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The Concession Contracts (Scotland) Regulations 2016

Type Scottish-Statutory-Instrument

Publication 2016-01-29

Last updated 2026-03-24

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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(b) a contracting entity must specify the level of security required for the electronic means of communication in the various stages of the specific procurement;

(d) if paragraph (18) applies, the contracting entity must accept advanced electronic signatures supported by a qualified certificate, created with or without a secure signature creation device, subject to compliance with all of the following conditions—

(i) the contracting entity must establish the required advanced electronic signature format on the basis of formats established in Electronic Signature Commission Decision 2011/130/EU³⁰ and must put in place necessary measures to be able to process these formats technically;

(ii) if a different format of electronic signature is used, the electronic signature or the electronic document carrier must include information on existing validation possibilities;

(iii) the validation possibilities must allow the contracting entity to validate the received electronic signature as an advanced electronic signature supported by a qualified certificate, such validation to be online, free of charge and in a way that is understandable for non-English speakers;

(iv) if a tender is signed with an advanced electronic signature with the support of a qualified certificate from a provider that is included on a trusted list provided for in the Trusted Lists Commission Decision 2009/767/EC³¹, the contracting entity must not apply additional requirements that may hinder the use of the signature by the tenderer.

(18) This paragraph applies where a contracting entity concludes that the level of risk assessed in accordance with paragraphs (20) and (21) is such that advanced electronic signatures as defined by Regulation (EU) No 910/2014 of the European Parliament and of the Council on electronic identification and trust services for electronic transactions in the internal market ³², ... are required.

(19) A contracting entity must assess the certificate referred to in paragraph (17)(d) by taking into account whether the certificate is provided by a certificate services provider, which is on a trusted list provided for in the Trusted Lists Commission Decision.

(20) In deciding the level of security required at each stage of a procurement for the award of a concession contract and in concluding whether the level of risk is such that advanced electronic signatures are required, a contracting entity must assess the risks having regard to—

(a) the likelihood of particular risks materialising;

(b) the potential adverse consequences if those risks materialise;

(d) the need for proportionality between the expected benefits of any particular security requirements (in terms of eliminating or reducing any of the risks referred to in paragraph (21) and the costs, burdens and obligations which those requirements may impose upon an economic operator.

(21) A contracting entity must assess all relevant risks, including, in particular, where applicable—

(a) the risk to the proper functioning and integrity of the specific procurement process, including risks of breach of these Regulations;

(b) risks to national security;

(c) the risk of inadvertent or unauthorised disclosure of, or access to, any economic operator’s confidential information;

(d) the risk of inadvertent or unauthorised disclosure of, or access to, information held by the contracting entity including information relating to the specific procurement;

(e) the risk that use of electronic communications could provide opportunity for malicious attacks on the electronic systems of, or data held by, the entity, any economic operator or any other person, including introduction of malware or denial of service attacks; and

(f) any other material risk relating to the procurement in question.

(22) Paragraph (23) applies where a contracting entity located in Scotland signs and issues a document for use in the procurement for the award of concession contract within the scope of the Concession Contracts Directive, whether the procurement is under these Regulations or under the law of any member State.

(23) The contracting entity may establish the required advanced signature format in accordance with the requirements set out in Article 1(2) the Electronic Signature of Commission Decision 2011/130/EU³³, and, where it does so—

(a) it must put in place the necessary measures to be able to process that format technically by including the information required for the purpose of processing the signature in the document concerned; and

(b) the documents must contain, in the electronic signature or in the electronic document carrier, information on existing validation possibilities that allow the validation of the received electronic signature online, free of charge and in a way that is understandable for non-English speakers.

PART 3 — RULES ON THE PROCUREMENT FOR THE AWARD OF CONCESSION CONTRACTS

CHAPTER 6 — GENERAL PRINCIPLES

Concession notice

33

(1) A contracting entity wishing to award a concession contract, other than a concession contract for social and other specific services listed in Schedule 3, must make known their intention through the publication of a concession notice.

(2) Such a concession notice must contain—

(a) the information set out in Annex V to the Concession Contracts Directive, but as if—

(i) in paragraph 3, “Article 34(2)” were a reference to regulation 36(3) of these Regulations,

(ii) in paragraph 10, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations, and

(iii) paragraph 15 (financing by EU funds) were omitted; and

(b) any other information that the contracting entity considers useful;

...

(3) A contracting entity wishing to award a concession contract for social and other specific services listed in Schedule 3 must make known their intention of a planned concession contract award through the publication of a prior information notice.

(4) Such a prior information notice must contain the information set out in Annex VI to the Concession Contracts Directive and must be in the format of the standard forms set out in Commission Implementing Regulation 2015/1986.

