+W+N.I.

1.—(1) These Regulations may be cited as the Concession Contracts Regulations 2016 and come into force on 18th April 2016.

(2) These Regulations do not extend to Scotland.

InterpretationE+W+N.I.

2.—(1) In these Regulations—

“bodies governed by public law” means bodies that have all of the following characteristics—

(a)

they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

(b)

they have legal personality; and

(c)

they have any of the following characteristics—

(i)

they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law;

(ii)

they are subject to management supervision by those authorities or bodies; or

(iii)

they have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law;

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

F1...

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

“concession award notice” means the notice referred to in regulation 32;

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

“concession document” means any document produced or referred to by the contracting authority or utility to describe or determine elements of the concession contract or the concession contract award procedure, including the concession notice, the technical and functional requirements, proposed conditions of 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;

“Concessions Directive” means Directive 2014/23/EU of the European Parliament and of the Council M4;

“contracting authorities” has the meaning given by regulation 4;

[F2“covered by regulation 7(3)”, in relation to an activity, an element, a part of a contract, or procurement, means that regulation 7(3)—

(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 M5 as amended from time to time;

[F3“devolved Northern Ireland authority” means a contracting authority whose functions are wholly or mainly functions which could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998);

“devolved Welsh authority” has the meaning given by section 157A of the Government of Wales Act 2006;]

“Defence and Security Regulations” means the Defence and Security Public Contracts Regulations 2011 M6;

“disabled”, in relation to a person, means a disabled person within the meaning of the Equality Act 2010 M7 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 and entities, 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 the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by any other electromagnetic means;

“exclusive right” means a right granted by a competent authority by means of any law, regulation or published administrative provision which is compatible with the [F4Retained] 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 any of the following—

(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 authority or utility exercising a decisive influence on the type or design of the work;

[F5“GPA” means the Agreement on Government Procurement [F6signed at Marrakesh on 15th April 1994, as amended on or before [F716th May 2021]] ;]

[F8“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;]

“legal person” means a person, whether governed by private or public law, other than a natural person;

“Official Journal” means the Official Journal of the European Union;

“prior information notice” means the notice referred to in regulation 31(3);

[F9“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);

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

“TFEU” means the Treaty on the Functioning of the European Union M8;

F10...M9

“utilities” has the meaning given by regulation 5;

[F11the UK e-notification service” has the meaning mentioned in regulation 33(5), and references (in whatever terms) to the submission of notices to that service are to be construed in accordance with the provisions applied (and adapted) by regulation 33(5);]

“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; but “works” is to be interpreted in accordance with paragraph (2);

“working day” means a day other than a Saturday, Sunday, Christmas Day, Good Friday or bank holiday within the meaning of the Banking and Financial Dealings Act 1971 M10;

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

“in writing” means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information which is transmitted and stored by electronic means.

(2) Any other expression used both in these Regulations (other than in Part 5) and in the Concessions Directive has the meaning that it bears in that Directive.

(3) In these Regulations (except regulation 33(3)), any reference to a period of time, however expressed, is to be interpreted subject to the requirement that where the period—

(a)is to be calculated by counting forwards in time from a given date or event, and

(b)would (but for this paragraph) have ended on a day which is not a working day,

the period is to end at the end of the next working day.

(4) Any reference in Part 3 to a period of time, however expressed, is to be interpreted subject to the following additional requirements—

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

(b)where the period is to be calculated from the moment at which an action takes place or other event occurs, the day during which that action takes place or that event occurs is not to be counted in the calculation of that period.

Textual Amendments

Marginal Citations

M4OJ No L 94, 28.3.2014, p1, last amended by Commission Delegated Regulation (EU) 2015/2172 (OJ No L 307, 25.11.2015, p9).

M5OJ No L 340, 16.12.2002, p1, last amended by Regulation (EC) No 596/2009 of the European Parliament and of the Council (OJ No L 188, 18.7.2009, p14).

M6S.I. 2011/1848, amended by S.I. 2011/2053, 2013/1431 and 2015/102.

M8OJ No C 115, 9.5.2008, p47.

M9OJ No C 115, 9.5.2008, p13.

Meaning of “concession contract”E+W+N.I.

3.—(1) In these Regulations, “concession contract” means a works concession contract or a services concession contract within the meaning of this regulation.

(2) A “works concession contract” means a contract—

(a)for pecuniary interest concluded in writing by means of which one or more contracting authorities or utilities entrust the execution of works to one or more economic operators, the consideration for which consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment; and

(b)that meets the requirements of paragraph (4).

(3) A “services concession contract” means a contract—

(a)for pecuniary interest concluded in writing by means of which one or more contracting authorities or utilities entrust the provision and the management of services (other than the execution of works) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment; and

(b)that meets the requirements of paragraph (4).

(4) The requirements are—

(a)the award of the contract shall involve the transfer to the concessionaire of an operating risk in exploiting the works or services encompassing demand or supply risk or both; and

(b)the part of the risk transferred to the concessionaire shall involve real exposure to the vagaries of the market, such that any potential estimated loss incurred by the concessionaire shall not be merely nominal or negligible.

(5) For the purposes of paragraph (4)(a), the concessionaire shall be deemed to assume operating risk where, under normal operating conditions, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession contract.

Meaning of “contracting authorities”E+W+N.I.

4.  In these Regulations, “contracting authorities” means State, regional or local authorities (including the Crown but not including Her Majesty in her private capacity), bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law other than those authorities, bodies or associations which pursue one of the activities listed in Schedule 2 and award a concession contract for the pursuit of one of those activities.

Meaning of “utilities”E+W+N.I.

5.—(1) In these Regulations, “utilities” means entities which pursue one of the activities listed in Schedule 2 and award a concession contract for the pursuit of one of those activities, and which are one of the following—

(a)State, regional or local authorities (including the Crown but not including Her Majesty in her private capacity), bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law;

(b)public undertakings;

(c)any other entities which operate on the basis of special rights or exclusive rights, granted for the exercise of one of the activities listed in Schedule 2.

(2) But entities within the meaning of paragraph (1)(c) which have been granted special or exclusive rights by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute “utilities”.

(3) The procedures referred to in paragraph (2) include—

(a)procurement procedures with a prior call for competition in conformity with these Regulations, the Public Contracts Regulations 2015 M11, the Utilities Contracts Regulations 2016 M12 or the Defence and Security Regulations;

(b)procedures pursuant to the legal acts of the EU listed in Annex III to the Concessions Directive, as amended from time to time, ensuring adequate prior transparency for granting authorisations on the basis of objective criteria.

(4) In this regulation—

(a)“public undertaking” means any undertaking over which contracting authorities may exercise, directly or indirectly, a dominant influence by virtue of—

(i)their ownership of that undertaking,

(ii)their financial participation in that undertaking, or

(iii)the rules which govern that undertaking;

(b)“special right” means a right granted by a competent authority by means of any law, regulation or published administrative provision which is compatible with the [F12Retained] Treaties, the effect of which is to limit the exercise of an activity to two or more economic operators and which substantially affects the ability of other economic operators to carry out such an activity.

(5) For the purposes of the definition of “public undertaking” in paragraph (4), a dominant influence on the part of the contracting authorities shall be presumed where those authorities, directly or indirectly—

(a)hold the majority of the undertaking's subscribed capital;

(b)control the majority of the votes attached to shares issued by the undertaking; or

(c)can appoint more than half of the undertaking's administrative, management or supervisory body.

Textual Amendments

Marginal Citations

Meaning of “concession notice”E+W+N.I.

6.—(1) In these Regulations, “concession notice” means the notice referred to in regulation 31(1).

(2) In Part 5, “concession notice”—

(a)in relation to a concession contract awarded by a utility, includes a prior information notice; and

(b)in relation to a concession contract awarded by a contracting authority, has the same meaning that “contract notice” has in relation to it in Council Directive 89/665/EEC M13.

Marginal Citations

M13OJ No L 395, 30.12.1989, p33, last amended by Directive 2014/23/EU of the European Parliament and of the Council (OJ No L 94, 28.3.2014, p1).

PART 2 E+W+N.I.Scope and principles

CHAPTER 1E+W+N.I.Concession contracts to which these Regulations apply

Subject-matter and scope of these RegulationsE+W+N.I.

7.—(1) These Regulations establish rules on the procedures for procurement by contracting authorities and utilities by means of a concession contract—

(a)the value of which is estimated to be not less than the threshold mentioned in regulation 9; and

(b)which is not excluded from the scope of these Regulations by any other provision of this Part.

(2) These Regulations apply to the award of works concession contracts or services concession contracts to economic operators by—

(a)contracting authorities; or

(b)utilities, provided that the works or services are intended for the pursuit of one of the activities listed in Schedule 2.

[F13(3) 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 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.

(4) The arms, munitions and war material to which paragraph (3)(b) applies are, subject to paragraph (6), those included in the 1958 List.

(5) Subject to the effect of any regulations made under paragraph (6), 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 (3).

(6) The Secretary of State may make regulations providing that the 1958 List is to be treated for the purposes of these Regulations as if it were changed in respects specified in the regulations.

(7) 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 15th April 1958.]

Textual Amendments

Principle of equal treatment, non-discrimination and transparencyE+W+N.I.

8.—(1) Contracting authorities and utilities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

(2) The design of the concession contract award procedure, including the estimate of the value, shall not be made with the intention of excluding it from the scope of these Regulations or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services.

(3) During the concession contract award procedure, contracting authorities and utilities shall not provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others.

(4) Contracting authorities and utilities shall aim to ensure the transparency of the concession contract award procedure and of the performance of the contract, while complying with regulation 28.

[F14(5) Contracting authorities and utilities that are not devolved Welsh authorities shall not terminate concession contracts in a manner that circumvents their obligations under these Regulations.]

Textual Amendments

Threshold amounts and methods for calculating the estimated value of concession contractsE+W+N.I.

Threshold amounts

9.—(1) These Regulations apply to concession contracts the value of which are equal to or greater than [F15£5,336,937].

F16(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Calculating the value of the concession contract

(3) For the purposes of paragraph (1), the value of a concession contract shall be the total turnover of the concessionaire generated over the duration of the contract, [F17inclusive] of value added tax, as estimated by the contracting authority or utility, in consideration for the works and services which are the object of the concession contract and for the supplies incidental to such works and services.

(4) That estimate shall be calculated as at the moment at which the concession notice is [F18submitted] for publication in accordance with regulation 33 or, in cases where such notice is not provided for, at the moment at which the contracting authority or utility commences the concession contract award procedure, for example by contacting economic operators in relation to the concession contract.

(5) But 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 shall be calculated using an objective method specified in the concession documents.

(7) When calculating the estimated value of the concession contract, contracting authorities and utilities shall, where applicable, take into account in particular—

(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 authority or utility;

(c)payments or any other financial advantages, in any form, from the contracting authority or utility 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 authorities or utilities, provided that they are necessary for executing the works or providing the services;

(g)any prizes or payments to candidates or tenderers.

(8) The choice of the method used to calculate the estimated value of a concession contract shall not be made with the intention of excluding it from the scope of these Regulations.

(9) A concession contract shall not be subdivided with the effect of preventing it from falling within the scope of these Regulations, unless justified by objective reasons.

[F19(9A) If a contracting authority or a utility that is not a devolved Welsh authority is unable to estimate the value of a concession contract in accordance with this regulation, the estimated value of the concession contract inclusive of value added tax is deemed to be equal to the threshold amount in paragraph (1).]

Treatment of lots

(10) Where a proposed work or proposed provision of services may result in concession contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots.

(11) Where the aggregate value of the lots is equal to or greater than the threshold mentioned in paragraph (1), these Regulations shall apply to the awarding of each lot.

Textual Amendments

[F20Review and amendment of the threshold in regulation 9(1)E+W+N.I.

9A.—(1) Every two years the Minister for the Cabinet Office must review the threshold mentioned in regulation 9(1) to verify whether it corresponds with the threshold established in the GPA for works concessions.

(2) The Minister 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 31st August.

(3) The Minister 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 mentioned in regulation 9(1) in respect of the threshold, the Minister must make regulations amending regulation 9(1) so as to substitute for that sum the sum equal to that value.

(5) Such regulations—

(a)must be made and laid before Parliament before 1st 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 1st January.

(6) The first review under this regulation must relate to the 24-month period ending with 31st August 2021.]

Textual Amendments

CHAPTER 2E+W+N.I.Exclusions

General exclusionsE+W+N.I.

Exclusive rights

10.—(1) These Regulations do not apply to services concession contracts awarded to a contracting authority or to a utility referred to in regulation 5(1)(a), or to an association of such contracting authorities or utilities, on the basis of an exclusive right.

(2) These Regulations do not apply to services concession contracts awarded to an economic operator on the basis of an exclusive right that has been granted [F21for the exercise of one of the] activities listed in Schedule 2.

(3) But where the [F22exclusive right was not granted following the application of] sector-specific transparency obligations, regulation 32 applies.

Transport services

(4) These Regulations do not apply to concession contracts for—

(a)air transport services based on the [F23economic operator’s status as a qualifying air carrier] within the meaning of Regulation (EC) No 1008/2008 of the European Parliament and of the Council M14 as amended from time to time; or

(b)public passenger transport services within the meaning of Regulation (EC) No 1370/2007 of the European Parliament and of the Council M15 as amended from time to time.

Concession contracts awarded pursuant to international rules

(5) These Regulations do not apply to concession contracts which the contracting authority or utility is obliged to award in accordance with procedures which are different from those laid down by these Regulations and are established by any of the following—

(a)a legal instrument creating international law obligations, such as an international agreement, concluded in conformity with the [F24Retained] Treaties, between [F25the United Kingdom and one or more other] countries (or subdivisions of such countries) and covering works, supplies or services intended for the joint implementation or exploitation of a project by its signatories;

(b)an international organisation.

(6) These Regulations do not apply to concession contracts which the contracting authority or utility awards in accordance with procurement rules provided by an international organisation or international financing institution where the concession contracts concerned are fully financed by that organisation or institution.

(7) In the case of concession contracts co-financed for the most part by an international organisation or international financing institution, the parties shall agree on the applicable procurement procedures.

(8) Paragraphs (5) to (7) do not apply to concession contracts in the fields of defence and security as referred to in Directive 2009/81/EC of the European Parliament and of the Council M16.

