PART 5Remedies
CHAPTER 2Applications to the court
Grounds for ineffectiveness60
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 F1on 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 F2on the UK e-notification service to be permitted by these Regulations;
b
the contracting authority or utility has had published F3on 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 F4on the UK e-notification service.
4
In paragraph (3), “voluntary transparency notice” means a notice which F5... 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.
5The second ground
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.