The Concession Contracts Regulations 2016

Selection of and qualitative assessment of candidates E+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 M1 or article 9 or 9A of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 M2 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 M3 ;

(b) corruption within the meaning of section 1(2) of the Public Bodies Corrupt Practices Act 1889 M4 or section 1 of the Prevention of Corruption Act 1906 M5 ;

(c) the common law offence of bribery;

(d) bribery within the meaning of sections 1, 2 or 6 of the Bribery Act 2010 M6 , or section 113 of the Representation of the People Act 1983 M7 ;

F1 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) any offence listed—

(i) in section 41 of the Counter Terrorism Act 2008 M8 ; 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 M9 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 M10 ;

(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 M11 or article 45, 46 or 47 of the Proceeds of Crime (Northern Ireland) Order 1996 M12 ;

(j) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 M13 ;

(k) an offence under section 59A of the Sexual Offences Act 2003 M14 ;

(l) an offence under section 71 of the Coroners and Justice Act 2009 M15 ;

(m) an offence under [F2 sections 1, 2 or 4] of the Modern Slavery Act 2015 M16 ;

(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 M17 ; or

(o) any other offence within the meaning of [F3 Article 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 F4 ... national law, collective agreements or [F5 , 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 M18 or the Utilities Contracts Regulations 2016 M19 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 M20 , 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.

[F6 Power 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

F1 Reg. 38(8)(e) omitted (31.12.2020) by virtue of The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 8(21)(a)(i) (with Sch. paras. 3-5)

F2 Words in reg. 38(8)(m) substituted (18.4.2019) by The Public Procurement (Electronic Invoices etc.) Regulations 2019 (S.I. 2019/624), regs. 1(2), 4(2) (with reg. 6)

F3 Words in reg. 38(8)(o) substituted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 8(21)(a)(ii) (with Sch. paras. 3-5)

F4 Words in reg. 38(16)(a) omitted (31.12.2020) by virtue of The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 8(21)(b)(i) (with Sch. paras. 3-5)

F5 Words in reg. 38(16)(a) inserted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 8(21)(b)(ii) (with Sch. paras. 3-5)

F6 Reg. 38(26)-(28) and heading inserted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 8(21)(c) (with Sch. paras. 3-5)

Marginal Citations

M1 1977 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).

M2 S.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.

M3 OJ No L 300, 11.11.2008, p42.

M4 1889 c.69; this Act was repealed by the Bribery Act 2010 (c.23), Schedule 2.

M5 1906 c.34; this Act was repealed by the Bribery Act 2010, Schedule 2.

M6 2010 c.23.

M7 1983 c.2; section 113 was amended by the Greater London Authority Act 1999 (c.29), Schedule 3, paragraph 30(2).

M8 2008 c.28.

M9 2007 c.27.

M10 2002 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).

M11 1988 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.

M12 S.I. 1996/1299 (N.I.9); articles 45, 46 and 47 were repealed by the Proceeds of Crime Act 2002 (c.29), Schedule 11, paragraph 31(2).

M13 2004 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.

M14 2003 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.

M15 2009 c.25; section 71 was repealed by the Modern Slavery Act 2015, Schedule 5, paragraph 8.

M16 2015 c.30.

M17 1994 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.

M18 S.I. 2015/102, as amended by S.I. 2016/275.

M19 S.I. 2016/274.

M20 OJ No L 216, 20.8.2009, p76, last amended by Commission Regulation (EU) 2015/2340 (OJ No L 330, 16.12.2015, p14).