Defence and security concession contracts

(9) These Regulations do not apply to concession contracts in the fields of defence and security as referred to in Directive 2009/81/EC—

(a)which are governed by specific procedural rules pursuant to an international agreement or arrangement concluded between [F26the United Kingdom] and one or more [F27other] countries;

(b)which are governed by specific procedural rules pursuant to a concluded international agreement or arrangement relating to the stationing of troops and concerning the undertakings of [F28the United Kingdom or another] country;

(c)which are governed by specific procedural rules of an international organisation purchasing for its purposes or which must be awarded by [F29the United Kingdom] in accordance with those rules;

(d)in relation to which the application of these Regulations would oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security or the procurement and performance of which is classified as secret or must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in any part of the United Kingdom, provided that the United Kingdom has determined that the essential interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in paragraph (10);

(e)awarded in the framework of a cooperative programme referred to in regulation 7(1)(c) of the Defence and Security Regulations;

(f)awarded by a government to another government relating to works and services directly linked to military equipment or sensitive equipment, or works and services specifically for military purposes, or sensitive works and sensitive services (and in this sub-paragraph “government” means the State, regional or local government of a member State or a State which is not a member State);

(g)awarded in a [F30country other than the United Kingdom or Gibraltar], to be carried out when forces are deployed outside the [F31United Kingdom and Gibraltar] where operational needs require those concession contracts to be concluded with economic operators located in the area of operations.

Protection of essential security interests

(10) These Regulations do not apply to concession contracts not otherwise exempted by paragraph (9)(d) to (g) to the extent that the protection of the essential security interests of the United Kingdom F32... cannot be guaranteed by less intrusive measures, for example by imposing requirements aimed at protecting the confidential nature of information which the contracting authority or utility makes available in a concession contract award procedure as provided for in these Regulations.

Other exclusions

(11) These Regulations do not apply to services concession contracts for—

(a)the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or which concern interests in or rights over any of them;

(b)(i)the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media providers, or

(ii)broadcasting time or programme provision that are awarded to audiovisual or radio media service providers;

(c)arbitration or conciliation services;

(d)any of the following legal services—

(i)legal representation of a client by a lawyer F33... in—

(aa)an arbitration or conciliation held in [F34the United Kingdom, another] country or before an international arbitration or conciliation instance, or

(bb)judicial proceedings before the courts, tribunals or public authorities of [F35the United Kingdom or another] country, or before international courts, tribunals or institutions;

(ii)legal advice given—

(aa)in preparation of any of the proceedings referred to in paragraph (i), or

(bb)where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings,

provided that the advice is given by a lawyer F36...

(iii)document certification and authentication services which must be provided by notaries;

(iv)legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the [F37United Kingdom] or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;

(v)other legal services which in the [F38United Kingdom] are connected, even occasionally, with the exercise of official authority;

(e)(i)financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council M17 as amended from time to time,

(ii)central bank services, or

(iii)operations conducted with the European Financial Stability Facility and the European Stability Mechanism;

(f)loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;

(g)civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes: 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services; or

(h)political campaign services which are covered by CPV codes 79341400-0, 92111230-3 and 92111240-6, when awarded by a political party in the context of an election campaign.

(12) In this regulation—

(a)“audiovisual media services” and “media service providers” have, respectively, the meanings given by Articles 1(1)(a) and 1(1)(d) of Directive 2010/13/EU of the European Parliament and of the Council M18 as amended from time to time;

[F39(aa)“lawyer” means a person practising as an advocate, barrister or solicitor in any part of the United Kingdom or in Gibraltar;]

(b)“programme” has the meaning given by Article 1(1)(b) of that Directive as amended from time to time, but also includes radio programmes and radio programme materials; and

(c)“programme material” has the same meaning as “programme”.

Lottery services

(13) These Regulations do not apply to services concession contracts for lottery services which are covered by CPV code 92351100-7 and awarded to an economic operator on the basis of an exclusive right granted otherwise than as described in regulation 5(2).

Activities in a third country

(14) These Regulations do not apply to concession contracts awarded by utilities for the pursuit of their activities in a [F40country other than the United Kingdom], in conditions not involving the physical use of a network or geographical area within the [F41United Kingdom].

Textual Amendments

Marginal Citations

M14OJ No L 293, 31.10.2008, p3.

M15OJ No L 315, 3.12.2007, p1.

M16OJ No L 216, 20.8.2009, p76, last amended by Commission Regulation (EU) 2015/2340 (OJ No L 330, 16.12.2015, p14).

M17OJ No L 145, 30.4.2004, p1, last amended by Directive 2010/78/EU of the European Parliament and of the Council (OJ No L 331, 15.12.2010, p120).

M18OJ No L 95, 15.4.2010, p1.

Specific exclusions in the field of electronic communicationsE+W+N.I.

11.—(1) These Regulations do not apply to concession contracts for the principal purpose of permitting contracting authorities to provide or exploit public communications networks, or to provide to the public one or more electronic communication services.

(2) In this regulation, “public communications network” and “electronic communications service” have the meanings given by Directive 2002/21/EC of the European Parliament and of the Council M19 as amended from time to time.

Marginal Citations

M19OJ No L 108, 24.4.2002, p33, last amended by Directive 2009/140/EC of the European Parliament and of the Council (OJ No L 337, 18.12.2009, p37).

Specific exclusions in the field of waterE+W+N.I.

12.  These Regulations do not apply to—

(a)concession contracts awarded to provide or operate fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water;

(b)concession contracts awarded to supply drinking water to such networks;

(c)concession contracts for either or both of the following—

(i)hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20% of the total volume of water made available by such projects or irrigation or drainage installations, or

(ii)the disposal or treatment of sewage,

when the contracts are connected with an activity referred to in paragraph (a) or (b).

Concession contracts awarded to an affiliated undertakingE+W+N.I.

13.—(1) These Regulations do not apply to concession contracts awarded—

(a)by a utility to an affiliated undertaking, or

(b)by a joint venture, formed exclusively by a number of utilities for the purpose of carrying out activities listed in Schedule 2, to an affiliated undertaking of one its members,

provided that the conditions in paragraph (2) are fulfilled.

(2) The conditions are that—

(a)in respect of services concession contracts, at least 80% of the average total turnover of the affiliated undertaking over the preceding 3 years, taking into account all services provided by that undertaking, derives from the provision of services to the utility or one or more of its affiliated undertakings;

(b)in respect of works concession contracts, at least 80% of the average total turnover of the affiliated undertaking over the preceding 3 years, taking into account all works provided by that undertaking, derives from the provision of works to the utility or one or more of its affiliated undertakings.

(3) Where, because of the date on which an affiliated undertaking was created or commenced activities, the turnover referred to in paragraph (2) is not available for the preceding 3 years, it shall be sufficient for that undertaking to show that the turnover is credible, in particular by means of business projections.

(4) Where more than one undertaking affiliated with the utility with which they form an economic group provides the same or similar services or works, the percentages referred to in paragraph (2) shall be calculated taking into account the total turnover deriving respectively from the provision of services or works by those affiliated undertakings.

(5) In this regulation, “affiliated undertaking” and any similar expression means—

(a)any undertaking the annual accounts of which are consolidated with those of the utility in accordance with the requirements of [F42Part 15 of the Companies Act 2006] as amended from time to time;

(b)in the case of an undertaking which is not subject to that [F43Part], any undertaking that—

(i)may be, directly or indirectly, subject to a dominant influence by the utility,

(ii)may exercise a dominant influence over the utility, or

(iii)in common with the utility, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it.

(6) For the purposes of paragraph (5)(b), a “dominant influence” shall be presumed on the part of a utility or, as the case may be, an undertaking in the same circumstances in which it is, in accordance with regulation 5(5), presumed on the part of a contracting authority.

(7) This regulation applies despite the provisions of regulation 17.

Textual Amendments

Concession contracts awarded to a joint venture or to a utility forming part of a joint ventureE+W+N.I.

14.—(1) These Regulations do not apply to concession contracts awarded—

(a)by a joint venture, formed exclusively by a number of utilities for the purpose of carrying out activities listed in Schedule 2, to one of those utilities, or

(b)by a utility to such a joint venture of which it forms part,

provided that the joint venture has been set up in order to carry out the activity concerned over a period of at least 3 years and the instrument setting up the joint venture stipulates that the utilities which form it will be part of the joint venture for at least the same period.

(2) This regulation applies despite the provisions of regulation 17.

Notification of information by utilitiesE+W+N.I.

F4415.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Exclusion of activities which are directly exposed to competitionE+W+N.I.

16.  These Regulations do not apply to concession contracts awarded by utilities where it has been established that the activity is directly exposed to competition in accordance with regulation 34(2) of the Utilities Contracts Regulations 2016 M20.

Marginal Citations

Concession contracts between entities within the public sectorE+W+N.I.

Award of contracts to controlled persons

17.—(1) A concession contract awarded by a contracting authority or a utility referred to in regulation 5(1)(a) to a legal person falls outside the scope of these Regulations where all of the following conditions are fulfilled—

(a)the contracting authority or utility exercises over the legal person concerned a control which is similar to that which it exercises over its own departments;

(b)more than 80% of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or utility or by other legal persons controlled by that contracting authority or utility; and

(c)there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the [F45Retained] Treaties, which do not exert a decisive influence on the controlled legal person.

(2) A concession contract also falls outside the scope of these Regulations where a controlled legal person which is a contracting authority or utility referred to in regulation 5(1)(a) awards a concession contract to—

(a)its controlling contracting authority or utility, or

(b)another legal person controlled by the same contracting authority or utility,

provided that there is no direct private capital participation in the legal person being awarded the concession contract with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the [F46Retained] Treaties, which do not exert a decisive influence on the legal person being awarded the contract.

(3) A contracting authority or utility shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of paragraph (1)(a) where—

(a)it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person, or

(b)that control is exercised by another legal person which is itself controlled in the same way by the contracting authority or utility,

and references to “control”, “controlled” and “controlling” in paragraphs (1) to (3) shall be interpreted accordingly.

Award of concession contracts where there is joint control

(4) A contracting authority or utility referred to in regulation 5(1)(a) which does not exercise over a legal person control within the meaning of paragraph (3) may nevertheless award a concession contract to that legal person without applying these Regulations where all of the following conditions are fulfilled—

(a)the contracting authority or utility exercises jointly with other contracting authorities or utilities a control over that legal person which is similar to that which they exercise over their own departments;

(b)more than 80% of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or utilities or by other legal persons controlled by the same contracting authorities or utilities; and

(c)there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the [F47Retained] Treaties, which do not exert a decisive influence on the controlled legal person.

(5) For the purposes of paragraph (4)(a), contracting authorities or utilities exercise joint control over a legal person where all of the following conditions are fulfilled—

(a)the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities or utilities;

(b)those contracting authorities or utilities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and

(c)the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities or utilities.

(6) For the purposes of paragraph (5)(a), individual representatives may represent several or all of the participating contracting authorities or utilities.

Contracts which establish or implement co-operation between contracting authorities or utilities

(7) A concession contract concluded exclusively between two or more contracting authorities or utilities referred to in regulation 5(1)(a) falls outside the scope of these Regulations where all of the following conditions are fulfilled—

(a)the contract establishes or implements a co-operation between the participating contracting authorities or utilities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;

(b)the implementation of that co-operation is governed solely by considerations relating to the public interest; and

(c)the participating contracting authorities or utilities perform on the open market less than 20% of the activities concerned by the co-operation.

Determination of percentages

(8) For the determination of the percentage of activities referred to in paragraphs (1)(b), (4)(b) and (7)(c), the average total turnover, or an appropriate alternative activity-based measure such as costs incurred by the relevant legal person, contracting authority or utility referred to regulation 5(1)(a) with respect to services, supplies and works for the 3 years preceding the concession contract award shall be taken into consideration.

(9) Where, because of—

(a)the date on which the relevant legal person, contracting authority or utility was created or commenced activities, or

(b)a reorganisation of its activities,

the turnover, or alternative activity-based measure such as costs, are either not available for the preceding 3 years or no longer relevant, it shall be sufficient to show that the measurement of activity is credible, particularly by means of business projections.

Textual Amendments

CHAPTER 3E+W+N.I.General Provisions

Duration of the concession contractE+W+N.I.

18.—(1) The duration of concession contracts shall be limited.

(2) The contracting authority or utility shall estimate the duration on the basis of the works or services requested.

(3) For concession contracts lasting more than 5 years, the maximum duration of the concession contract shall not exceed the time that a concessionaire could reasonably be expected to take to recoup the investments made in operating the works or services together with a return on invested capital taking into account the investments required to achieve the specific contractual objectives.

(4) The investments taken into account for the purposes of the calculation of the time period referred to in paragraph (3) shall include both initial investments and investments during the life of the concession contract.

Social and other specific servicesE+W+N.I.

19.  Concession contracts for social and other specific services listed in Schedule 3 falling within the scope of these Regulations shall be subject only to the obligations arising from regulations 24(2), 31(3) to (5), 32 and 46 to 64.

Mixed contractsE+W+N.I.

20.—(1) Concession contracts which have as their subject-matter both works and services shall be awarded in accordance with the provisions applicable to the type of concession contract that characterises the main subject-matter of the contract in question.

(2) In the case of mixed concession contracts consisting partly of social and other specific services listed in Schedule 3 and partly of other services, the main subject-matter shall be determined in accordance with which of the estimated values of the respective services is the highest.

(3) Where the different parts of a given contract are objectively separable—

(a)in the case of contracts which have as their subject-matter elements covered by these Regulations as well as other elements, contracting authorities and utilities may choose to award separate contracts for the separate parts or to award a single contract;

(b)where contracting authorities or utilities choose to award separate contracts for separate parts, the decision as to which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned;

(c)where contracting authorities or utilities choose to award a single contract, these Regulations, unless otherwise provided in sub-paragraph (d), apply to the ensuing mixed contract, irrespective of—

(i)the value of the parts that would otherwise fall under a different legal regime, and

(ii)which legal regime those parts would otherwise have been subject to;

(d)in the case of a mixed contract containing elements of concession contracts as well as elements of public contracts covered by the Public Contracts Regulations 2015 M21 or contracts covered by the Utilities Contracts Regulations 2016, the mixed contract shall be awarded in accordance with the Public Contracts Regulations 2015 or the Utilities Contracts Regulations 2016, respectively.

(4) Where the different parts of a given contract are objectively not separable—

(a)the applicable legal regime shall be determined on the basis of the main subject-matter of that contract; and

(b)where that contract involves both elements of a services concession contract and of a supply contract, the main subject-matter shall be determined according to which of the estimated values of the respective services or supplies is the highest.

(5) But where part of a given contract is covered by [F48regulation 7(3)] or the Defence and Security Regulations, regulation 21 applies instead of paragraphs (1) to (4).