(5) This regulation does not apply in any of the following cases—

(a) if no applications, no suitable applications, no tenders or no suitable tenders have been submitted in response to a prior procurement for the award of a concession contract, provided that the initial conditions of the concession contract are not substantially altered and that a report is sent to the Scottish Ministers if they so request;

(b) if the works or services can be supplied only by a particular economic operator for any of the following reasons—

(i) the aim of the concession contract is the creation or acquisition of a unique work of art or artistic performance;

(ii) competition is absent for technical reasons;

(iii) the existence of an exclusive right;

(iv) the protection of intellectual property rights and exclusive rights other than exclusive rights as defined in regulation 2 (interpretation),

but only, in the case of sub-paragraphs (ii) to (iv), if no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the concession contract award.

(6) For the purposes of paragraph (5)(a)—

(a) a tender must be considered not to be suitable if it is irrelevant to the concession contract, being manifestly incapable, without substantial changes, of meeting the contracting entity’s needs and requirements as specified in the concession documents;

(b) an application must be considered not to be suitable if—

(i) the applicant concerned is to be or may be excluded under regulation 40 (exclusion grounds) or does not meet the selection criteria set out by the contracting entity in accordance with regulation 41(1) to (3) (selection of and qualitative assessment of candidates);

(ii) the application includes tenders which are considered not to be suitable as described in sub-paragraph (a).

Concession contract award notice

34

(1) Not later than 48 days after the award of a concession contract, the contracting entity must submit for publication a concession contract award notice in accordance with regulation 35 (form and manner of publication of notices).

(2) A concession contract award notice for social and other specific services listed in Schedule 3 may be grouped for publication on a quarterly basis, in which case the contracting entity must submit the grouped notices for publication within 48 days of the end of each quarter.

(3) Subject to paragraph (4), a concession contract award notice must contain the information set out in Annex VII to the Concession Contracts Directive, or in the case of a concession contract for social and other specific services listed in Schedule 3, the information set out in Annex VIII to that Directive.

(4) In paragraph (3), the reference to Annex VII is a reference to that Annex, but as if—

(a) in paragraph (7), “Article 41” were a reference to regulation 44 of these Regulations,

(b) in paragraph (11)(c), “Article 8(3)” were a reference to regulation 8(6) and (7) of these Regulations,

(d) in paragraph (14), “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Concession Contracts (Scotland) Regulations 2016), and

(e) in paragraph (15), “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

Form and manner of publication of notices

35

(1) A notice required by regulation 33 (concession notice), 34 (concession contract award notice) and 46(3) (modification of contracts) to be submitted for publication in accordance with this regulation (and any corrigenda to a notice) must be submitted to the UK e-notification service for publication

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) If the the provider of the UK e-notification service has given the contracting entity confirmation of ... the publication of the information submitted, indicating the date of that publication, that confirmation shall constitute proof of publication.

(3) The notices referred to in regulations 33, 34 and 46(3) must not be published otherwise than on the UK e-notification service before they are published on that service unless publication on that service does not take place within 48 hours after the notice was submitted to that service.

(4) Notices published otherwise than on the UK e-notification service must not contain information other than that contained in the notices submitted to that service but must indicate the date of submission of the notice to that service.

(5) In these Regulations, “the UK e-notification service” has the meaning given by regulation 52(5) of the Public Contracts (Scotland) Regulations 2015.

(6) For the purposes of these Regulations, a notice of any description is submitted to the UK e-notification service if the information comprising the notice is entered in the portal in such form or manner as the portal may elicit it and in compliance with any specific instructions that are given within the portal about how the information, or any particular element of it, is to be entered.

Electronic availability of concession documents

36

(1) A contracting entity must, by means of the internet, offer unrestricted and full direct access free of charge to the concession documents from the date of the publication on the UK e-notification service of a concession notice or, where the concession notice does not include the invitation to submit tenders, from the date on which the invitation to submit tenders was sent.

(2) The text of the concession notice or of the invitation to submit tenders must specify the internet address at which the concession documents are accessible.

(3) Paragraph (4) applies if, in duly justified circumstances due to—

(a) exceptional security reasons;

(b) technical reasons; or

unrestricted and full direct access free of charge to certain concession documents cannot be offered by means of the internet.

(4) In those circumstances a contracting entity must indicate in the notice or the invitation to submit a tender that the concession documents concerned will be transmitted by means other than the internet and the time limit for the receipt of tenders shall be prolonged.

(5) Provided that it has been requested in good time, a contracting entity must supply to all applicants or tenderers taking part in the procurement for the award of a concession contract additional information relating to the concession documents not later than 6 days before the deadline fixed for the receipt of tenders.

Conflict of Interest

37

(1) A contracting entity must take appropriate measures to prevent, identify and remedy a conflict of interest arising in the conduct of the procurement for the award of a concession contract so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.

