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The Concession Contracts (Scotland) Regulations 2016

S.S.I. 2016/65 · Made 29 January 2016 · Extends to Scotland

Up to date with all changes known to legislation.gov.uk, revised to 24 March 2026.

Public Procurement

Made 29th January 2016

Laid before the Scottish Parliament 2nd February 2016

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 1972f1 (“the 1972 Act”) and all other powers enabling them to do so.

C1These 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/EC of the European Parliament and of the Council on a Community framework for electronic signaturesf2;

(b)

Regulation (EC) 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV)f3;

(c)

Directive 2002/21/EC of the European Parliament and of the Council on the common regulatory framework for electronic communication networks and servicesf4;

(d)

Directive 2004/39/EC of the European Parliament and of the Council concerning markets for financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EECf5;

(e)

Commission Decision 2009/767/EC setting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2009)7806)f6;

(f)

Directive 2010/13/EU of 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 servicesf7;

(g)

Directive 2013/34/EU of the European Parliament and of the Council on the annual financial statements, consolidated financial statement and related reports of certain types of undertakingf8, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC;

(h)

Commission Decision 2011/130/EU establishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities under Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081f9;

(i)

Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contractsf10;

(j)

Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/ECf11; and

(k)

Directive 2014/25/EU of 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/ECf12,

and they are to be construed accordingly.C2

Annotations to the whole text

Modifications

C1

Regulations: power to amend conferred (23.5.2024) by Procurement Act 2023 (c. 54), ss. 115(3)(4), 127(2); S.I. 2024/716, reg. 2(1)

C2

Regulations applied (24.2.2025) by Procurement Act 2023 (c. 54), ss. 119(2)(c), 127(2); S.I. 2024/716, Sch. (as amended by S.I. 2024/959, regs. 1(2), 2(7)(a))

Footnotes

f1

1972 c.68. Section 2(2) was amended by the Scotland Act 1998 (c.46), Schedule 8, paragraph 15(3) (which was amended by section 27(4) of the Legislative and Regulatory Reform Act 2006 (“the 2006 Act”). Section 2(2) was also amended by section 27(1)(a) of the 2006 Act and by the European Union (Amendment) Act 2008 (c.7), section 3(3) and Part 1 of the Schedule (“the 2008 Act”). The functions conferred upon a Minister of the Crown under section 2(2) of the European Communities Act 1972, insofar as within devolved competence, was transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act. Paragraph 1A of Schedule 2 was inserted by section 28 of the 2006 Act and was amended by the 2008 Act Schedule, Part 1.

f2

OJ L 13, 19.1.2000, p.12, amended by Regulation (EC) No 1137/2008 (OJ L 311, 21.11.2008, p.1).

f3

OJ L 340, 16.12.2002, p.1.

f4

OJ L 108, 24.4.2002, p.33; last amended by Directive 2009/140/EC (OJ L 337. 18.12.2009, p.37.

f5

OJ L 145, 30.4.2004, p.1.

f6

OJ L 274, 20.10.2009, p.36, last amended by Commission Decision 2013/662/EU (OJ L 306, 16.11.2013, p.21).

f7

OJ L 95, 15.4.2010, p.1.

f8

OJ L 182, 29.6.2013, p.19.

f9

OJ L 53, 26.2.2011, p.66.

f10

OJ L 94, 28.3.2014, p.1.

f11

OJ L 94, 28.3.2014, p.65.

f12

OJ L 94, 28.3.2014, p.243.