(6) In the case of contracts intended to cover several activities, one of them being an activity listed in Schedule 2 or subject to the Utilities Contracts Regulations 2016, the applicable provisions shall be established in accordance with regulation 22 of these Regulations and regulation 7 of the Utilities Contracts Regulations 2016, respectively.

(7) This regulation is subject to regulation 22.

Textual Amendments

Marginal Citations

Mixed procurement contracts involving defence or security aspectsE+W+N.I.

21.—(1) This regulation applies in the case of mixed contracts which have as their subject-matter elements of a concession contract covered by these Regulations and procurement or other elements covered by [F49regulation 7(3)] or the Defence and Security Regulations.

(2) In the case of contracts intended to cover several activities, one of them being listed in Schedule 2 or covered by the Utilities Contracts Regulations 2016, and another being covered by [F50regulation 7(3)] or the Defence and Security Regulations, the applicable provisions shall be established in accordance with regulation 23 of these Regulations and regulation 26 of the Utilities Contracts Regulations 2016, respectively.

(3) Where the different parts of a given contract are objectively separable, contracting authorities or utilities may choose to award separate contracts for the separate parts or to award a single contract.

(4) The decision to award a single contract shall not, however, be taken for the purpose of excluding contracts from the application of these Regulations or the Defence and Security Regulations.

(5) Where contracting authorities or utilities choose to award separate contracts for separate parts, the decision as to which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned.

(6) Where contracting authorities or utilities choose to award a single contract, the following criteria shall apply to determine the applicable legal regime—

(a)where part of a given contract is covered by [F51regulation 7(3)], or different parts are covered by [F51regulation 7(3)] and the Defence and Security Regulations respectively, the contract may be awarded without applying these Regulations, provided that the award of a single contract is justified by objective reasons;

(b)where part of a given contract is covered by the Defence and Security Regulations, the contract may be awarded in accordance with these Regulations or in accordance with the Defence and Security Regulations, provided that the award of a single contract is justified by objective reasons.

(7) Paragraph (6)(b) is without prejudice to the thresholds and exclusions for which the Defence and Security Regulations provide.

(8) Where the different parts of a given contract are objectively not separable, the contract may be awarded without applying these Regulations where it includes elements [F52covered by regulation 7(3)]; otherwise it may be awarded in accordance with these Regulations or in accordance with the Defence and Security Regulations.

(9) This regulation is subject to regulation 23.

Textual Amendments

Contracts covering both activities listed in Schedule 2 and other activitiesE+W+N.I.

22.—(1) This regulation applies in the case of contracts intended to cover several activities where one of those activities is listed in Schedule 2.

(2) Utilities may choose to award separate contracts for the purposes of the separate activities or to award a single contract for the purposes of all the activities.

(3) The choice between awarding a single contract or separate contracts shall not be made with the objective of excluding the contract or contracts from the scope of these Regulations or, where applicable, the Public Contracts Regulations 2015 or the Utilities Contracts Regulations 2016.

(4) Where utilities choose to award a separate contract, the decision as to which rules apply to any one of such separate contracts shall be taken on the basis of the characteristics of the separate activity concerned.

(5) Where utilities choose to award a single contract—

(a)a contract which is intended to cover several activities shall be subject to the rules applicable to the activity for which it is principally intended;

(b)in the case of a contract where it is objectively impossible to determine for which activity the contract is principally intended, the applicable rules shall be determined in accordance with the following—

(i)the contract shall be awarded in accordance with the provisions of these Regulations applicable to concession contracts awarded by contracting authorities, if one of the activities for which the contract is intended is subject to the provisions of these Regulations applicable to concession contracts awarded by contracting authorities and the other is subject to the provisions of these Regulations applicable to concession contracts awarded by utilities,

(ii)the contract shall be awarded in accordance with the Public Contracts Regulations 2015, if one of the activities for which the contract is intended is subject to these Regulations and the other to the Public Contracts Regulation 2015,

(iii)the contract shall be awarded in accordance with these Regulations, if one of the activities for which the contract is intended is subject to these Regulations and the other is not subject to these Regulations, the Public Contracts Regulations 2015 or the Utilities Contracts Regulations 2016.

(6) But where one of the activities concerned is covered by [F53regulation 7(3)] or the Defence and Security Regulations, regulation 23 applies instead of paragraph (5).

Textual Amendments

Contracts covering both activities listed in Schedule 2 and activities involving defence or security aspects.E+W+N.I.

23.—(1) This regulation applies in the case of contracts intended to cover several activities, one of them being listed in Schedule 2 and another being covered by [F54regulation 7(3)] or the Defence and Security Regulations.

(2) Utilities may choose to award separate contracts for the purposes of the separate activities or to award a single contract for the purposes of all the activities.

(3) The choice between awarding a single contract or awarding separate contracts shall not, however, be made with the objective of excluding the contract or contracts from the scope of these Regulations or the Defence and Security Regulations and a decision to award a single contract shall be justified by objective reasons.

(4) Where utilities choose to award separate contracts for separate parts, the decision as to which legal regime applies to any one of the separate contracts shall be taken on the basis of the characteristics of the separate activity concerned.

(5) Where utilities choose to award a single contract, the following shall apply—

(a)in the case of a contract intended to cover an activity which is covered by these Regulations and another which is covered by [F55regulation 7(3)], the utility may award the contract without applying these Regulations;

(b)in the case of a contract intended to cover an activity which is covered by these Regulations and another which is covered by the Defence and Security Regulations, the utility may award the contract either in accordance with these Regulations or in accordance with the Defence and Security Regulations.

(6) Paragraph (5)(b) is without prejudice to the thresholds and exclusions for which the Defence and Security Regulations provide.

(7) Contracts referred to in paragraph (5)(b) which also include procurement or other elements which are covered by [F56regulation 7(3)] may be awarded without applying these Regulations.

Textual Amendments

CHAPTER 4E+W+N.I.Specific Situations

Reserved concession contractsE+W+N.I.

24.—(1) Contracting authorities and utilities may—

(a)reserve the right to participate in concession contract award procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons, or

(b)provide for such concession contracts to be performed in the context of sheltered employment programmes,

provided that at least 30% of the employees of those workshops, economic operators or programmes are disabled or disadvantaged workers.

(2) In such cases, the concession notice or, in the case of a concession contract for social and other specific services listed in Schedule 3, the prior information notice, shall make reference to [F57this regulation].

Textual Amendments

Research and development servicesE+W+N.I.

25.  These Regulations apply to services concession contracts for research and development services which are covered by CPV codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5 only if—

(a)the benefits accrue exclusively to the contracting authority or utility for its use in the conduct of its own affairs; and

(b)the service provided is wholly remunerated by the contracting authority or utility.

CHAPTER 5E+W+N.I.Principles

Economic operatorsE+W+N.I.

26.—F58(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Legal persons may be required to indicate, in the tender or in the application, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.

Groups of economic operators

(3) Groups of economic operators, including temporary associations, may participate in concession contract award procedures and shall not be required by contracting authorities or utilities to have a specific legal form in order to submit a tender or an application.

(4) Where necessary, contracting authorities or utilities may clarify in the concession documents how groups of economic operators are to meet the requirements as to economic and financial standing or technical and professional ability referred to in regulation 38 provided that this is justified by objective reasons and is proportionate.

(5) Any conditions for the performance of a concession contract by such groups of economic operators which are different from those imposed on individual participants shall also be justified by objective reasons and shall be proportionate.

(6) Contracting authorities or utilities may require groups of economic operators to assume a specific legal form once they have been awarded the contract, to the extent that such a change is necessary for the satisfactory performance of the contract.

Textual Amendments

NomenclaturesE+W+N.I.

27.  Any references to nomenclatures in the context of the award of concession contracts shall be made using the CPV.

ConfidentialityE+W+N.I.

28.—(1) A contracting authority or utility shall not disclose information which has been forwarded to it by an economic operator and designated by that economic operator as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.

(2) Paragraph (1) is without prejudice to—

(a)any other provisions of these Regulations, including the obligations relating to the advertising of awarded concession contracts and the provision of information to candidates and tenderers set out in regulations 32 and 40 respectively;

(b)the Freedom of Information Act 2000 M22;

(c)any other requirement, or permission, for the disclosure of information that is applicable under the law of England and Wales or, as the case may be, Northern Ireland.

(3) Contracting authorities and utilities may impose on economic operators requirements aimed at protecting the confidential nature of information which they make available throughout the concession contract award procedure.

Marginal Citations

Rules applicable to communicationE+W+N.I.

29.—(1) Except where the use of electronic means is mandatory in accordance with regulations 33(1) and 34, contracting authorities and utilities may choose one or more of the following means of communication for all communication and information exchange—

(a)electronic means;

(b)post or facsimile;

(c)oral communication, including telephone, in respect of communications other than the essential elements of a concession contract award procedure, and provided that the content of the oral communication is documented to a sufficient degree on a durable medium;

(d)hand delivery certified by an acknowledgement of receipt.

(2) The means of communication chosen shall be generally available and non-discriminatory, and shall not restrict economic operators' access to the concession contract award procedure.

(3) The tools and devices to be used for communicating by electronic means, and their technical characteristics, shall be interoperable with information and communication technology products in general use.

(4) In all communication, exchange and storage of information, contracting authorities and utilities shall ensure that the integrity of data and the confidentiality of applications and tenders are preserved.

(5) Contracting authorities and utilities shall examine the content of applications and tenders only after the time limit set for submitting them has expired.

PART 3 E+W+N.I.Rules on the award of concession contracts

CHAPTER 1E+W+N.I.General principles

Design of the award procedureE+W+N.I.

30.  The contracting authority or utility shall have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with these Regulations.

Concession noticesE+W+N.I.

31.—(1) Contracting authorities and utilities wishing to award a concession contract, other than a concession contract for social and other specific services listed in Schedule 3, shall make known their intention through the publication of a concession notice.

(2) Such a concession notice shall contain—

(a)the information set out in Annex V to the Concessions Directive, [F59but as if—

(i)in paragraph 3, “Article 34(2)” were a reference to regulation 34(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 authority or utility considers useful.

(3) Contracting authorities and utilities wishing to award a concession contract for social and other specific services listed in Schedule 3 shall make known their intention of a planned concession contract award through the publication of a prior information notice.

(4) Such a prior information notice shall contain the information set out in Annex VI to the Concessions Directive.

(5) Contracting authorities and utilities wishing to publish a concession notice or prior information notice shall [F60submit] it for publication in accordance with regulation 33.

(6) Paragraphs (1) to (5) do not apply in any of the following cases—

(a)where no applications, no suitable applications, no tenders or no suitable tenders have been submitted in response to a prior concession contract procedure, provided that the initial conditions of the concession contract are not substantially altered [F61and that—

(i)a report is sent to the Minister for the Cabinet Office if the Minister so requests;

(ii)where the contracting authority or utility is a devolved Welsh authority, a report is sent to the Welsh Ministers if they so request (whether or not the Minister for the Cabinet Office also makes a request under paragraph (i));

(iii)where the contracting authority or utility is a devolved Northern Ireland authority, a report is sent to a Northern Ireland department if that department so requests (whether or not the Minister for the Cabinet Office also makes a request under paragraph (i));]

(b)where 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,

but only, in the case of paragraphs (ii) to (iv), where 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.

(7) For the purposes of paragraph (6)(a)—

(a)a tender shall be considered not to be suitable where it is irrelevant to the concession contract, being manifestly incapable, without substantial changes, of meeting the contracting authority or utility's needs and requirements as specified in the concession documents;

(b)an application shall be considered not to be suitable where—

(i)the applicant concerned is to be or may be excluded under regulation 38(8) to (25) or does not meet the selection criteria set out by the contracting authority or utility in accordance with regulation 38(1) to (3),

(ii)the application includes tenders which are considered not to be suitable as described in sub-paragraph (a).

Textual Amendments

Concession award noticesE+W+N.I.

32.—(1) Not later than 48 days after the award of a concession contract, contracting authorities and utilities shall [F62submit] a concession award notice for publication in accordance with regulation 33.

(2) But concession award notices for social and other specific services listed in Schedule 3 may be grouped for publication on a quarterly basis, in which case the contracting authority or utility shall [F63submit] the grouped notices for publication within 48 days of the end of each quarter.

(3) [F64Subject to paragraph (4), a concession award] notice shall contain the information set out in Annex VII to the Concessions Directive, or in the case of a concession contract for social and other specific services listed in Schedule 3, the information set out in Annex VIII to that Directive.

[F65(4) In paragraph (3), the reference to Annex VII is a reference to that Annex, but as if—

(i)in paragraph 7, “Article 41” were a reference to regulation 41 of these Regulations;

(ii)in paragraph 11(c), “Article 8(3)” were a reference to regulation 9(6) and (7) of these Regulations;

(iii)paragraph 12 (financing by EU funds) were omitted;

(iv)in paragraph 14, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Concession Contracts Regulations 2016)”; and

(v)in paragraph 15, “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.]

Textual Amendments

Form and manner of publication of noticesE+W+N.I.

33.—(1) The notices required by regulations 31, 32 and 43(3) to be [F66submitted] for publication in accordance with this regulation (and any corrigenda to those notices) [F67shall be submitted to the UK e-notification service for publication.]

F68(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F68(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Where the [F69provider of the UK e-notification service] has given the contracting authority or utility confirmation of F70... the publication of the information sent, indicating the date of that publication, that confirmation shall constitute proof of publication.

(3) Concession notices, prior information notices and concession award notices shall not be published [F71otherwise than on the UK e-notification service] before they are published [F72on that service] unless publication [F73on that service] does not take place within 48 hours after [F74the notice was submitted to that service].

(4) Concession notices, prior information notices and concession award notices published [F75otherwise than on the UK e-notification service] shall not contain information other than that contained in the notices [F76submitted to that service] but shall indicate the date of [F77submission of the notice to that service].

[F78(5) In these Regulations, “the UK e-notification service” has the meaning given by regulation 51(5) of the Public Contracts Regulations 2015, and regulation 51(6) and (7) of those Regulations apply for the purposes of these Regulations as if the reference to “paragraph (3)” in regulation 51(6)(b) were a reference to paragraph (2) of this regulation.]

Textual Amendments

Electronic availability of concession documentsE+W+N.I.

34.—(1) Contracting authorities and utilities shall, by means of the internet, offer unrestricted and full direct access free of charge to the concession documents from the date of the publication [F79on the UK e-notification service] of a concession notice or, where the concession notice does not include the invitation to submit tenders, from the date on which the invitation to submit tenders was sent.

(2) The text of the concession notice or of the invitation to submit tenders shall specify the internet address at which the concession documents are accessible.