(2) The measures in relation to a conflict of interest must not go beyond what is strictly necessary to prevent a potential conflict of interest or eliminate an identified conflict of interest.

(3) Without prejudice to the generality thereof, reference to “conflicts of interest” in paragraph (1) includes any situation where a relevant staff member has, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement for the award of a concession contract.

(4) In paragraph (3), “relevant staff member” means a contracting entity staff member or staff member of a procurement service provider acting on behalf of the contracting entity, who is involved in the conduct of the procurement for the award of concession contract or may influence the outcome of that procurement.

CHAPTER 7 — PROCEDURAL GUARANTEES

Technical and functional requirements

38

(1) The technical specifications and functional requirements must—

(a) be set out in the concession contract procurement documents;

(b) lay down the characteristics required of any works or services that are the subject matter of the concession contract.

(2) The characteristics referred to in paragraph (1)(b) may include—

(a) quality levels;

(b) levels of environmental and climate performance;

(d) performance, safety or dimensions;

(e) terminology;

(f) symbols;

(g) testing and test methods;

(h) marking and labelling; or

(i) user instructions.

(3) Those characteristics may also refer to the specific process of production or provision of the requested works or services provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives.

(4) Subject to paragraph (5), unless justified by the subject-matter of the concession contract, technical and functional requirements must not refer to a specific make or source, or a particular process which characterises the products or services provided by a specific economic operator or to trade marks, patents, types or a specific production with the effect of favouring or eliminating certain undertakings or certain products.

(5) Reference of a kind referred to in paragraph (4) is permitted, on an exceptional basis, if a sufficiently precise and intelligible description of the subject-matter of the contract is not possible, in which case the reference shall be accompanied by the words “or equivalent”.

(6) A contracting entity must not reject a tender on the grounds that the works and services tendered for do not comply with the technical and functional requirements to which it has referred, once the tenderer proves in its tender, by any appropriate means, that the solutions it has proposed satisfy in an equivalent manner the technical and functional requirements.

Procedural guarantees

39

(1) A concession contract must be awarded on the basis of the award criteria, provided that all of the following conditions are fulfilled—

(a) the tender complies with any minimum requirements set by the contracting entity;

(b) the tenderer complies with the conditions for participation set out in regulation 41(1) to (3) (selection of and qualitative assessment of candidates); and

(c) the tenderer is not excluded from participating in the award procedure in accordance with regulation 40(1) to (9) (exclusion grounds), as read with regulation 40(14) to (18).

(2) The contracting entity may limit the number of candidates or tenderers to an appropriate level, on condition that this is done in a transparent manner and on the basis of objective criteria.

(3) The number of candidates or tenderers invited must be sufficient to ensure genuine competition.

(4) The contracting entity must communicate the following to all participants—

(a) the description of the envisaged organisation of the procedure and an indicative completion deadline; and

(b) any modification to that procedure or completion deadline.

(5) To the extent that any modification referred to in paragraph (4)(b) concerns elements disclosed in the concession notice, the contracting entity must advertise it to all economic operators.

(6) The contracting entity must provide for appropriate recording of the stages of the procedure using the means it considers appropriate, subject to regulation 31(1) and (2) (confidentiality).

(7) The contracting entity may hold negotiations with candidates and tenderers but the subject-matter of the concession contract, the award criteria and the minimum requirements must not change during the course of any negotiation.

(8) In this regulation—

(a) “the award criteria” means the award criteria set out by the contracting entity in accordance with regulation 44 (concession contract award criteria);

(b) “minimum requirements” mean the conditions and characteristics (in particular any technical, physical, functional and legal conditions and characteristics) that any tender must meet or possess.

Exclusion grounds

40

(1) A contracting authority or utility referred to in regulation 5(1)(a) (meaning of “utility”) must exclude an economic operator from participation in a procurement for the award of a concession contract if the contracting authority or utility establishes that an economic operator or a person to whom paragraph (2) applies has been convicted of any of the following offences—

(a) the common law offence of conspiracy if that conspiracy relates to participation in a criminal organisation as defined in Article 2 of Council Framework Decision 2008/841/JHA³⁴ or an offence under sections 28 or 30 of the Criminal Justice and Licensing (Scotland) Act 2010³⁵;

(b) corruption within the meaning of section 1(2) of the Public Bodies Corrupt Practices Act 1889³⁶ or section 1 of the Prevention of Corruption Act 1906³⁷, where the offence relates to active corruption as defined in Article 3 of the Council Act of 26th May 1997³⁸ and Article 3(1) of Council Joint Action 98/742/JHA³⁹;

(c) bribery or corruption within the meaning of sections 68 and 69 of the Criminal Justice (Scotland) Act 2003⁴⁰, if the offence relates to active bribery or corruption;

(d) bribery within the meaning of sections 1 or 6 of the Bribery Act 2010⁴¹;

