The Concession Contracts (Scotland) Regulations 2016
S.S.I. 2016/65 · Made 29 January 2016 · Extends to Scotland
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—
Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signaturesf2;
Regulation (EC) 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV)f3;
Directive 2002/21/EC of the European Parliament and of the Council on the common regulatory framework for electronic communication networks and servicesf4;
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;
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;
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;
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;
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;
Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contractsf10;
Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/ECf11; and
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
- Part 1: GENERAL
- 1Citation, commencement and extent
- 2Interpretation
- 3Meaning of “concession contract”
- 4Meaning of “contracting authority”
- 5Meaning of “utility”
- 6Meaning of “concession notice”
- Part 2: SCOPE AND PRINCIPLES
- Chapter 1: CONCESSION CONTRACTS TO WHICH THESE REGULATIONS APPLY
- 7Subject matter and application of these Regulations
- 7ARegulation of procurement by UK contracting authorities
- 8Thresholds and methods for calculating the estimated value of the concession contract
- 8AReview and amendment of the threshold in regulation 8(1)
- Chapter 2: EXCLUSIONS
- 9Exclusions: Concession contracts awarded on the basis of an exclusive right
- 10Exclusions: Concession contracts awarded pursuant to international rules
- 11Exclusions: Concession contracts involving defence or security aspects which are awarded or organised pursuant to international rules
- 12Exclusions: Specific service contracts
- 13Exclusions: Electronic Communications
- 14Exclusions: Water
- 15Exclusions: Concession contracts awarded to an affiliated undertaking
- 16Exclusions: Concession contracts awarded to a joint venture or to a utility forming part of a joint venture
- 17Notification of information by utilities Repealed
- 18Exclusion of activities which are directly exposed to competition
- 19Exclusions: Concession contracts between entities within the public sector
- Chapter 3: GENERAL PROVISIONS
- 20Duration of the concession contract
- 21Social and other specific services
- 22Mixed Procurement
- 23Mixed procurement involving defence or security aspects
- 24Contracts covering both activities listed in Schedule 2 and other activities
- 25Contracts covering both activities listed in Schedule 2 and activities involving defence or security aspects
- Chapter 4: SPECIFIC SITUATIONS
- 26Reserved Concession Contracts
- 27Specific situations: Research and development services
- Chapter 5: PRINCIPLES
- 28Principles of equal treatment, non-discrimination and transparency
- 29Economic Operators
- 30Nomenclatures
- 31Confidentiality
- 32Rules applicable to communication
- Part 3: RULES ON THE PROCUREMENT FOR THE AWARD OF CONCESSION CONTRACTS
- Chapter 6: GENERAL PRINCIPLES
- 33Concession notice
- 34Concession contract award notice
- 35Form and manner of publication of notices
- 36Electronic availability of concession documents
- 37Conflict of Interest
- Chapter 7: PROCEDURAL GUARANTEES
- 38Technical and functional requirements
- 39Procedural guarantees
- 40Exclusion grounds
- 41Selection of and qualitative assessment of candidates
- 42Time limits for receipt of applications and tenders for the concession contract
- 43Informing candidates and tenderers
- 44Concession contract award criteria
- Part 4: RULES ON THE PERFORMANCE OF CONCESSION CONTRACTS
- 44AElectronic invoicing
- 45Subcontracting
- 46Modification of concession contract during contract term
- 47Termination of concession contract
- Part 5: REMEDIES
- Chapter 8: FACILITATION OF REMEDIES
- 48Scope of Chapter 8
- 49Notice of a decision to award a concession contract
- 50Standstill period
- Chapter 9: APPLICATIONS TO THE COURT
- 51Duty owed to economic operators , including those from countries with whom the EU has a relevant international agreement other than the GPA
- 51ADuty owed to economic operators from GPA parties
- 51BDuty owed to economic operators from countries with whom the United Kingdom has an international agreement, other than the GPA
- 52Enforcement of duties through the Courts
- 53Automatic suspension of authority power to proceed with concession contract award
- 54Powers and duties of the court
- 55Ineffectiveness orders
- 56Powers of the court
- 57General interest grounds for not making a declaration of ineffectiveness
- 58Other orders
- 59Financial penalties
- Part 6: REPORTS
- 60ZAGeneral provisions about regulations under these Regulations
- 60Reporting requirements
- 61Review of these Regulations
- Part 7: TRANSITIONAL, SAVINGS AND TRANSITORY PROVISIONS
- 62Interpretation of Part 7
- 63Transitional provision and saving where procurement was commenced before 18th April 2016
- 64Transitory provision prior to full commencement of regulation 32(1) to (7)
- Signature
- Schedule 1ACTIVITIES CONSTITUTING WORKS
- Schedule 1APARTIES TO THE GPA
- Schedule 2ACTIVITIES EXERCISED BY UTILITIES
- 1Gas and heat
- 2Electricity
- 3Transport services
- 4Ports and airports
- 5Postal services activities
- 6Oil and gas
- Schedule 3SOCIAL AND OTHER SPECIFIC SERVICES
- Schedule 4LIST OF INTERNATIONAL SOCIAL AND ENVIRONMENTAL CONVENTIONS REFERRED TO IN REGULATION 40(9)
- Schedule 5INTERNATIONAL TRADE AGREEMENTS
- Explanatory note