(3) Paragraph (4) applies where, in duly justified circumstances due to—

(a)exceptional security reasons,

(b)technical reasons, or

(c)the particularly sensitive nature of commercial information requiring a very high level of protection,

unrestricted and full direct access free of charge to certain concession documents cannot be offered by means of the internet.

(4) In those circumstances contracting authorities and utilities shall indicate in the notice or the invitation to submit a tender that the concession documents concerned will be transmitted by means other than the internet and the time limit for the receipt of tenders shall be prolonged.

(5) Provided that it has been requested in good time, contracting authorities and utilities shall supply to all applicants or tenderers taking part in the concession contract award procedure additional information relating to the concession documents not later than 6 days before the deadline fixed for the receipt of tenders.

Textual Amendments

Combating corruption and preventing conflicts of interestE+W+N.I.

35.—(1) Contracting authorities and utilities shall take appropriate measures to combat fraud, favouritism and corruption and to effectively prevent, identify and remedy conflicts of interest arising in the conduct of concession contract award procedures, so as to avoid any distortion of competition and to ensure the transparency of the award procedure and the equal treatment of all candidates and tenderers.

(2) The measures adopted in relation to conflicts of interest shall not go beyond what is strictly necessary to prevent a potential conflict of interest or eliminate a conflict of interest that has been identified.

(3) For the purposes this regulation, the concept of conflicts of interest shall at least cover any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the concession contract award procedure.

(4) In paragraph (3), “relevant staff members” means staff members of the contracting authority or utility who are involved in the conduct of the concession contract award procedure or may influence the outcome of that procedure.

CHAPTER 2E+W+N.I.Procedural guarantees

Technical and functional requirementsE+W+N.I.

36.—(1) Technical and functional requirements shall be set out in the concession documents and shall lay down the characteristics required of the works or services that are the subject-matter of the concession contract.

(2) Those characteristics may also refer to the specific process of production or provision of the requested works or services provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives.

(3) The characteristics may, for example, include quality levels, environmental and climate performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, terminology, symbols, testing and test methods, marking and labelling, or user instructions.

(4) Unless justified by the subject-matter of the concession contract, technical and functional requirements shall not refer to a specific make or source, or a particular process which characterises the products or services provided by a specific economic operator, or to trade marks, patents, types or a specific production with the effect of favouring or eliminating certain undertakings or certain products.

(5) But such a reference is permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract is not possible, in which case the reference shall be accompanied by the words “or equivalent”.

(6) A contracting authority or utility shall not reject a tender on the grounds that the works and services tendered for do not comply with the technical and functional requirements to which it has referred, once the tenderer proves in its tender, by any appropriate means, that the solutions it has proposed satisfy in an equivalent manner the technical and functional requirements.

Procedural guaranteesE+W+N.I.

Concession contract award

37.—(1) Concession contracts shall be awarded on the basis of the award criteria, provided that all of the following conditions are fulfilled—

(a)the tender complies with any minimum requirements set by the contracting authority or utility;

(b)the tenderer complies with the conditions for participation set out in regulation 38(1) to (3); and

(c)the tenderer is not excluded from participating in the concession contract award procedure in accordance with regulation 38(8) to (16), as read with regulation 38(21) to (25).

Limitation of candidates or tenderers

(2) The contracting authority or utility may limit the number of candidates or tenderers to an appropriate level, on condition that this is done in a transparent manner and on the basis of objective criteria.

(3) The number of candidates or tenderers invited shall be sufficient to ensure genuine competition.

(4) The contracting authority or utility shall communicate the following to all participants—

(a)the description of the envisaged organisation of the concession contract award procedure and an indicative completion deadline; and

(b)any modification to that procedure or completion deadline.

(5) To the extent that any modification referred to in paragraph (4)(b) concerns elements disclosed in the concession notice, the contracting authority or utility shall advertise it to all economic operators.

(6) The contracting authority or utility shall provide for appropriate recording of the stages of the procedure using the means it considers appropriate, subject to regulation 28(1) and (2).

(7) The contracting authority or utility may hold negotiations with candidates and tenderers but the subject-matter of the concession contract, the award criteria and the minimum requirements shall not be changed during the course of any negotiations.

(8) In this regulation—

(a)“the award criteria” means the award criteria set out by the contracting authority or utility in accordance with regulation 41;

(b)“minimum requirements” means the conditions and characteristics (in particular any technical, physical, functional and legal conditions and characteristics) that any tender must meet or possess.

Selection of and qualitative assessment of candidatesE+W+N.I.

38.—(1) Contracting authorities and utilities shall verify the conditions for participation relating to the professional and technical ability and the financial and economic standing of candidates or tenderers on the basis of self-declarations or references submitted as proof in accordance with the requirements specified in the concession notice.

(2) Those requirements shall be non-discriminatory and proportionate to the subject-matter of the concession contract.

(3) The conditions for participation shall be related and proportionate to the need to ensure the ability of the concessionaire to perform the concession contract, taking into account the subject-matter of the concession contract and the purpose of ensuring genuine competition.

Reliance on the capacities of other entities

(4) For the purpose of meeting the conditions for participation, an economic operator may, where appropriate and for a particular concession contract, rely on the capacities of other entities, regardless of the legal nature of its links with them, subject to the following provisions of this regulation.

(5) Where an economic operator wants to rely on the capacities of other entities, it shall prove to the contracting authority or utility that it will have at its disposal, throughout the period of the concession contract, the necessary resources, for example, by producing a commitment by those entities to that effect.

(6) With regard to financial standing, the contracting authority or utility may require that the economic operator and those entities on which it relies are jointly liable for the execution of the contract.

(7) A group of economic operators within the meaning of regulation 26 may rely on the capacities of participants in the group or of other entities, and paragraphs (4) to (6) apply in relation to such as group in the same way that they apply in relation to an economic operator.

Mandatory exclusion

(8) Contracting authorities and utilities referred to in regulation 5(1)(a) shall exclude an economic operator from participation in a concession contract award procedure where they have established that that economic operator has been convicted of any of the following offences—

(a)conspiracy within the meaning of section 1 or 1A of the Criminal Law Act 1977 M23 or article 9 or 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 M24 where that conspiracy relates to participation in a criminal organisation as defined in Article 2 of Council Framework Decision 2008/841/JHA on the fight against organised crime M25;

(b)corruption within the meaning of section 1(2) of the Public Bodies Corrupt Practices Act 1889 M26 or section 1 of the Prevention of Corruption Act 1906 M27;

(c)the common law offence of bribery;

(d)bribery within the meaning of sections 1, 2 or 6 of the Bribery Act 2010 M28, or section 113 of the Representation of the People Act 1983 M29;

F80(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)any offence listed—

(i)in section 41 of the Counter Terrorism Act 2008 M30; or

(ii)in Schedule 2 to that Act where the court has determined that there is a terrorist connection;

(g)any offence under sections 44 to 46 of the Serious Crime Act 2007 M31 which relates to an offence covered by sub-paragraph (f);

(h)money laundering within the meaning of sections 340(11) and 415 of the Proceeds of Crime Act 2002 M32;

(i)an offence in connection with the proceeds of criminal conduct within the meaning of section 93A, 93B or 93C of the Criminal Justice Act 1988 M33 or article 45, 46 or 47 of the Proceeds of Crime (Northern Ireland) Order 1996 M34;

(j)an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 M35;

(k)an offence under section 59A of the Sexual Offences Act 2003 M36;

(l)an offence under section 71 of the Coroners and Justice Act 2009 M37;

(m)an offence under [F81sections 1, 2 or 4] of the Modern Slavery Act 2015 M38;

(n)an offence in connection with the proceeds of drug trafficking within the meaning of section 49, 50 or 51 of the Drug Trafficking Act 1994 M39; or

(o)any other offence within the meaning of [F82Article 38(4)(a), (b), (d), (e) or (f)] of the Concessions Directive—

(i)as defined by the law of any jurisdiction outside England and Wales and Northern Ireland, or

(ii)created, after the day on which these Regulations were made, in the law of England and Wales or Northern Ireland.

(9) The obligation to exclude an economic operator also applies where the person convicted is a member of the administrative, management or supervisory body of that economic operator, or has powers of representation, decision or control in the economic operator.

Mandatory and discretionary exclusions for non-payment of taxes etc.

(10) A contracting authority or a utility referred to in regulation 5(1)(a) shall exclude an economic operator from participation in a concession contract award procedure where—

(a)it is aware that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions; and

(b)the breach has been established by a judicial or administrative decision having final and binding effect in accordance with the legal provisions of the country in which the economic operator is established or with those of any of the jurisdictions of the United Kingdom.

(11) A contracting authority or a utility referred to in regulation 5(1)(a) may exclude an economic operator from participation in a concession contract award procedure where it can demonstrate by any appropriate means that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions.

(12) Paragraphs (10) and (11) cease to apply when the economic operator has fulfilled its obligations by paying, or entering into a binding arrangement with a view to paying, the taxes or social security contributions due, including, where applicable, any interest accrued or fines.

Exceptions to mandatory exclusion

(13) A contracting authority or utility may disregard any of the prohibitions imposed by paragraphs (8) to (10), on an exceptional basis, for overriding reasons relating to the public interest such as public health or protection of the environment.

(14) A contracting authority or utility may also disregard the prohibition imposed by paragraph (10) where an exclusion would be clearly disproportionate, in particular—

(a)where only minor amounts of taxes or social security contributions are unpaid; or

(b)where the economic operator was informed of the exact amount due following its breach of its obligations relating to the payment of taxes or social security contributions at such time that it did not have the possibility of fulfilling its obligations in a manner described in paragraph (12) before expiration of the deadline for submitting its application.

Discretionary exclusion

(15) A utility other than one referred to in regulation 5(1)(a) may exclude an economic operator from participation in a concession contract award procedure where it is aware that that economic operator has been convicted of any offence in paragraph (8).

(16) A contracting authority or utility may exclude from participation in a concession contract award procedure any economic operator in any of the following situations—

(a)where it can demonstrate by any appropriate means a violation of applicable obligations in the fields of environmental, social and labour law established by F83... national law, collective agreements or [F84, subject to paragraphs (26) and (27),] by the international environmental, social and labour law provisions listed in Annex X to the Concessions Directive as amended from time to time;

(b)where the economic operator is bankrupt or is the subject of insolvency or winding-up proceedings, where its assets are being administered by a liquidator or by the court, where it is in an arrangement with creditors, where its business activities are suspended or it is in any analogous situation arising from a similar procedure under the laws and regulations of any State;

(c)where the contracting authority or utility can demonstrate by any appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable;

(d)where a conflict of interest within the meaning of regulation 35 cannot be effectively remedied by any other, less intrusive, measures;

(e)where the contracting authority or utility has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;

(f)where the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior concession contract or a prior contract with a contracting authority or a utility as defined under these Regulations or under the Public Contracts Regulations 2015 M40 or the Utilities Contracts Regulations 2016 M41 which led to early termination of that prior contract, damages or other comparable sanctions;

(g)where the economic operator—

(i)has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria set out by the contracting authority or utility in accordance with paragraphs (1) to (3); or

(ii)has withheld such information or is unable to submit the required documents supporting such information;

(h)where the economic operator has—

(i)undertaken to—

(aa)unduly influence the decision-making process of the contracting authority or utility, or

(bb)obtain confidential information that may confer upon it undue advantages in the concession contract award procedure; or

(ii)negligently provided misleading information that may have a material influence on decisions concerning exclusion, selection or award;

(i)in the case of a concession contract in the fields of defence and security as referred to in Directive 2009/81/EC of the European Parliament and of the Council M42, where the economic operator has been found, on the basis of any means of evidence, including protected data sources, not to possess the reliability necessary to exclude risks to the security of the United Kingdom.

Exclusion during procedure

(17) Contracting authorities and utilities referred to in regulation 5(1)(a) shall exclude an economic operator where they become aware, at any time during a concession contract award procedure, that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs (8) to (10).

(18) Contracting authorities and utilities may exclude an economic operator where they become aware, at any time during a concession contract award procedure, that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs (11), (15) or (16).

Duration of exclusion

(19) In the cases referred to in paragraphs (8) and (9) the period during which the economic operator shall (subject to paragraphs (13) and (22)) be excluded is 5 years from the date of the conviction.

(20) In the cases referred to in paragraphs (15) and (16), the period during which the economic operator may (subject to paragraph (22)) be excluded is 3 years from the date of the relevant event.

Self-cleaning

(21) Any economic operator that is in one of the situations referred to in paragraphs (8), (15) or (16) may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of the relevant ground for exclusion.

(22) If the contracting authority or utility considers such evidence to be sufficient, the economic operator concerned shall not be excluded from the concession contract award procedure.

(23) For that purpose, the economic operator shall prove that it has—

(a)paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct;

(b)clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities; and

(c)taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.

(24) The measures taken by the economic operator shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct.

(25) Where the contracting authority or utility considers such measures to be insufficient, it shall give the economic operator a statement of the reasons for that decision.

[F85Power to modify effect of paragraph (16)(a)

(26) Where—

(a)the United Kingdom has ratified an international agreement establishing obligations in any of the fields mentioned in paragraph (16)(a), and

(b)the agreement is not already listed,

the Minister for the Cabinet Office may make regulations providing that paragraph (16)(a) is to have effect as if the agreement were listed.

(27) Where the United Kingdom has ceased to ratify an international agreement that is already listed, the Minister for the Cabinet Office may make regulations providing that paragraph (16)(a) is to have effect as if the agreement were not listed.

(28) In paragraphs (26) and (27)—

(a)“listed” means listed as described in paragraph (16)(a); and

(b)where paragraph (16)(a) already has effect as if an agreement were listed, “already listed” includes that agreement.]

Textual Amendments

Marginal Citations

M231977 c.45; section 1 was amended by the Criminal Attempts Act 1981 (c.47), section 5(1), by the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c.40), Schedule 2, Part 2, and by the Trade Union and Labour Relations (Consolidation) Act 1992 (c.52), Schedule 1; section 1A was inserted by the Criminal Justice (Terrorism and Conspiracy) Act 1998, section 5(1), and was amended by the Coroners and Justice Act 2009 (c.25), section 72(1)(a).

M24S.I. 1983/1120 (N.I.13); article 9 was amended by Part 2 of Schedules 1 and 2 to the Criminal Justice (Terrorism and Conspiracy) Act 1998, and article 9A was inserted by section 6(1) of that Act; there are other amendments but none is relevant.

M25OJ No L 300, 11.11.2008, p42.

M261889 c.69; this Act was repealed by the Bribery Act 2010 (c.23), Schedule 2.

M271906 c.34; this Act was repealed by the Bribery Act 2010, Schedule 2.