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

(f) any offence listed in—

(i) section 41 of the Counter-Terrorism Act 2008⁴²; or

(ii) Schedule 2 to that Act where the court has determined that there is a terrorist connection;

(g) money laundering within the meaning of sections 340(11) and 415 of the Proceeds of Crime Act 2002⁴³;

(h) an offence in connection with the proceeds of criminal conduct within the meaning of section 93A, 93B or 93C of the Criminal Justice Act 1988⁴⁴;

(i) any offence under Part 1 of the Human Trafficking and Exploitation (Scotland) Act 2015⁴⁵ or under any provision referred to in the Schedule to that Act;

(j) an offence in connection with the proceeds of drug trafficking within the meaning of section 49, 50 or 51 of the Drug Trafficking Act 1994⁴⁶;

(k) any other offence within the meaning of Article 38(4)(a), (b), (d), (e) or (f) of the Concessions Contracts Directive as defined by the national law of any EEA state.

(2) This regulation applies if the person convicted is a member of the administrative, management or supervisory body of the economic operator referred to in paragraph (1) or has powers of representation, decision or control in the economic operator.

(3) A contracting authority or utility referred to in regulation 5(1)(a) (meaning of “utility”) must exclude an economic operator from participation in a procurement if—

(a) subject to paragraphs (6) to (8), the contracting authority or utility referred to in regulation 5(1)(a) is aware that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions and this 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 it is established or in accordance with those of any of the jurisdictions of the United Kingdom; or

(b) the contracting authority or utility referred to in regulation 5(1)(a) is aware that the economic operator has committed an act prohibited under the Employment Relations Act 1999 (Blacklists) Regulations 2010⁴⁷ and the commission of such an act has been admitted by the economic operator or established by a judicial decision having final and binding effect.

(4) Subject to paragraph (5), a contracting entity may exclude an economic operator from participation in the procurement for the award of a concession contract if the contracting authority or utility 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.

(5) A utility other than one referred to in regulation 5(1)(a) may exclude an economic operator from participation in the procurement for an award of a concession contract if it is aware that the economic operator has been convicted of any offence in paragraph (1) or committed a prohibited act referred to in paragraph (3)(b).

(6) A contracting entity may not exclude an economic operator pursuant to paragraphs (3)(a) or (4) if—

(a) 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; or

(b) the obligation to make repayment otherwise ceases.

(7) A contracting entity may disregard any of the prohibitions imposed by paragraphs (1) to (3), on an exceptional basis, for overriding reasons relating to the public interest such as public health or protection of the environment.

(8) A contracting entity may also disregard the prohibition imposed by paragraph (3)(a) if an exclusion would be clearly disproportionate, in particular—

(a) if only minor amounts of taxes or social security contributions are unpaid; or

(b) if 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 (6) before expiration of the deadline for requesting participation or the deadline for submitting its tender.

(9) A contracting entity may exclude an economic operator from participation in a procurement for the award of a concession contract if—

(a) the contracting entity can demonstrate by any appropriate means a violation by the economic operator of applicable obligations referred to in the fields of environmental, social and labour law established by ... national law, collective agreements or , subject to paragraphs (19) and (20), by the international environmental, social and labour law provisions listed in Schedule 4 to these Regulations;

(b) the economic operator is bankrupt or is the subject of insolvency or winding-up proceedings, if its assets are being administered by a liquidator or by the court, if it is in an arrangement with creditors, if its business activities are suspended or it is in any analogous situation arising from a similar procedure under national laws and regulations to which the economic operator may be subject;

(c) the contracting entity can demonstrate by any appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable;

(d) the contracting entity has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;

(e) a conflict of interest within the meaning of regulation 37 (conflict of interest) cannot be effectively remedied by other less intrusive measures;

(f) 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 (Scotland) Regulations 2015 or the Utilities Contracts (Scotland) Regulations 2016 which led to early termination of that prior contract, damages or other comparable sanctions;

(g) if 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 entity in accordance with regulation 41 (1) to (3) (selection of and qualitative assessment of candidates); or

(ii) the economic operator has withheld such information or is unable to submit the supporting documents required;

(h) the economic operator—

(i) has or has sought to unduly influence the decision-making process of the contracting entity;

(ii) has or has sought to obtain confidential information that may confer upon it undue advantages in the procurement for the award of a concession contract; or

(iii) has 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 which is a defence and security contract, if 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.

(10) A contracting authority and utility referred to in regulation 5(1)(a) (meaning of “utility”)—

(a) must exclude an economic operator if it becomes aware, at any time during the procurement for the award of a concession contract, 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 (1) to (3);

(b) may exclude an economic operator if it becomes aware, at any time during a procurement for the award of a concession contract, that the economic operator is, in view of acts committed or omitted either before or during the procurement, in one of the situations referred to in paragraphs (4) and (9).