Contents

  1. Part 1: GENERAL
  2. 1Citation, commencement and extent
  3. 2Interpretation
  4. 3Meaning of “concession contract”
  5. 4Meaning of “contracting authority”
  6. 5Meaning of “utility”
  7. 6Meaning of “concession notice”
  8. Part 2: SCOPE AND PRINCIPLES
  9. Chapter 1: CONCESSION CONTRACTS TO WHICH THESE REGULATIONS APPLY
  10. 7Subject matter and application of these Regulations
  11. 7ARegulation of procurement by UK contracting authorities
  12. 8Thresholds and methods for calculating the estimated value of the concession contract
  13. 8AReview and amendment of the threshold in regulation 8(1)
  14. Chapter 2: EXCLUSIONS
  15. 9Exclusions: Concession contracts awarded on the basis of an exclusive right
  16. 10Exclusions: Concession contracts awarded pursuant to international rules
  17. 11Exclusions: Concession contracts involving defence or security aspects which are awarded or organised pursuant to international rules
  18. 12Exclusions: Specific service contracts
  19. 13Exclusions: Electronic Communications
  20. 14Exclusions: Water
  21. 15Exclusions: Concession contracts awarded to an affiliated undertaking
  22. 16Exclusions: Concession contracts awarded to a joint venture or to a utility forming part of a joint venture
  23. 17Notification of information by utilities Repealed
  24. 18Exclusion of activities which are directly exposed to competition
  25. 19Exclusions: Concession contracts between entities within the public sector
  26. Chapter 3: GENERAL PROVISIONS
  27. 20Duration of the concession contract
  28. 21Social and other specific services
  29. 22Mixed Procurement
  30. 23Mixed procurement involving defence or security aspects
  31. 24Contracts covering both activities listed in Schedule 2 and other activities
  32. 25Contracts covering both activities listed in Schedule 2 and activities involving defence or security aspects
  33. Chapter 4: SPECIFIC SITUATIONS
  34. 26Reserved Concession Contracts
  35. 27Specific situations: Research and development services
  36. Chapter 5: PRINCIPLES
  37. 28Principles of equal treatment, non-discrimination and transparency
  38. 29Economic Operators
  39. 30Nomenclatures
  40. 31Confidentiality
  41. 32Rules applicable to communication
  42. Part 3: RULES ON THE PROCUREMENT FOR THE AWARD OF CONCESSION CONTRACTS
  43. Chapter 6: GENERAL PRINCIPLES
  44. 33Concession notice
  45. 34Concession contract award notice
  46. 35Form and manner of publication of notices
  47. 36Electronic availability of concession documents
  48. 37Conflict of Interest
  49. Chapter 7: PROCEDURAL GUARANTEES
  50. 38Technical and functional requirements
  51. 39Procedural guarantees
  52. 40Exclusion grounds
  53. 41Selection of and qualitative assessment of candidates
  54. 42Time limits for receipt of applications and tenders for the concession contract
  55. 43Informing candidates and tenderers
  56. 44Concession contract award criteria
  57. Part 4: RULES ON THE PERFORMANCE OF CONCESSION CONTRACTS
  58. 44AElectronic invoicing
  59. 45Subcontracting
  60. 46Modification of concession contract during contract term
  61. 47Termination of concession contract
  62. Part 5: REMEDIES
  63. Chapter 8: FACILITATION OF REMEDIES
  64. 48Scope of Chapter 8
  65. 49Notice of a decision to award a concession contract
  66. 50Standstill period
  67. Chapter 9: APPLICATIONS TO THE COURT
  68. 51Duty owed to economic operators , including those from countries with whom the EU has a relevant international agreement other than the GPA
  69. 51ADuty owed to economic operators from GPA parties
  70. 51BDuty owed to economic operators from countries with whom the United Kingdom has an international agreement, other than the GPA
  71. 52Enforcement of duties through the Courts
  72. 53Automatic suspension of authority power to proceed with concession contract award
  73. 54Powers and duties of the court
  74. 55Ineffectiveness orders
  75. 56Powers of the court
  76. 57General interest grounds for not making a declaration of ineffectiveness
  77. 58Other orders
  78. 59Financial penalties
  79. Part 6: REPORTS
  80. 60ZAGeneral provisions about regulations under these Regulations
  81. 60Reporting requirements
  82. 61Review of these Regulations
  83. Part 7: TRANSITIONAL, SAVINGS AND TRANSITORY PROVISIONS
  84. 62Interpretation of Part 7
  85. 63Transitional provision and saving where procurement was commenced before 18th April 2016
  86. 64Transitory provision prior to full commencement of regulation 32(1) to (7)
  87. Signature
  88. Schedule 1ACTIVITIES CONSTITUTING WORKS
  89. Schedule 1APARTIES TO THE GPA
  90. Schedule 2ACTIVITIES EXERCISED BY UTILITIES
  91. 1Gas and heat
  92. 2Electricity
  93. 3Transport services
  94. 4Ports and airports
  95. 5Postal services activities
  96. 6Oil and gas
  97. Schedule 3SOCIAL AND OTHER SPECIFIC SERVICES
  98. Schedule 4LIST OF INTERNATIONAL SOCIAL AND ENVIRONMENTAL CONVENTIONS REFERRED TO IN REGULATION 40(9)
  99. Schedule 5INTERNATIONAL TRADE AGREEMENTS
  100. Explanatory note