M322002 c.29; sections 340(11) and 415 were modified by the Serious Crime Act 2007 (c.27), section 63(1) and Schedule 6, paragraph 44; section 415 was amended by the Serious Organised Crime and Police Act 2005 (c.15), section 107(4).

M331988 c.33; sections 93A, 93B and 93C were inserted by sections 29, 30 and 31 of the Criminal Justice Act 1993 (c.36) and repealed by the Proceeds of Crime Act 2002 (c.29), Schedule 11, paragraph 17(2) and Schedule 12.

M352004 c.19; section 4 was amended by the Human Tissue Act 2004 (c.30), Schedule 6, paragraph 7, by the UK Borders Act 2007 (c.30), section 31(1), by the Borders, Citizenship and Immigration Act 2009 (c.11), section 54, by the Protection of Freedoms Act 2012 (c.9), section 110, and by the Criminal Justice Act (Northern Ireland) 2013 (c.7 (N.I)), section 7(2) to (5) and Schedule 4, Part 2, and extended to the Isle of Man with modifications by S.I. 2008/680, article 18 and Schedule 8. Section 4 was repealed, in relation to England and Wales, by the Modern Slavery Act 2015 (c.30), Schedule 5, paragraph 6.

M362003 c.42; section 59A was inserted by the Protection of Freedoms Act 2012 (c.9), section 109(2) and repealed by the Modern Slavery Act 2015, Schedule 5, paragraph 5.

M372009 c.25; section 71 was repealed by the Modern Slavery Act 2015, Schedule 5, paragraph 8.

M391994 c.37; sections 49, 50 and 51 were repealed by the Proceeds of Crime Act 2002 (c.29), Schedule 11, paragraphs 1 and 25(1) and (2)(a) and by Schedule 12.

M42OJ No L 216, 20.8.2009, p76, last amended by Commission Regulation (EU) 2015/2340 (OJ No L 330, 16.12.2015, p14).

Time limits for receipt of applications and tenders for the concession contractE+W+N.I.

39.—(1) When fixing the time limits for the receipt of applications or of tenders, contracting authorities and utilities shall take account, in particular, of the complexity of the concession contract and the time required for drawing up tenders or applications, without prejudice to the minimum time limits set out in this regulation.

(2) Where applications or tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the concession documents, the time limits for the receipt of applications for the concession contract or for the receipt of tenders shall be fixed so that all economic operators concerned may be aware of all the information needed to produce applications or tenders and, in any event, shall be longer than the minimum time limits set out in paragraphs (3) and (4).

(3) The minimum time limit for the receipt of applications (whether or not including tenders for the concession contract) shall be 30 days from the date on which the concession notice was [F86submitted] for publication in accordance with regulation 33.

(4) Where the concession contract award procedure takes place in successive stages the minimum time limit for the receipt of initial tenders shall be 22 days from the date on which the invitation to tender is sent.

(5) The time limit for receipt of tenders may be reduced by 5 days where the contracting authority or utility allows the submission of tenders by electronic means in accordance with regulation 29.

Textual Amendments

Informing candidates and tenderersE+W+N.I.

40.—(1) The contracting authority or utility shall as soon as possible inform each candidate and tenderer of decisions reached concerning the award of a concession contract, including—

(a)the name of the successful tenderer; and

(b)the grounds for any decision—

(i)to reject its application or tender,

(ii)not to award a contract for which there has been publication of a concession notice, or

(iii)to recommence the procedure.

(2) On request from the party concerned, the contracting authority or utility shall as quickly as possible, and in any event within 15 days from receipt of a request in writing, inform any tenderers that have made an admissible tender of the characteristics and relative advantages of the tender selected.

(3) The contracting authority or utility may decide to withhold certain information referred to in paragraphs (1) and (2) where 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.

Award criteriaE+W+N.I.

41.—(1) Concession contracts shall be awarded on the basis of objective criteria which comply with the principles set out in regulation 8 and which ensure that tenders are assessed in conditions of effective competition so as to identify an overall economic advantage for the contracting authority or utility (“the award criteria”).

(2) The award criteria—

(a)shall be linked to the subject-matter of the concession contract;

(b)shall not confer an unrestricted freedom of choice on the contracting authority or utility; and

(c)may include criteria such as one or more of the following—

(i)environmental criteria,

(ii)social criteria, or

(iii)criteria related to innovation.

(3) The award criteria shall be accompanied by requirements which allow the information provided by the tenderers to be effectively verified.

(4) The contracting authority or utility shall verify whether tenders properly meet the award criteria.

(5) The contracting authority or utility shall list the award criteria in descending order of importance.

(6) Where the contracting authority or utility receives a tender which proposes an innovative solution with an exceptional level of functional performance which could not have been foreseen by a diligent contracting authority or utility, the contracting authority or utility may, exceptionally, modify the ranking order of the award criteria to take into account that innovative solution.

(7) Where paragraph (6) applies the contracting authority or utility shall—

(a)inform all tenderers about the modification of the order of importance and issue a new invitation to submit tenders, respecting the minimum time limit referred to in regulation 39(4) for the receipt of tenders;

(b)where the award criteria have been published in, or at the same time as, the concession notice, publish a new concession notice, respecting the minimum time limit referred to in regulation 39(3) for the receipt of applications.

(8) The contracting authority or utility shall ensure that a modification of the ranking order referred to in paragraph (6) does not result in discrimination.

(9) In this regulation, “innovation” means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations, including with the purpose of helping to solve societal challenges or to support F87... sustainable and inclusive growth.

Textual Amendments

PART 4 E+W+N.I.Rules on the performance of concession contracts

SubcontractingE+W+N.I.

Giving information to contracting authority or utility

42.—(1) In the concession documents, the contracting authority or utility may ask the tenderer to indicate in its tender any share of the concession contract that it may intend to subcontract to third parties and any proposed subcontractors.

(2) Paragraph (1) is without prejudice to the question of the concessionaire's liability.

(3) In the case of a works concession contract and in respect of services to be provided at a facility under the oversight of the contracting authority or utility, after the award of the concession contract and at the latest when the performance of the concession contract commences, the contracting authority or utility shall require the concessionaire to notify to the contracting authority or utility the name, contact details and legal representatives of its subcontractors involved in such works or services, in so far as known at the time.

(4) The contracting authority or utility shall require the concessionaire to notify it of—

(a)any changes to the information notified under paragraph (3) during the course of the concession contract; and

(b)the name, contact details and legal representatives of any new subcontractors which it subsequently involves in such works or services.

(5) Paragraphs (3) and (4) do not apply to suppliers.

(6) Contracting authorities and utilities may extend the obligations provided for in paragraphs (3) and (4) to, for example—

(a)services concession contracts (other than those concerning services to be provided at the facilities under the oversight of the contracting authority or utility) or suppliers involved in works concession contracts or services concession contracts;

(b)subcontractors of the concessionaire's subcontractors or subcontractors further down the subcontracting chain.

Excluding subcontractors

(7) Contracting authorities and utilities may verify whether there are grounds for exclusion of subcontractors under regulation 38(8) to (25).

(8) In such cases, the contracting authority or utility—

(a)shall require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are compulsory grounds for exclusion; and

(b)may require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.

Modification of concession contracts during their termE+W+N.I.

43.—(1) Concession contracts may be modified without a new concession contract award procedure in accordance with these Regulations in any of the following cases—

(a)where the modifications, irrespective of their monetary value, have been provided for in the initial concession documents in clear, precise and unequivocal review clauses, which may include value revision clauses or options, provided that such clauses—

(i)state the scope and nature of possible modifications or options as well as the conditions under which they may be used, and

(ii)do not provide for modifications or options that would alter the overall nature of the concession contract;

(b)for additional works or services by the original concessionaire that have become necessary and were not included in the initial concession contract where a change of concessionaire—

(i)cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial concession contract, and

(ii)would cause significant inconvenience or substantial duplication of costs for the contracting authority or utility,

provided, in the case of a concession contract awarded by a contracting authority, that any increase in value does not exceed 50% of the value of the original concession contract;

(c)where all of the following conditions are fulfilled—

(i)the need for modification has been brought about by circumstances which a diligent contracting authority or utility could not have foreseen,

(ii)the modification does not alter the overall nature of the concession contract,

(iii)in the case of a concession contract awarded by a contracting authority, any increase in value does not exceed 50% of the value of the original concession contract;

(d)where a new concessionaire replaces the one to which the contracting authority or utility had initially awarded the concession contract as a consequence of—

(i)an unequivocal review clause or option in conformity with sub-paragraph (a),

(ii)universal or partial succession into the position of the initial concessionaire, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of these Regulations;

(e)where the modifications, irrespective of their value, are not substantial within the meaning of paragraph (9);

(f)where paragraph (5) applies.

(2) Where several successive modifications are made—

(a)the limitations imposed by the proviso at the end of paragraph (1)(b) and by sub-paragraph (c)(iii) shall apply to the value of each modification; and

(b)such successive modifications shall not be aimed at circumventing these Regulations.

(3) Contracting authorities and utilities which have modified a concession contract in either of the cases described in paragraph (1)(b) and (c) shall [F88submit] a notice to that effect for publication in accordance with regulation 33.

(4) Such a notice shall contain the information set out in Annex XI to the Concessions Directive [F89, but as if—

(a)paragraph 9 (financing by EU funds) were omitted;

(b)in paragraph 11, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Concession Contracts Regulations 2016)”; and

(c)in paragraph 12, “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]

(5) This paragraph applies where the value of the modification is below both of the following values—

(a)the threshold mentioned in regulation 9, and

(b)10% of the value of the initial concession contract,

provided that the modification does not alter the overall nature of the concession contract.

(6) For the purposes of paragraph (5), where several successive modifications are made, the value shall be the net cumulative value of the successive modifications.

(7) For the purpose of the calculation of the values mentioned in paragraphs (1)(b) and (c) and (5)(b), the updated value shall be the reference value when the concession contract includes an indexation clause but if the concession contract does not include an indexation clause, the updated value shall be calculated taking into account the average inflation in the United Kingdom.

(8) For the purposes of paragraph (7), average inflation shall be determined by reference to any one or more of the following indices published by the Statistics Board M43 or, if any such index ceases to be published, such other index as may replace it—

(a)the Retail Prices Index, being the general index of retail prices (for all items);

(b)the Consumer Prices Index, being the general index of consumer prices (for all items);

(c)the Producer Prices Index, being the index of price changes of goods bought and sold by United Kingdom manufacturers;

(d)the Services Producer Price Index, being the index of changes in the price received for selected services provided by United Kingdom businesses to other United Kingdom businesses and government.

(9) A modification of a concession contract during its term shall be considered substantial for the purposes of paragraph (1)(e), where one or more of the following conditions is met—

(a)the modification renders the concession contract materially different in character from the one initially concluded;

(b)the modification introduces conditions which, had they been part of the initial concession contract award procedure, would have—

(i)allowed for the admission of other applicants than those originally selected,

(ii)allowed for the acceptance of a tender other than that originally accepted, or

(iii)attracted additional participants in the concession contract award procedure;

(c)the modification changes the economic balance of the concession contract in favour of the concessionaire in a manner which was not provided for in the initial concession contract;

(d)the modification extends the scope of the concession contract considerably;

(e)a new concessionaire replaces the one to which the contracting authority or utility had initially awarded the concession contract in cases other than those provided for in paragraph (1)(d).

(10) A new concession contract award procedure in accordance with these Regulations shall be required for modifications of the provisions of a concession contract during its term other than those provided for in this regulation.

Textual Amendments

Marginal Citations

M43In Welsh the Statistics Board is known as Y Bwrdd Ystadegau.

Termination of concession contractsE+W+N.I.

44.—(1) Contracting authorities and utilities shall ensure that every concession contract which they award contains provisions enabling them to terminate the concession contract where—

(a)a modification of the concession contract has taken place, which would have required a new concession contract award procedure in accordance with regulation 43(10); [F90or]

(b)in the case of a concession contract awarded by a contracting authority or a utility referred to in regulation 5(1)(a), the concessionaire has, at the time of the concession contract award, been in one of the situations referred to in regulation 38(8), including as a result of the application of regulation 38(9), and should therefore have been excluded from the concession contract award procedure F91...

F92(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Those provisions may address the basis on which the power is to be exercisable in those circumstances, for example by providing for notice of termination to be given and by addressing consequential matters that will or might arise from the termination.

(3) To the extent that a concession contract does not contain provisions enabling the contracting authority or utility to terminate the contract on any of the grounds mentioned in paragraph (1), a power for the contracting authority or utility to do so on giving reasonable notice to the concessionaire shall be an implied term of that concession contract.

Textual Amendments

Reporting requirementsE+W+N.I.

45.  Contracting authorities and utilities shall send to the Minister for the Cabinet Office a report containing such information as the Minister for the Cabinet Office may from time to time request in respect of—

(a)any concession contract within the scope of these Regulations; or

(b)the procedure for the award of any such concession contract.

PART 5 E+W+N.I.Remedies

CHAPTER 1E+W+N.I.Facilitation of remedies

Scope of Chapter 1E+W+N.I.

46.  This Chapter applies to concession contracts falling within the scope of Parts 1 to 4.

Notices of decisions to award a concession contractE+W+N.I.

47.—(1) Subject to paragraphs (5) and (6), a contracting authority or utility shall send to each candidate and tenderer a notice communicating its decision to award the concession contract.

Content of notices

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

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

(b)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 48, 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 authority or utility will not, in conformity with regulation 48, enter into the concession contract.

(3) The reasons referred to in paragraph (2)(b) shall include the reason for any decision by the contracting authority or utility that the economic operator did not meet the technical and functional requirements in an equivalent manner as mentioned in regulation 36(6).

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

(a)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).

Exemptions

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

(a)where the concession contract is permitted by these Regulations to be awarded without prior publication of a concession notice [F93on the UK e-notification service];

(b)where the only tenderer is the one who is to be awarded the concession contract, and there are no candidates.

(6) A contracting authority or utility may withhold any information to be provided in accordance with the preceding requirements of this regulation where 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.

Meaning of “candidate” and “tenderer”

(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 2 of this Part; 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 53(4) and (5).

Textual Amendments

Standstill periodE+W+N.I.

48.—(1) Where regulation 47(1) applies, the contracting authority or utility must not enter into the concession contract before the end of the standstill period.

(2) Where the contracting authority or utility sends a regulation 47 notice to all the relevant economic operators by facsimile or electronic means, the standstill period ends at midnight at the end of the 10th day after the relevant sending date.