(11) A utility other than one referred to in regulation 5(1)(a) (meaning of “utility”) may exclude an economic operator if it becomes aware, at any time during a procurement for the award of a concession contract, that the economic operator is, in view of acts committed or omitted either before or during the procurement, in one of the situations referred to in paragraphs (1) to (4) and (9).

(12) In the cases referred to in paragraph (1) and subject to paragraph (7), the period during which the economic operator must be excluded is 5 years from the date of the conviction by final judgement.

(13) In the cases referred to in paragraphs (3)(b) and (9) and subject to paragraph (15), the period during which the economic operator may be excluded is 3 years from the date of the relevant event.

(14) Any economic operator that is in one of the situations referred to in paragraph (1), (3)(b) or (9) may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion.

(15) If the contracting entity is satisfied that the evidence proves that the measures are sufficient for the purpose referred to in paragraph (14), the contracting entity must not exclude the economic operator from the procurement of the award of a concession contract.

(16) For that purpose, the economic operator must 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.

(17) The measures taken by the economic operator must be evaluated by the contracting entity taking into account the gravity and particular circumstances of the criminal offence or misconduct.

(18) If the contracting entity considers that the measures are insufficient, the contracting entity must give the economic operator a statement of the reasons for that decision.

(19) Where—

(a) the United Kingdom has ratified an international agreement establishing obligations in any of the fields mentioned in paragraph (9)(a), and

(b) the agreement is not already listed,

the Scottish Ministers may make regulations providing that paragraph (9)(a) is to have effect as if the agreement were listed.

(20) Where the United Kingdom has ceased to ratify an international agreement that is already listed, the Scottish Ministers may make regulations providing that paragraph (9)(a) is to have effect as if the agreement were not listed.

(21) In paragraphs (19) and (20)—

(a) “listed” means listed as described in paragraph (9)(a), and

(b) where paragraph (9)(a) already has effect as if an agreement were listed, “already listed” includes that agreement.

Selection of and qualitative assessment of candidates

41

(1) A contracting entity must 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 must be non-discriminatory and proportionate to the subject-matter of the concession contract.

(3) The conditions for participation must 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.

(4) For the purpose of meeting the conditions for participation, an economic operator may, if 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) If an economic operator wants to rely on the capacities of other entities, it must prove to the contracting entity 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 entity 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 referred to in regulation 29 (economic operators) may rely on the capacities of participants in the group or of other entities, and paragraphs (4) to (6) apply in relation to such a group in the same way that they apply in relation to an economic operator.

Time limits for receipt of applications and tenders for the concession contract

42

(1) When fixing the time limit for the receipt of applications or tenders, a contracting entity must take account of the complexity of the concession contract and the time required for drawing up a tender or application, without prejudice to the minimum time limits set out in this regulation.

(2) If an application or tender can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the concession documents, the time limit for the receipt of an application for the concession contract or for the receipt of a tender must be fixed so that any economic operator concerned is aware of all the information needed to produce an application or tender and in any event must be longer than the minimum time limits set out in paragraphs (3) and (4).

(3) The minimum time limit for the receipt of applications (whether or not including tenders for the concession contract) must be 30 days from the date on which the concession notice was submitted for publication in accordance with regulation 35 (form and manner of publication of notices).

(4) If the procurement takes place in successive stages the minimum time limit for the receipt of initial tenders must be 22 days from the date on which the invitation to tender is sent.

(5) The time limits for receipt of tenders may be reduced by 5 days if the contracting entity allows the submission of tenders by electronic means in accordance with regulation 32 (rules applicable to communication).

Informing candidates and tenderers

43

(1) A contracting entity must as soon as possible after reaching a decision concerning the award of a concession contract inform each candidate and tenderer of the decision reached, including—

(a) the name of the successful tenderer; and

(b) the grounds for any decision—

(i) to reject its application or tender;

(ii) not to award a contract for which there has been publication of a concession notice; or

(iii) to recommence the procurement.

(2) On request from the party concerned, the contracting entity must as quickly as possible, and in any event within 15 days from receipt of a request in writing, inform any tenderers that have submitted an admissible tender of the characteristics and relative advantages of the tender selected.

(3) The contracting entity may decide to withhold certain information referred to in this regulation if the release of such information—

(a) would impede law enforcement or would otherwise be contrary to the public interest;

(b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or

Concession contract award criteria

44

(1) A contracting entity must award a concession contract on the basis of objective criteria which comply with the principles set out in regulation 28 (principle of equal treatment, non-discrimination and transparency) and which ensure that a tender is assessed in conditions of effective competition so as to identify an overall economic advantage for the contracting entity (“the award criteria”).

