The Concession Contracts (scotland) Regulations 2016

Publication Date:January 01, 2016
 
FREE EXCERPT

2016No. 65

PUBLIC PROCUREMENT

The Concession Contracts (scotland) Regulations 2016

29thJanuary2016

2ndFebruary2016

Coming into force in accordance with regulation 1

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972( 1) (‘the 1972 Act’) and all other powers enabling them to do so.

These Regulations make provision for a purpose mentioned in that section and it appears to the Scottish Ministers that it is expedient for the following EU instruments to be construed as references to those EU instruments or provisions of those EU Instruments (as appropriate) as amended from time to time if they are expressly mentioned in these Regulations, and they are to be construed accordingly—

(a) Directive 1999/93/ECof the European Parliament and of the Council on a Community framework for electronic signatures( 2);

(b) Regulation (EC) 2195/2002of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV)( 3);

(c) Directive 2002/21/ECof the European Parliament and of the Council on the common regulatory framework for electronic communication networks and services( 4);

(d) Directive 2004/39/ECof the European Parliament and of the Council concerning markets for financial instruments amending Council Directives 85/611/EECand 93/6/EECand Directive 2000/12/ECof the European Parliament and of the Council and repealing Council Directive 93/22/EEC( 5);

(e) Commission Decision 2009/767/ECsetting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/ECof the European Parliament and of the Council on services in the internal market (notified under document C(2009)7806)( 6);

(f) Directive 2010/13/EUof the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in member States concerning the provision of audio-visual media services( 7);

(g) Directive 2013/34/EUof the European Parliament and of the Council on the annual financial statements, consolidated financial statement and related reports of certain types of undertaking( 8), amending Directive 2006/43/ECof the European Parliament and of the Council and repealing Council Directives 78/660/EECand 83/349/EEC;

(h) Commission Decision 2011/130/EUestablishing minimum requirements for the crossborder processing of documents signed electronically by competent authorities under Directive 2006/123/ECof the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081( 9);

(i) Directive 2014/23/EUof the European Parliament and of the Council on the award of concession contracts( 10);

(j) Directive 2014/24/EUof the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC( 11); and

(k) Directive 2014/25/EUof the European Parliament and of the Council on procurement entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC( 12),

and they are to be construed accordingly.

PART 1

GENERAL

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Concession Contracts (Scotland) Regulations 2016.

(2) Subject to paragraph (3), these Regulations come into force on 18th April 2016.

(3) Regulation 32(1) to (7) (rules applicable to communication) comes into force on—

(a) 18th April 2017 in relation to procurement by a central purchasing body; and

(b) 18th October 2018 in relation to procurement by any other contracting entity.

(4) These Regulations extend to Scotland only.

Interpretation

2.—(1) In these Regulations—

‘body governed by public law’ means a body that has legal personality, is established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character and which—

(a) is financed for the most part by the State, regional or local authorities, or by any other body governed by public law;

(b) is subject to management supervision by any such authority or body; or

(c) has an administrative, managerial or supervisory board more than half the members of which were appointed by any body referred to in sub-paragraph (a);

‘candidate’ means an economic operator that has sought an invitation or has been invited to take part in a procurement for the award of a concession contract;

‘central purchasing body’ means a contracting entity providing purchasing activity conducted on a permanent basis in one of the following forms—

(d) the acquisition of supplies or services for contracting entities;

(e) the award of a concession contract for works, supplies or services intended for contracting entities;

‘commenced’ in relation to procurement means—

(f) if a concession notice has been sent to the Official Journal in accordance with regulation 33 (concession notice);

(g) if a prior information notice has been published in accordance with regulation 33; or

(h) in any case where there is no such advertising, if the contracting entity has contacted any economic operator—

(i) in order to seek expressions of interest or offers in respect of a proposed concession contract; or

(ii) in response to an unsolicited expression of interest or offer in respect of a proposed concession contract;

‘Commission’ means European Commission;

‘concessionaire’ means an economic operator that has been awarded a concession contract;

‘concession contract award notice’ means the notice referred to in regulation 34 (concession contract award notice);

‘concession contract’ has the meaning given by regulation 3 (meaning of ‘concession contract’);

‘Concession Contracts Directive’ means Directive 2014/23/EUof the European Parliament and of the Council on the award of concession contracts( 13);

‘concession document’ means any document produced or referred to by the contracting entity to describe or determine elements of the concession contract or the procurement procedure, including the concession notice, the technical and functional requirements, proposed conditions of the 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 (meaning of ‘concession notice’);

‘contracting body’ (except in regulation 19 (Exclusions: concession contacts between entities within the public sector)) means a contracting authority or utility;

‘CPV’ means the Common Procurement Vocabulary as adopted by Regulation (EC) No 2195/2002of the European Parliament and of the Council on the Common Procurement Vocabulary( 14) and ‘CPV Code’ shall be construed accordingly;

‘Defence and Security Regulations’ means the Defence and Security Public Contracts Regulations 2011( 15);

‘disabled’, in relation to a person, means a disabled person within the meaning of the Equality Act 2010( 16) 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 or both 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 processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, radio, optical or other electromagnetic means;

‘exclusive right’ means a right granted by a competent authority of a member State by means of any law, regulation or published administrative provision which is compatible with the 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—

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

‘Official Journal’ means the Official Journal of the European Union;

‘prior information notice’ means the notice referred to in regulation 33(3) (concession notice);

‘procurement’ means the process undertaken by a contracting entity leading to the award of a concession contract for the acquisition of works, supplies or services from an economic operator;

‘services concession contract’ has the meaning given by regulation 3(3) (meaning of ‘services concession contract’);

‘tenderer’ means an economic operator that has submitted a tender;

‘TFEU’ means the Treaty on the Functioning of the European Union( 17);

‘the Treaties’ means the Treaty on European Union( 18) and the TFEU;

‘utility’ has the meaning given by regulation 5 (meaning of ‘utility’);

‘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;

‘working day’ means a day other than a Saturday, Sunday or a bank holiday in Scotland within the meaning of the Banking and Financial Dealings Act 1971( 19);

‘works concession contract’ has the meaning given by regulation 3(2) (meaning of ‘works concession contract’);

‘written’ or ‘in writing’ means any expression which can be read by a person, reproduced and subsequently communicated, including information transmitted and stored by electronic means.

(2) Unless the context otherwise requires, any other expression used both in these Regulations (other than in Part 5) and in the Concession Contracts Directive has the meaning that it bears in that Directive.

(3) Except in regulation 52(4) (enforcement of...

To continue reading

REQUEST YOUR TRIAL