(3) Where the contracting authority or utility sends a regulation 47 notice to all the relevant economic operators only by other means, the standstill period ends at whichever of the following occurs first—

(a)midnight at the end of the 15th day after the relevant sending date;

(b)midnight at the end of 10th day after the date on which the last of the economic operators to receive such a notice receives it.

(4) In paragraphs (2) and (3), “the relevant sending date” means the date on which the regulation 47 notice is sent to the relevant economic operators, and if the notices are sent to different relevant economic operators on different dates, the relevant sending date is the date on which the last of the notices is sent.

(5) Where the contracting authority or utility sends the regulation 47 notice to one or more of the relevant economic operators by facsimile or electronic means and to the others by other means, the standstill period ends at whichever of the following two times occurs latest—

(a)midnight at the end of the 10th day after the date on which the last notice is sent by facsimile or electronic means;

(b)the time when whichever of the following occurs first—

(i)midnight at the end of the 15th day after the date on which the last notice is sent by other means;

(ii)midnight at the end of the 10th day after the date on which the last of the economic operators to receive a notice sent by any such other means receives it.

(6) In this regulation—

(a)“regulation 47 notice” means a notice given in accordance with regulation 47; and

(b)“relevant economic operators” means economic operators to which regulation 47 requires a notice to be sent.

CHAPTER 2E+W+N.I.Applications to the court

Interpretation of Chapter 2E+W+N.I.

49.—(1) In this Chapter—

“claim form” includes, in Northern Ireland, the originating process by which the proceedings are commenced;

“declaration of ineffectiveness” means a declaration made under regulation 59(2)(a);

“economic operator” has the meanings given by paragraph (2);

“grounds for ineffectiveness” has the meaning given by regulation 60;

“proceedings” means court proceedings taken for the purposes of regulation 52; and

“standstill period”, and references to its end, have the same meaning as in regulation 48.

(2) In regulations 50 and 51, “economic operator” has its usual meaning (in accordance with regulation 2(1)), but in the other provisions of this Chapter “economic operator” has the narrower meaning of an economic operator (as defined by regulation 2(1)) to which a duty is owed in accordance with regulation 50 or 51.

Duty owed to economic operators from [F94the United Kingdom and Gibraltar] E+W+N.I.

50.—(1) This regulation applies to the obligation on a contracting authority or utility to comply with—

(a)these Regulations; and

(b)any [F95retained EU obligation that is enforceable by virtue of section 4 of the European Union (Withdrawal) Act 2018] in the field of procurement in respect of a concession contract falling within the scope of these Regulations.

(2) That obligation is a duty owed to an economic operator from the United Kingdom or from [F96Gibraltar].

Textual Amendments

Duty owed to economic operators from countries with whom the EU has an international agreement, other than the GPA E+W+N.I.

F9751.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F98Duty owed to economic operators from GPA partiesE+W+N.I.

51A.—(1) The duty owed in accordance with regulation 50 is a duty owed also to an economic operator from a GPA party, but only where the agreement applies to the procurement concerned.

(2) For the purposes of paragraph (1), the GPA applies to a procurement if—

(a)the procurement may result in the award of a contract of any description; and

(b)at the relevant time—

(i)a GPA party has agreed with the United Kingdom that the GPA shall apply to a contract of that description; and

(ii)the economic operator is from that GPA party.

[F99(3) In this regulation, “relevant time” means the date on which the contracting authority or utility submitted a concession notice in respect of the concession contract to the UK e-notification service or would have done so if it had been required by these Regulations to do so.]]

Textual Amendments

[F100Duty owed to economic operators from countries with whom the United Kingdom has an international agreement, other than the GPAE+W+N.I.

51B.—(1) The duty owed in accordance with regulation 50 is a duty owed also to an economic operator from a country in respect of which a relevant international trade agreement applies, but only where the agreement applies to the procurement concerned.

(2) For the purposes of paragraph (1), a relevant international trade agreement applies if the procurement is covered by an agreement listed in Schedule 4.]

Textual Amendments

Enforcement of duties through the CourtE+W+N.I.

52.—(1) A breach of the duty owed in accordance with regulation 50 or 51 is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage.

(2) Proceedings for that purpose must be started in the High Court, and regulations 53 to 64 apply to such proceedings.

General time limits for starting proceedingsE+W+N.I.

53.—(1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.

(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

(3) Paragraph (2) does not require proceedings to be started before the end of any of the following periods—

(a)where the proceedings relate to a decision which is sent to the economic operator by facsimile or electronic means, 10 days beginning with—

(i)the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision;

(ii)if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

(b)where the proceedings relate to a decision which is sent to the economic operator by other means, whichever of the following periods ends first—

(i)15 days beginning with the day after the date on which the decision is sent, if the decision is accompanied by a summary of the reasons for the decision;

(ii)10 days beginning with—

(aa)the day after the date on which the decision is received, if the decision is accompanied by a summary of the reasons for the decision; or

(bb)if the decision is not so accompanied, the day after the date on which the economic operator is informed of a summary of those reasons;

(c)where sub-paragraphs (a) and (b) do not apply but the decision is published, 10 days beginning with the day on which the decision is published.

(4) Subject to paragraph (5), the Court may extend the time limits imposed by this regulation (but not any of the limits imposed by regulation 54) where the Court considers that there is a good reason for doing so.

(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

(6) For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.

Special time limits for seeking a declaration of ineffectivenessE+W+N.I.

54.—(1) This regulation limits the time within which proceedings may be started where the proceedings seek a declaration of ineffectiveness.

(2) Such proceedings must be started—

(a)where paragraph (3) or (5) applies, within 30 days beginning with the relevant date mentioned in that paragraph;

(b)in any event, within 6 months beginning with the day after the date on which the concession contract was entered into.

(3) This paragraph applies where a relevant concession award notice has been published [F101on the UK e-notification service], in which case the relevant date is the day after the date on which the notice was published.

(4) For that purpose, a concession award notice is relevant if, and only if—

(a)the concession contract was awarded without prior publication of a concession notice [F102on the UK e-notification service]; and

(b)the concession award notice includes justification of the decision of the contracting authority or utility to award the concession contract without prior publication of a concession notice [F103on the UK e-notification service].

(5) This paragraph applies where the contracting authority or utility has informed the economic operator of—

(a)the conclusion of the concession contract, and

(b)a summary of the relevant reasons,

in which case the relevant date is the day after the date on which the economic operator was informed of the award or, if later, was informed of a summary of the relevant reasons.

(6) In paragraph (5), “the relevant reasons” means the reasons which the economic operator would have been entitled to receive in response to a request under regulation 40(2).

(7) For the purposes of this regulation, proceedings are to be regarded as started when the claim form is issued.

Textual Amendments

Starting proceedingsE+W+N.I.

55.—(1) Where proceedings are started, the economic operator must serve the claim form on the contracting authority or utility within 7 days after the date of issue.

(2) Paragraph (3) applies where proceedings are started—

(a)seeking a declaration of ineffectiveness; or

(b)alleging a breach of regulation 48, 56 or 57(1)(b) where the concession contract has not been fully performed.

(3) In those circumstances, the economic operator must, as soon as practicable, send a copy of the claim form to each person, other than the contracting authority or utility, who is a party to the concession contract in question.

(4) The contracting authority or utility must, as soon as practicable, comply with any request from the economic operator for any information that the economic operator may reasonably require for the purpose of complying with paragraph (3).

(5) In this regulation, “serve” means serve in accordance with rules of court, and for the purposes of this regulation a claim form is deemed to be served on the day on which it is deemed by rules of court to be served.

Concession contract-making suspended by challenge to award decisionE+W+N.I.

56.—(1) Where—

(a)a claim form has been issued in respect of a contracting authority or utility's decision to award the concession contract,

(b)the contracting authority or utility has become aware that the claim form has been issued and that it relates to that decision, and

(c)the concession contract has not been entered into,

that contracting authority or utility is required to refrain from entering into the concession contract.

(2) The requirement continues until any of the following occurs—

(a)the Court brings the requirement to an end by interim order under regulation 57(1)(a);

(b)the proceedings at first instance are determined, discontinued or otherwise disposed of and no order has been made continuing the requirement (for example in connection with an appeal or the possibility of an appeal).

(3) This regulation does not affect the obligations imposed by regulation 48.

Interim ordersE+W+N.I.

57.—(1) In proceedings, the Court may, where relevant, make an interim order—

(a)bringing to an end the requirement imposed by regulation 56(1);

(b)restoring or modifying that requirement;

(c)suspending the procedure leading to the award of the concession contract in relation to which the breach of the duty owed in accordance with regulation 50 or 51 is alleged;

(d)suspending the implementation of any decision or action taken by the contracting authority or utility in the course of following such a procedure.

(2) When deciding whether to make an order under paragraph (1)(a)—

(a)the Court must consider whether, if regulation 56(1) were not applicable, it would be appropriate to make an interim order requiring the contracting authority or utility to refrain from entering into the concession contract; and

(b)only if the Court considers that it would not be appropriate to make such an interim order may it make an order under paragraph (1)(a).

(3) If the Court considers that it would not be appropriate to make an interim order of the kind mentioned in paragraph (2)(a) in the absence of undertakings or conditions, it may require or impose such undertakings or conditions in relation to the requirement in regulation 56(1).

(4) The Court may not make an order under paragraph (1)(a) or (b) or (3) before the end of the standstill period.

(5) This regulation does not prejudice any other powers of the Court.

Remedies where the concession contract has not been entered intoE+W+N.I.

58.—(1) Paragraph (2) applies where—

(a)the Court is satisfied that a decision or action taken by a contracting authority or utility was in breach of the duty owed in accordance with regulation 50 or 51; and

(b)the concession contract has not yet been entered into.

(2) In those circumstances, the Court may do one or more of the following—

(a)order the setting aside of the decision or action concerned;

(b)order the contracting authority or utility to amend any document;

(c)award damages to an economic operator which has suffered loss or damage as a consequence of the breach.

(3) Where the Court is satisfied that the economic operator would have had a real chance of being awarded the contract if that chance had not been affected by the breach mentioned in paragraph (1)(a), the economic operator is entitled to damages amounting to its costs in preparing its tender and in participating in the procedure leading to the award of the contract.

(4) Paragraph (3)—

(a)only applies in the case of a breach mentioned in paragraph (1)(a) by a utility;

(b)does not affect a claim by an economic operator that it has suffered other loss or damage or that it is entitled to relief other than damages; and

(c)is without prejudice to the matters on which an economic operator may be required to satisfy the Court in respect of any such other claim.

(5) This regulation does not prejudice any other powers of the Court.

Remedies where the concession contract has been entered intoE+W+N.I.

59.—(1) Paragraph (2) applies if—

(a)the Court is satisfied that a decision or action taken by a contracting authority or utility was in breach of the duty owed in accordance with regulation 50 or 51; and

(b)the concession contract has already been entered into.

(2) In those circumstances, the Court—

(a)must, if it is satisfied that any of the grounds for ineffectiveness applies, make a declaration of ineffectiveness in respect of the concession contract unless regulation 61 requires the Court not to do so;

(b)must, where required by regulation 63, impose penalties in accordance with that regulation;

(c)may award damages to an economic operator which has suffered loss or damage as a consequence of the breach, regardless of whether the Court also acts as described in sub-paragraphs (a) and (b);

(d)must not order any other remedies.

(3) Paragraph (2)(d) does not prejudice any power of the Court under regulation 62(3) or 63(12).

(4) Regulation 58(3) and (4)(b) and (c) apply for the purposes of this regulation in the case of a breach mentioned in paragraph (1)(a) by a utility.

Grounds for ineffectivenessE+W+N.I.

60.—(1) There are two grounds for ineffectiveness.

The first ground

(2) Subject to paragraph (3), the first ground applies where the concession contract has been awarded without prior publication of a concession notice [F104on the UK e-notification service] in any case in which these Regulations required the prior publication of a concession notice.

(3) The first ground does not apply if all the following apply—

(a)the contracting authority or utility considered the award of the concession contract without prior publication of a concession notice [F105on the UK e-notification service] to be permitted by these Regulations;

(b)the contracting authority or utility has had published [F106on the UK e-notification service] a voluntary transparency notice expressing its intention to enter into the concession contract; and

(c)the concession contract has not been entered into before the end of a period of at least 10 days beginning with the day after the date on which the voluntary transparency notice was published [F107on the UK e-notification service].

(4) In paragraph (3), “voluntary transparency notice” means a notice which F108... contains the following information—

(a)the name and contact details of the contracting authority or utility;

(b)a description of the object of the concession contract;

(c)a justification of the decision of the contracting authority or utility to award the concession contract without prior publication of a concession notice in the Official Journal;

(d)the name and contact details of the economic operator to be awarded the concession contract; and

(e)where appropriate, any other information which the contracting authority or utility considers it useful to include.

The second ground

(5) The second ground applies where all the following apply—

(a)the concession contract has been entered into in breach of any requirement imposed by—

(i)regulation 48,

(ii)regulation 56, or

(iii)regulation 57(1)(b);

(b)there has also been a breach of the duty owed to the economic operator in accordance with regulation 50 or 51 in respect of obligations other than those imposed by regulation 48 and this Chapter;

(c)the breach mentioned in sub-paragraph (a) has deprived the economic operator of the possibility of starting proceedings in respect of the breach mentioned in sub-paragraph (b), or pursuing them to a proper conclusion, before the concession contract was entered into; and

(d)the breach mentioned in sub-paragraph (b) has affected the chances of the economic operator obtaining the concession contract.

Textual Amendments

General interest grounds for not making a declaration of ineffectivenessE+W+N.I.

61.—(1) Where the Court is satisfied that either of the grounds for ineffectiveness applies, the Court must not make a declaration of ineffectiveness if—

(a)the contracting authority or utility or another party to the proceedings raises an issue under this regulation; and

(b)the Court is satisfied that overriding reasons relating to a general interest require that the effects of the concession contract should be maintained.

(2) For that purpose, economic interests in the effectiveness of the concession contract may be considered as overriding reasons only if in exceptional circumstances ineffectiveness would lead to disproportionate consequences.

(3) However, economic interests directly linked to the concession contract cannot constitute overriding reasons relating to a general interest.

(4) For that purpose, economic interests directly linked to the concession contract include—

(a)the costs resulting from the delay in the execution of the concession contract;

(b)the costs resulting from the commencement of a new procurement procedure;

(c)the costs resulting from change of the economic operator performing the concession contract; and

(d)the costs of legal obligations resulting from the ineffectiveness.

(5) For the purposes of paragraph (1)(b), overriding reasons may be taken to require that the effects of the concession contract should be maintained even if they do not require the Court to refrain from shortening the duration of the concession contract by an order under regulation 63(3)(a).