(2) The award criteria—

(a) must be linked to the subject-matter of the concession contract;

(b) must not confer an unrestricted freedom of choice on the contracting entity; and

(3) The award criteria must be accompanied by requirements which allow the information provided by the tenderers to be effectively verified.

(4) The contracting entity must verify whether a tender properly meets the award criteria.

(5) The contracting entity must list the award criteria in descending order of importance.

(6) If the contracting entity receives a tender which proposes an innovative solution with an exceptional level of functional performance which could not have been foreseen by a diligent contracting entity, the contracting entity may, exceptionally, modify the ranking order of the award criteria to take into account that innovative solution.

(7) If paragraph (6) applies, the contracting entity must—

(a) inform all tenderers about the modification of the order of importance and issue a new invitation to submit tenders within the minimum time limit referred to in regulation 42(4) (time limits for receipt of applications and tenders);

(b) if the award criteria was published either in the concession notice or at the same time, publish a new concession notice including the minimum time limit referred to in regulation 42(3).

(8) The contracting entity must ensure that a modification of the ranking order referred to in paragraph (6) does not result in discrimination.

(9) In this regulation, “innovation” means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations, including with the purpose of helping to solve societal challenges or to support ... sustainable and inclusive growth.

PART 4 — RULES ON THE PERFORMANCE OF CONCESSION CONTRACTS

Subcontracting

45

(1) In the concession documents, the contracting entity may ask the tenderer to indicate in its tender any share of the concession contract that it may intend to subcontract to a third party and information about any proposed sub-contractor including their name and contact details.

(2) Paragraph (1) is without prejudice to the concessionaire’s liability under the main concession contract.

(3) This paragraph applies in the case of—

(a) a works concession contract; and

(b) a services concession contract including services to be provided at a facility under the oversight of the contracting entity.

(4) If paragraph (3) applies, the contracting entity must require the main contractor to notify it, at the latest when the performance of the concession contract commences of the name, contact details and legal representatives of its subcontractors, involved in such works or services, in so far as known at the time.

(5) The contracting entity must require the concessionaire to notify it of—

(a) any changes to the information notified under paragraph (4) during the course of the concession contract; and

(b) the name, contact details and legal representative of any new subcontractors which it subsequently involves in such works or services.

(6) Paragraphs (4) and (5) do not apply to suppliers.

(7) A contracting entity may require a contractor to provide information of the kind referred to paragraphs (4) and (5) in respect to any one or more of the following:—

(a) services concession contracts (other than those concerning services to be provided at the facilities under the oversight of the contracting entity) or suppliers involved in works concession contracts or services concession contracts;

(b) subcontractors of the concessionaire’s subcontractors or subcontractors further down the subcontracting chain.

(8) A contracting entity may verify whether there are grounds for exclusion of subcontractors under regulation 40 (exclusion grounds).

(9) In such cases, the contracting entity—

(a) must require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are compulsory grounds for exclusion; and

(b) may require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.

Modification of concession contract during contract term

46

(1) A concession contract may be modified without procurement for a new concession contract in the following cases—

(a) if the initial concession document provides for the modification, irrespective of its monetary value, in clear, precise and unequivocal review clauses, which may include price revision clauses or options, provided that such clauses—

(i) state the scope and nature of possible modifications or options as well as the conditions under which they may be used; and

(ii) do not provide for modifications or options that would alter the overall nature of the concession contract;

(b) to provide for additional works or services by the original concessionaire that have become necessary and were not included in the initial procurement for a concession contract, if a change of concessionaire—

(i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and

(ii) would cause significant inconvenience or substantial duplication of costs for the contracting entity,

provided that any increase in price does not exceed 50% of the initial concession contract value;

(i) circumstances which a diligent contracting entity could not have foreseen brought about the need for modification;

(ii) the modification does not alter the overall nature of the concession contract;

(iii) in the case of a concession contract awarded by a contracting authority for the purposes of pursing an activity other than one listed in Schedule 2 any increase in value does not exceed 50% of the initial concession contract value;

(d) if a new concessionaire replaces one to which the contracting entity had initially awarded the concession contract—

(i) as a result of an unequivocal review clause or option in conformity with sub-paragraph (a); or

(ii) in the event of complete or partial succession into the position of the initial concessionaire, following corporate restructuring, including takeover, merger, acquisition or insolvency, by another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the concession contract and is not aimed at circumventing the application of these Regulations;

(iii) in the event that the contracting entity assumes the main concessionaire’s obligations towards its subcontractors;

(e) if a modification, irrespective of value, is not substantial (within the meaning of paragraph (8)); or

(f) if paragraph (5) applies.

(2) If several successive modifications are made—

(a) the limitations imposed by the proviso at the end of paragraph (1)(b) and by paragraph (1)(c)(iii) apply to the value of each modification; and

(b) such successive modifications must not be aimed at circumventing these Regulations.

