PART 3Rules on the award of concession contracts

CHAPTER 1General principles

Concession notices31

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, 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 send 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 and that a report is sent to the Commission where it so requests;

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).