The consequences of ineffectivenessE+W+N.I.

62.—(1) Where a declaration of ineffectiveness is made, the concession contract is to be considered to be prospectively, but not retrospectively, ineffective as from the time when the declaration is made and, accordingly, those obligations under the concession contract which at that time have yet to be performed are not to be performed.

(2) Paragraph (1) does not prevent the exercise of any power under which the orders or decisions of the Court may be stayed, but at the end of any period during which a declaration of ineffectiveness is stayed, the concession contract is then to be considered to have been ineffective as from the time when the declaration had been made.

(3) When making a declaration of ineffectiveness, or at any time after doing so, the Court may make any order that it thinks appropriate for addressing—

(a)the implications of paragraph (1) or (2) for the particular circumstances of the case;

(b)any consequential matters arising from the ineffectiveness.

(4) Such an order may, for example, address issues of restitution and compensation as between those parties to the concession contract who are parties to the proceedings so as to achieve an outcome which the Court considers to be just in all the circumstances.

(5) Paragraph (6) applies where the parties to the concession contract have, at any time before the declaration of ineffectiveness is made, agreed by contract any provisions for the purpose of regulating their mutual rights and obligations in the event of such a declaration being made.

(6) In those circumstances, the Court must not exercise its power to make an order under paragraph (3) in any way which is inconsistent with those provisions, unless and to the extent that the Court considers that those provisions are incompatible with the requirement in paragraph (1) or (2).

Penalties in addition to, or instead of, ineffectivenessE+W+N.I.

63.—(1) Where the Court makes a declaration of ineffectiveness, it must also order that the contracting authority or utility pay a civil financial penalty of the amount specified in the order.

(2) Paragraph (3) applies where—

(a)in proceedings for a declaration of ineffectiveness, the Court is satisfied that either of the grounds for ineffectiveness applies but does not make a declaration of ineffectiveness because regulation 61 requires it not to do so; or

(b)in any proceedings, the Court is satisfied that the concession contract has been entered into in breach of any requirement imposed by regulation 48, 56 or 57(1)(b), and does not make a declaration of ineffectiveness (whether because none was sought or because the Court is not satisfied that either of the grounds for ineffectiveness applies).

(3) In those circumstances, the Court must order at least one, and may order both, of the following penalties—

(a)that the duration of the concession contract be shortened to the extent specified in the order;

(b)that the contracting authority or utility pay a civil financial penalty of the amount specified in the order.

(4) When the Court is considering what order to make under paragraph (1) or (3), the overriding consideration is that the penalties must be effective, proportionate and dissuasive.

(5) In determining the appropriate order, the Court must take account of all the relevant factors, including—

(a)the seriousness of the relevant breach of the duty owed in accordance with regulation 50 or 51;

(b)the behaviour of the contracting authority or utility;

(c)where the order is to be made under paragraph (3), the extent to which the concession contract remains in force.

(6) Where more than one economic operator starts proceedings in relation to the same concession contract, paragraph (4) applies to the totality of penalties imposed in respect of the concession contract.

Civil financial penalties

(7) Subject to paragraph (8), where a contracting authority or utility is ordered by the High Court of England and Wales to pay a civil financial penalty under this regulation—

(a)the Court's order must state that the penalty is payable to the Minister for the Cabinet Office;

(b)the Court must send a copy of the order to the Minister;

(c)the contracting authority or utility must pay the penalty to the Minister; and

(d)the Minister must, on receipt of the penalty, pay it into the Consolidated Fund.

(8) Where the Minister for the Cabinet Office, or the Cabinet Office, is ordered to pay a civil financial penalty under this regulation—

(a)paragraph (7) does not apply; and

(b)the Minister for the Cabinet Office must pay the penalty into the Consolidated Fund.

(9) Subject to paragraph (10), where a contracting authority or utility is ordered by the High Court of Northern Ireland to pay a civil financial penalty under this regulation—

(a)the Court's order must state that the penalty is payable to the Department of Finance and Personnel;

(b)the Court must send a copy of the order to the Department;

(c)the contracting authority or utility must pay the penalty to the Department; and

(d)the Department must, when it receives the penalty, pay it into the Consolidated Fund of Northern Ireland.

(10) Where the Department of Finance and Personnel is ordered to pay a civil financial penalty under this regulation—

(a)paragraph (9) does not apply; and

(b)the Department must pay the penalty into the Consolidated Fund of Northern Ireland.

(11) Where a contracting authority or utility is a non-Crown body—

(a)any payment due under paragraph (7) may be enforced by the Minister for the Cabinet Office as a judgment debt due to the Minister; and

(b)any payment due under paragraph (9) may be enforced by the Department of Finance and Personnel as a judgment debt due to it.

Concession contract shortening

(12) When making an order under paragraph (3)(a), or at any time after doing so, the Court may make any order that it thinks appropriate for addressing the consequences of the shortening of the duration of the concession contract.

(13) Such an order may, for example, address issues of restitution and compensation as between those parties to the concession contract who are parties to the proceedings so as to achieve an outcome which the Court considers to be just in all the circumstances.

(14) Paragraph (15) applies where the parties to the concession contract have, at any time before the order under paragraph (3)(a) is made, agreed by contract any provisions for the purpose of regulating their mutual rights and obligations in the event of such an order being made.

(15) In those circumstances, the Court must not exercise its power to make an order under paragraph (12) in any way which is inconsistent with those provisions, unless and to the extent that the Court considers that those provisions are incompatible with the primary order that is being made, or has been made, under paragraph (3)(a).

(16) In paragraph (3)(a), “duration of the concession contract” refers only to its prospective duration as from the time when the Court makes the order.

Injunctions against the CrownE+W+N.I.

64.  In proceedings against the Crown, the Court has power to grant an injunction despite section 21 of the Crown Proceedings Act 1947 M44.

Marginal Citations

[F109PART 5AE+W+N.I.Processing of invoices submitted electronically

Textual Amendments

Contractual provisions relating to the processing of electronic invoicesE+W+N.I.

64A.—(1) This regulation applies in respect of any concession contract which has been awarded, or which is to be awarded, in accordance with these Regulations.

(2) A contracting authority or utility must ensure that every concession contract which it awards contains a provision requiring the contracting authority or utility to accept and process an electronic invoice submitted for payment by or on behalf of the contractor where the conditions in paragraph (3) are met.

(3) The conditions are that—

(a)the invoice is undisputed; and

(b)the invoice complies with the standard on electronic invoicing.

(4) A failure to comply with paragraph (2) does not, of itself, affect the validity of a contract that has been entered into.

(5) To the extent that a concession contract which has been awarded does not contain express provision requiring the contracting authority or utility to accept and process an electronic invoice where the conditions in paragraph (3) are met, a term to that effect is to be implied into the contract.

(6) For the purposes of this regulation, an electronic invoice complies with the standard on electronic invoicing where it complies with—

(a)the European standard, and

(b)any of the syntaxes,

published in Commission Implementing Decision (EU) 2017/1870 as amended from time to time.

(7) In this regulation, “electronic invoice” means an invoice which has been issued, transmitted and received in a structured electronic format which allows for its automatic and electronic processing.

Application of regulation 64A to utilities and sub-central contracting authoritiesE+W+N.I.

64B.—(1) Regulation 64A does not apply until 18th April 2020 in respect of a concession contract awarded by—

(a)a utility; or

(b)a contracting authority which is a sub-central contracting authority.

(2) In this regulation, “sub-central contracting authority” has the meaning given by regulation 2(1) of the Public Contracts Regulations 2015.]

PART 6E+W+N.I.Miscellaneous

[F110General provisions about regulations under these RegulationsE+W+N.I.

65ZA.—(1) Regulations under these Regulations are to be made by statutory instrument.

(2) A statutory instrument containing regulations under regulation 7(6) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(3) Any other statutory instrument containing regulations under these Regulations is subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Subject to paragraph (5), Regulations may not be made under regulation 38 without the consent of the Welsh Ministers and a Northern Ireland Department.

(5) Regulations (“the amending regulations”) may be made under regulation 38 without such consent, but in such cases the amending regulations must make provision in such a way as to avoid altering the effect of that regulation in so far as it applies to—

(a)devolved Welsh authorities, where the Welsh Ministers have not consented to the making of the amending regulations;

(b)devolved Northern Ireland authorities, where no Northern Ireland Department has consented to the making of the amending regulations.

(6) Regulations under these Regulations may make supplementary, incidental, transitional, transitory or saving provision.]

Textual Amendments

Review of these RegulationsE+W+N.I.

65.—(1) The Minister for the Cabinet Office must from time to time—

(a)carry out a review of these Regulations;

(b)set out the conclusions of the review in a report; and

(c)publish the report.

(2) In carrying out the review the Minister for the Cabinet Office must, so far as is reasonable, have regard to how the Concessions Directive is implemented in other member States.

(3) The report must in particular—

(a)set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b)assess the extent to which those objectives are achieved; and

(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of 5 years beginning on 18th April 2016.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding 5 years.

General transitional provisionE+W+N.I.

66.—(1) Nothing in these Regulations affects any concession contract award procedure commenced before 18th April 2016.

(2) For that purpose, a concession contract award procedure has been commenced before 18th April 2016 if, before that date—

(a)a public works concession contract notice has been sent to the Official Journal in accordance with the Public Contracts Regulations 2006 M45;

(b)a contract notice has been sent to the Official Journal in accordance with the Defence and Security Regulations in order to invite offers or requests to be selected for tender or to negotiate in respect of a proposed concession contract;

(c)the contracting authority or utility has had published any form of advertisement seeking offers or expressions of interest in a proposed concession contract; or

(d)the contracting authority or utility has contacted any economic operator in order to—

(i)seek expressions of interest or offers in respect of a proposed concession contract, or

(ii)respond to an unsolicited expression of interest or offer received from that economic operator in relation to a proposed concession contract.

(3) Nothing in these Regulations affects a concession contract awarded—

(a)before 18th April 2016; or

(b)after that date but where the award was not, by virtue of paragraphs (1) and (2), affected by these Regulations.

Marginal Citations

M45S.I. 2006/5, amended by S.I. 2007/3542, 2008/2256, 2683, 2848, 2009/1307, 2992, 2010/133, 976, 2011/1043, 1848, 2053, 2581, 3058, 2013/252, 1431, 2014/834 and by the Enterprise and Regulatory Reform Act 2013 (c.24), Schedule 20, paragraph 2. The Public Contracts Regulations 2006 (the “2006 Regulations”) were revoked with savings by the Public Contracts Regulations 2015 (S.I. 2015/102), regulations 116 and 117. Regulation 117 saves the 2006 Regulations so far as they apply in respect of public works concession contracts and services concession contracts within the meaning of the 2006 Regulations.

Matthew Hancock

Minister for the Cabinet Office

Regulation 2(1)

SCHEDULE 1E+W+N.I.ACTIVITIES CONSTITUTING WORKS

In this Schedule, ‘NACE’ has the same meaning as in Council Regulation (EEC) No 3037/90 on the classification of economic activities in the European Community [F111as that Regulation had effect in EU law immediately before [F112IP completion day]], and numerical references in the columns relating to the NACE relate to the Annex to that Regulation. In the event of any difference of interpretation between the CPV and the NACE, the CPV nomenclature shall apply.

NACE Rev. 1CPV Code
SECTION FCONSTRUCTION
DivisionGroupClassSubjectNotes
45Construction

This division includes:

construction of new buildings and works, restoring and common repairs.

45000000
45.1Site preparation45100000
45.11Demolition and wrecking of buildings; earth moving

This class includes:

—demolition of buildings and other structures,

—clearing of building sites,

—earth moving: excavation, landfill, levelling and grading of construction sites, trench digging, rock removal, blasting, etc.,

—site preparation for mining,

—overburden removal and other development and preparation of mineral properties and sites.

This class also includes:

—building site drainage,

—drainage of agricultural or forestry land.

45110000
45.12Test drilling and boring

This class includes:

—test drilling, test boring and core sampling for construction, geophysical, geological or similar purposes.

This class excludes:

—drilling of production oil or gas wells, see 11.20,

—water well drilling, see 45.25,

—shaft sinking, see 45.25,

—oil and gas field exploration, geophysical, geological and seismic surveying, see 74.20.

45120000
45.2Building of complete constructions or parts thereof; civil engineering45200000
45.21General construction of buildings and civil engineering works

This class includes:

—construction of all types of buildings construction of civil engineering constructions,

—bridges, including those for elevated highways, viaducts, tunnels and subways,

—long-distance pipelines, communication and power lines,

—urban pipelines, urban communication and power lines,

—ancillary urban works,

—assembly and erection of prefabricated constructions on the site.

This class excludes:

—service activities incidental to oil and gas extraction, see 11.20,

—erection of complete prefabricated constructions from self-manufactured parts not of concrete, see divisions 20, 26 and 28,

—construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations, see 45.23,

—building installation, see 45.3,

—building completion, see 45.4,

—architectural and engineering activities, see 74.20,

—project management for construction, see 74.20.

45210000

Except:

—45213316

45220000

45231000

45232000

45.22Erection of roof covering and frames

This class includes:

—erection of roofs,

—roof covering,

—waterproofing.

45261000
45.23Construction of highways, roads, airfields and sport facilities

This class includes:

—construction of highways, streets, roads, other vehicular and pedestrian ways,

—construction of railways,

—construction of airfield runways,

—construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations,

—painting of markings on road surfaces and car parks.

This class excludes:

—preliminary earth moving, see 45.11.

45212212 and DA03

45230000 except:

—45231000

—45232000

—45234115

45.24Construction of water projects

This class includes

construction of:

—waterways, harbour and river works, pleasure ports (marinas), locks etc.,

—dams and dykes,

—dredging,

—subsurface work.

45240000
45.25Other construction work involving special trades

This class includes:

—construction activities specialising in one aspect common to different kinds of structures, requiring specialised skill or equipment,

—construction of foundations, including pile driving,

—water well drilling and construction, shaft sinking,

—erection of non-self-manufactured steel elements,

—steel bending,

—bricklaying and stone setting,

—scaffolds and work platform erecting and dismantling, including renting of scaffolds and work platforms,

—erection of chimneys and industrial ovens.

This class excludes:

—renting of scaffolds without erection and dismantling, see 71.32

45250000

45262000

45.3Building installation45300000
45.31Installation of electrical wiring and fittings

This class includes:

installation in buildings or other construction projects of:

—electrical wiring and fittings,

—telecommunications systems,

—electrical heating systems,

—residential antennas and aerials,

—fire alarms,

—burglar alarm systems,

—lifts and escalators,

—lightning conductors, etc.