(3) A contracting entity which has modified a concession contract in either of the cases described in paragraph (1)(b) and (c) must submit a notice to that effect, in accordance with regulation 35 (form and manner of publication of notices) for publication.

(4) Such a notice must contain the information set out in Annex XI to the Concession Contracts Directive , but as if—

(a) paragraph 9 (financing by EU funds) were omitted,

(b) in paragraph 11, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Concession Contracts (Scotland) Regulations 2016), and

(c) in paragraph 12, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of theseRegulations.

(5) This paragraph applies if the value of the modification is below both of the following values—

(a) the relevant threshold mentioned in regulation 8 (thresholds); and

(b) 10 % of the initial concession contract value,

provided that the modification does not alter the overall nature of the concession contract.

(6) For the purposes of paragraph (5), if several successive modifications are made, the value must be the net cumulative value of the successive modifications.

(7) For the purpose of the calculation of the values mentioned in paragraphs (1)(b) and (c) and (5)(b), the updated value must be the reference value when the concession contract includes an indexation clause but if the concession contract does not contain an indexation clause, the updated value must be calculated taking into account the average inflation in the United Kingdom.

(8) A modification of a concession contract during its term must be considered substantial for the purposes of paragraph (1)(e) if one or more of the following conditions is met—

(a) the modification renders the concession contract materially different in character from the one initially concluded;

(b) the modification introduces conditions which, had such conditions been part of the initial procurement procedure, would have—

(i) allowed for the admission of candidates other than those initially selected;

(ii) allowed for the acceptance of a tender other than that originally accepted; or

(iii) attracted additional participants in the procurement procedure;

(c) the modification changes the economic balance of the concession contract in favour of the concessionaire in a manner which was not provided for in the initial concession contract;

(d) the modification extends the scope of the concession contract considerably;

(e) a new concessionaire replaces one to which the contracting entity had initially awarded the concession contract in cases other than those provided for in paragraph (1)(d).

(9) A new procurement for the award of a concession contract in accordance with this Part is required for modifications of the provisions of a concession contract during its term other than those provided for in this regulation.

Termination of concession contract

47

(1) A contracting entity must ensure that every concession contract which is awarded contains provision enabling the contracting entity to terminate the concession if—

(a) the concession contract has been subject to a substantial modification which would have required a procurement for the award of a concession contract in accordance with regulation 46(9) (modification of concession contracts during contract term); or

(b) the concessionaire has, at the time of contract award, been in one of the situations referred to in regulation 40(1) (exclusion grounds) including as a result of the application of regulation 40(2) and should therefore have been excluded from the procurement for the award of a concession contract ...

(2) The provision may address the basis on which the power is to be exercisable in those circumstances, for example by providing for notice of termination to be given and by addressing consequential matters that will or might arise from the termination.

(3) To the extent that a concession contract does not contain provision enabling the contracting entity to terminate the concession contract on any of the grounds mentioned in paragraph (1), a power for the contracting entity to do so on giving notice to the concessionaire is an implied term of that concession contract.

(4) A contracting entity must not terminate a concession contract in a manner that circumvents the obligations under these Regulations.

PART 5 — REMEDIES

CHAPTER 8 — FACILITATION OF REMEDIES

Scope of Chapter 8

48

This Chapter applies to procurement for the award of a concession contract falling within the scope of these Regulations.

Notice of a decision to award a concession contract

49

(1) Subject to paragraphs (5) and (6), a contracting entity must send to each candidate and tenderer a notice communicating its decision to award the concession contract.

(2) If it is to be sent to a tenderer, the notice referred to in paragraph (1) must include—

(a) the criteria for the award of the concession contract;

(b) a summary of the reasons for the decision, including the characteristics and relative advantages of the successful tender, the score (if any) obtained by—

(i) the tenderer which is to receive the notice; and

(ii) the tenderer to be awarded the concession contract;

and anything required by paragraph (3);

(d) a precise statement of either—

(i) when, in accordance with regulation 50 (standstill period), the standstill period is expected to end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or

(ii) the date before which the contracting entity will not, in conformity with regulation 50 enter into the concession contract .

(3) The reasons referred to in paragraph (2)(b) must include the reason for any decision by the contracting entity that the economic operator did not meet the technical and functional requirements in an equivalent manner as mentioned in regulation 38(6) (technical and functional requirements).

(4) If it is to be sent to a candidate, the notice referred to in paragraph (1) must include—

(a) a summary of the reasons why the candidate was unsuccessful; and

(b) the information mentioned in paragraph (2), but as if the words “and relative advantages” were omitted from sub-paragraph (b).

(5) A contracting entity need not comply with paragraph (1) in any of the following cases—

(a) if the concession contract is permitted by these Regulations to be awarded without prior publication of a concession notice;

(b) if the only tenderer is the one who is to be awarded the concession contract, and there is no candidate.