45213316

45310000

Except:

—45316000

45.32Insulation work activities

This class includes:

—installation in buildings or other construction projects of thermal, sound or vibration insulation.

This class excludes:

—waterproofing, see 45.22.

45320000
45.33Plumbing

This class includes:

—installation in buildings or other construction projects of:

—plumbing and sanitary equipment,

—gas fittings,

—heating, ventilation, refrigeration or air-conditioning equipment and ducts,

—sprinkler systems

This class excludes:

—installation of electrical heating systems, see 45.31.

45330000
45.34Other building installation

This class includes:

—installation of illumination and signalling systems for roads, railways, airports and harbours,

—installation in buildings or other construction projects of fittings and fixtures n.e.c.

45234115

45316000

45340000

45.4Building completion45400000
45.41Plastering

This class includes:

—application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials.

45410000
45.42Joinery installation

This class includes:

—installation of not self-manufactured doors, windows, door and window frames, fitted kitchens, staircases, shop fittings and the like, of wood or other materials,

—interior completion such as ceilings, wooden wall coverings, movable partitions, etc.

This class excludes:

—laying of parquet and other wood floor coverings, see 45.43.

45420000
45.43Floor and wall covering

This class includes:

—laying, tiling, hanging or fitting in buildings or other construction projects of:

—ceramic, concrete or cut stone wall or floor tiles,

—parquet and other wood floor coverings carpets and linoleum floor coverings,

—including of rubber or plastic,

—terrazzo, marble, granite or slate floor or wall coverings,

—wallpaper.

45430000
45.44Painting and glazing

This class includes:

—interior and exterior painting of buildings,

—painting of civil engineering structures,

—installation of glass, mirrors, etc.

This class excludes:

—installation of windows, see 45.42.

45440000
45.45Other building completion

This class includes:

—installation of private swimming pools,

—steam cleaning, sand blasting and similar activities for building exteriors,

—other building completion and finishing work n.e.c.

This class excludes:

—interior cleaning of buildings and other structures see 74.70.

45212212 and DA04

45450000

45.5Renting of construction or demolition equipment with operator45500000
45.50Renting of construction or demolition equipment with operator

This class excludes:

—renting of construction or demolition machinery and equipment without operators, see 71.32.

45500000

Textual Amendments

Regulation 2(1)

[F113SCHEDULE 1AE+W+N.I.PARTIES TO THE GPA

Textual Amendments

  • Armenia

  • Australia

  • Canada

  • European Union

  • Hong Kong, China

  • Iceland

  • Israel

  • Japan

  • Korea, Republic of

  • Liechtenstein

  • Moldova, Republic of

  • Montenegro

  • Netherlands with respect to Aruba

  • New Zealand

  • Norway

  • the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

  • Singapore

  • Switzerland

  • Ukraine

  • United States]

Regulation 4

SCHEDULE 2E+W+N.I.ACTIVITIES EXERCISED BY UTILITIES

Gas and heatE+W+N.I.

1.—(1) In the case of gas and heat, the following activities—

(a)the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat;

(b)the supply of gas or heat to such networks.

(2) The supply by a utility referred to in regulation 5(1)(b) or (c) of gas or heat to fixed networks which provide a service to the public shall not be considered a relevant activity within the meaning of sub-paragraph (1) where both of the following conditions are met—

(a)the production of gas or heat by that utility is the unavoidable consequence of carrying out an activity other than one referred to in this paragraph or in paragraphs 2 and 3;

(b)the supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20% of that utility's turnover on the basis of the average for the preceding 3 years, including the current year.

(3) In this paragraph, “supply” includes the generation, production, wholesale and retail sale of gas, other than the production of gas in the form of extraction which, instead, falls within the scope of paragraph 6.

ElectricityE+W+N.I.

2.—(1) In the case of electricity, the following activities—

(a)the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity;

(b)the supply of electricity to such networks.

(2) The supply by a utility referred to in regulation 5(1)(b) or (c) of electricity to fixed networks which provide a service to the public shall not be considered a relevant activity within the meaning of sub-paragraph (1) where both of the following conditions are met—

(a)the production of electricity by that utility takes place because its consumption is necessary for carrying out an activity other than one referred to in this paragraph or paragraphs 1 and 3;

(b)the supply to the public network depends only on that utility's own consumption and has not exceeded 30% of that utility's total production of energy, on the basis of the average for the preceding 3 years, including the current year.

(3) In this paragraph, “supply” includes the generation, production, wholesale and retail sale of electricity.

Transport servicesE+W+N.I.

3.—(1) Activities relating to the provision or operation of networks providing a service to the public in the field of transport by—

(a)railway;

(b)automated systems;

(c)tramway;

(d)trolley bus;

(e)bus; or

(f)cable.

(2) For the purposes of this paragraph, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority, such as—

(a)conditions on the routes to be served;

(b)the capacity to be made available; or

(c)the frequency of the service.

Ports and airportsE+W+N.I.

4.  Activities relating to the exploitation of a geographical area for the purpose of the provision of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway.

Postal servicesE+W+N.I.

5.—(1) Activities relating to the provision of—

(a)postal services;

(b)services other than postal services, on condition that such services are provided by an entity which also provides postal services that are not directly exposed to competition within the meaning of regulation 34(2) of the Utilities Contracts Regulations 2016 M46.

(2) In this paragraph—

(a)“postal item” means an item addressed in the final form in which it is to be carried, irrespective of weight, which includes—

(i)correspondence,

(ii)books,

(iii)catalogues,

(iv)newspapers,

(v)periodicals, and

(vi)postal packages containing merchandise with or without commercial value;

(b)“postal services” means services consisting of the clearance, sorting, routing and delivery of postal items, including both services falling within as well as services falling outside the scope of the universal service set up in accordance with the Postal Services Act 2011 M47;

(c)“services other than postal services” means services provided in the following areas—

(i)mail service management services (services both preceding and subsequent to despatch, including mailroom management services);

(ii)services concerning items for posting not included in the definition of “postal item” in this paragraph, such as direct mail bearing no address.

Marginal Citations

Extraction of oil and gas and exploration for, or extraction of, coal or other solid fuelsE+W+N.I.

6.  Activities relating to the exploitation of a geographical area for the purpose of—

(a)extracting oil or gas;

(b)exploring for, or extracting, coal or other solid fuels.

Regulation 19

SCHEDULE 3E+W+N.I.SOCIAL AND OTHER SPECIFIC SERVICES

DescriptionCPV Code

796110000-0, 75200000-8, 75231200-6, 75231240-8, 79622000-0 (supply services of domestic help personnel); 79624000-4 (supply services of nursing personnel) and 79625000-1 (supply services of medical personnel) from 85000000-9 to 853230000-9, 85143000-3,

98133100-5, 98133000-4 and 98200000-5 and 98500000-8 (private households with employed persons) and 98513000-2 to 98514000-9 (manpower services for households, agency staff services for households, clerical staff services for households, temporary staff for households, home-help services and domestic services).

Health, social and related services

85321000-5 and 85322000-2, 75000000-6 (administration, defence and social security services), 75121000-0, 75122000-7, 75124000-1; from 79995000-5 to 79995200-7; from 80000000-4 education and training services to 80660000-8; from 92000000-1 to 92342200-2; from 92360000-2 to 92700000-8;

79950000-8 (exhibition, fair and congress organisation services), 79951000-5 (seminar organisation services), 79952000-2 (event services), 79952100-3 (cultural event organisation services), 79953000-9 (festival organisation services), 79954000-6 (party organisation services), 79955000-3 (fashion shows organisation services),

79956000-0 (fair and exhibition organisation services)

Administrative, social, educational, healthcare and cultural services
75300000-9Compulsory social security services
75310000-2, 75311000-9, 75312000-6, 75313000-3, 75313100-4, 75314000-0, 75320000-5, 75330000-8, 75340000-1Benefit services
98000000-3, 98120000-0, 98132000-7, 98133110-8 and 98130000-3Other community, social and personal services including services furnished by trade unions, political organisations, youth associations and other membership organisation services
98131000-0Religious services

55100000-1 to 55410000-7; 55521000-8 to 55521200-0

55521000-8 catering services for private households, 55521100-9 Meals-on-wheels services, 55521200-0 Meal delivery service

55520000-1 catering services, 55522000-5 catering services for transport enterprises, 55523000-2 catering services for other enterprises or other institutions, 55524000-9 school catering services

55510000-8 canteen services, 55511000-5 canteen and other restricted-clientele cafeteria services,55512000-2 canteen management services, 55523100-3 school meal services

Hotel and restaurant services
79100000-5 to 79140000-7, 75231100-5Legal services to the extent not excluded under regulation 10(11)(d)
75100000-7 to 75120000-3, 75123000-4, 75125000-8 to 75131000-3Other administrative services and government services
75200000-8 to 75231000-4Provision of services to the community
75231210-9 to 75231230-5, 75240000-0 to 75252000-7, 79430000-7, 98113100-9Prison related services, public security and rescue services to the extent not excluded under regulation 10(11)(g)

79700000-1 to 79721000-4 (investigation and security services, security services, alarm-monitoring services, guard services, surveillance services, tracing system services, absconder-tracing services, patrol services, identification badge release services, investigation services and detective agency services)

79722000-1 (graphology services), 79723000-8 (waste analysis services)

Investigation and security services
64000000-6 (postal and telecommunications services), 64100000-7 (post and courier services), 64110000-0 (postal services), 64111000-7 (postal services related to newspapers and periodicals), 64112000-4 (postal services related to letters), 64113000-1 (postal services related to parcels), 64114000-8 (post office counter services), 64115000-5 (mailbox rental), 64116000-2 (post-restante services), 64122000-7 (internal office mail and messenger services)Postal services

50116510-9 (tyre-remoulding services)

71550000-8 (blacksmith services)

Miscellaneous services

98900000-2 (services provided by extra-territorial organisations and bodies)

98910000-5 (services specific to international organisations and bodies)

International services

Regulation 51B

[F114SCHEDULE 4E+W+N.I.INTERNATIONAL TRADE AGREEMENTS

Textual Amendments

Agreement establishing an Association between the United Kingdom of Great Britain and Northern Ireland and the Republic of Chile, signed at Santiago on 30th January 2019.

Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation, signed at Bern on 11th February 2019.

Trade and Partnership Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the State of Israel, signed at Tel Aviv on 18th February 2019.

Economic Partnership Agreement between the CARIFORUM States, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, signed in St Lucia on 22nd March 2019.

Trade Agreement between the United Kingdom of Great Britain and Northern Ireland, of the one part, and the Republic of Colombia, the Republic of Ecuador and the Republic of Peru, of the other part, signed at Quito on 15th May 2019.

Agreement Establishing an Association between the United Kingdom of Great Britain and Northern Ireland and Central America, signed at Managua on 18th July 2019.

Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland, of the one part, and the Republic of Korea, of the other part, signed at London on 22nd August 2019.

Strategic Partnership and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland and Georgia, signed at London on 21st October 2019.

Partnership, Trade and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland and the Republic of Kosovo, signed at Pristina on 3rd December 2019.

Political, Free Trade and Strategic Partnership Agreement between the United Kingdom of Great Britain and Northern Ireland and Ukraine, signed at London on 8th October 2020.

Agreement between the United Kingdom of Great Britain and Northern Ireland and Japan for a Comprehensive Economic Partnership, signed at Tokyo on 23rd October 2020.

Partnership, Trade and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland and the Republic of North Macedonia, signed at Skopje on 3rd December 2020.

Agreement on Trade Continuity between the United Kingdom of Great Britain and Northern Ireland and Canada, signed at Ottawa on 9th December 2020.

Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and the Republic of Singapore, signed at Singapore on 10th December 2020.

Trade Continuity Agreement between the United Kingdom of Great Britain and Northern Ireland and the United Mexican States, signed at Mexico City on 15th December 2020.

Strategic Partnership, Trade and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland and the Republic of Moldova, signed at Chisnau on 24th December 2020.

Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and the Socialist Republic of Viet Nam, signed at London on 29th December 2020.

Partnership, Trade and Cooperation Agreement between the United Kingdom of Great Britain and Northern Ireland and the Republic of Albania, signed at Tirana on 5th February 2021.

Partnership, Trade and Cooperation Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Serbia, signed at Belgrade on 16th April 2021.

[F115Free Trade Agreement between Iceland, the Principality of Liechtenstein and the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland, signed at London on 8th July 2021.]

Textual Amendments

[F116For contracting authorities and utilities that are not devolved Welsh authorities: Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and Australia, signed at London on 16th December 2021 and Adelaide on 17th December 2021.]]

Textual Amendments

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement, for England and Wales and Northern Ireland, Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts (OJ No L 94, 28.3.2014, p1) (“the Concessions Directive”).

These Regulations impose obligations on contracting authorities (as defined in regulation 4) and utilities (as defined in regulation 5) concerning the award of concession contracts.

Parts 1 and 2 set out the scope of the Regulations (including by reference to the thresholds based on the estimated value of the concession contract) and lay down general principles that apply to concession contracts within the scope of the Regulations and the principles for the award of mixed contracts. Chapter 2 of Part 2 contains details of the types of concession contracts that are excluded from the scope of these Regulations.

Part 3 contains rules on the award of concession contracts. Chapter 1 contains obligations relating to the publication of concession notices and concession award notices (regulations 31 to 33), the electronic availability of concession documents (regulation 34) and the prevention of corruption and conflicts of interest (regulation 35). Chapter 2 of Part 3 contains provisions relating to technical and functional requirements of concession contracts (regulation 36), the selection and qualitative assessment of candidates (regulation 38) and award criteria (regulation 41).

Part 4 contains rules on the performance of concession contracts, including provisions relating to subcontracting (regulation 42), the modification and termination of concession contracts (regulations 43 and 44) and reporting requirements (regulation 45). Part 5 contains provisions about remedies (and their facilitation) in relation to concession contracts within the scope of these Regulations. These provisions replicate, with consequential amendments, Part 3 of the Public Contracts Regulations 2015 (S.I. 2015/102) and Part 9 of the Utilities Contracts Regulations 2006 (S.I. 2006/6). In doing so they implement, for England and Wales and Northern Ireland, the following EU instruments, as amended by Articles 46 and 47 of the Concessions Directive—

(a)

Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ No L 395, 30.12.1989, p33); and

(b)

Council Directive 92/13/EEC coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunication sectors (OJ No L 76, 23.3.1992, p14).

A transposition note and a full impact assessment of the effect that this instrument will have on the costs of business and the voluntary sector is available at www.gov.uk. It is also annexed to the Explanatory Memorandum which is available alongside the instrument at www.legislation.gov.uk.