(6) A contracting entity may withhold any information to be provided in accordance with the preceding requirements of this regulation if the release of such information—

(a) would impede law enforcement or would otherwise be contrary to the public interest;

(b) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or

(7) In this regulation—

(a) “candidate” means a candidate, as defined in regulation 2(1), which—

(i) is not a tenderer, and

(ii) has not been informed of the rejection of its application and the reasons for it;

(b) “tenderer” means a tenderer, as defined in regulation 2(1), which has not been definitively excluded.

(8) For the purposes of paragraph (7)(b), an exclusion is definitive if, and only if, the tenderer has been notified of the exclusion and either—

(a) the exclusion has been held to be lawful in proceedings under Chapter 9; or

(b) the time limit for starting such proceedings has expired even on the assumption that the Court would have granted the maximum extension permitted by regulation 52(4) and (5) (enforcement of duties through the Courts).

Standstill period

50

(1) A contracting entity must allow a period of at least the relevant standstill period to elapse between the date of despatch of the notice referred to in regulation 49(1) (notice of a decision to award a concession contract) and the date on which that contracting entity enters into the concession contract.

(2) Paragraph (1) does not apply if—

(a) the concession contract is exempt from the requirement for prior publication of a concession notice;

(b) there are no tenderers concerned or candidates concerned;

(3) If notice is sent to all economic operators by facsimile or electronic means, the standstill period is a period of 10 days ending at midnight at the end of the 10th day after that on which the last notice is sent.

(4) If notice is sent to any economic operators only by other means, the standstill period is a period of 15 days ending at midnight at the end of the 15th day after that on which the last notice is sent.

CHAPTER 9 — APPLICATIONS TO THE COURT

Duty owed to economic operators

51

(1) The obligation on a contracting entity to comply with the provisions of these Regulations (except where otherwise specified) ... is a duty owed to an economic operator from the United Kingdom or Gibraltar.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement of duties through the Courts

52

(1) A breach of the duty owed in accordance with regulation 51 (duty owed to economic operators) is actionable by any economic operator which, in consequence of the breach suffers, or risks suffering, loss or damage.

(2) Proceedings by an economic operator in respect of a breach of duty referred to in paragraph (1) must be brought in the Sheriff Court or the Court of Session.

(3) Proceedings under this regulation may not be brought unless—

(a) the economic operator bringing the proceedings has informed the contracting entity of—

(i) the breach or apprehended breach of the duty owed to it in accordance with regulation 51 (duty owed to economic operators); and

(ii) of its intention to bring proceedings under this Part in respect of that breach or apprehended breach; and

(b) the proceedings are brought in accordance with paragraph (4).

(4) For the purpose of paragraph (3)(b), proceedings must be brought—

(a) in the case of proceedings seeking an ineffectiveness order (as defined in regulation 55(ineffectiveness orders))—

(i) if paragraph (5) applies, within 30 days from the relevant date referred to in that paragraph; and

(ii) in any other case, within 6 months from the date of the concession contract being entered into; and

(b) in any other case, within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen unless the court considers that there is a good reason for extending the period within which proceedings may be brought, in which case the court may extend that period up to a maximum of 3 months from that date.

(5) For the purpose of paragraph (4)(a)(i), this paragraph applies if—

(a) the contracting entity has submitted a concession contract award notice to the UK e-notification service in accordance with regulation 35 (form and manner of publication of notices), including reasons for its decision to enter into the concession contract without prior publication of a concession notice, in which case the relevant date is the date of publication of the notice on the UK e-notification service; or

(b) the contracting entity has by notice in writing informed all tenderers concerned and all candidates concerned (if any) of its decision in relation to the award of the concession contract and the notice includes the information referred to in regulation 49(2)(b) or (4)(a) (notice of decision to award a concession contract) as the case may be, in which case the relevant date is the date of sending of the notice.

Automatic suspension of authority power to proceed with concession contract award

53

Without prejudice to the application of any relevant standstill period, if proceedings under this Part are served on a contracting entity or concessionaire in relation to a concession contract that has not been entered into, the contracting entity must not enter into the concession contract unless—

(a) the proceedings are determined, discontinued or disposed of; or

(b) the court, by interim order, brings to an end the prohibition.

Powers and duties of the court

54

(1) Subject to paragraphs (3) and (7), but otherwise without prejudice to any other powers of the court, in proceedings brought under this Part the court—

(a) may by interim order suspend—

(i) the procedure leading to the award of a concession contract; and

(ii) the implementation of any decision or action taken by the contracting entity in the course of following a procedure referred to in paragraph (i); and

(b) if satisfied that a decision or action taken by a contracting entity was in breach of the duty owed under regulation 51 (duty owed to economic operators), may—

(i) order the setting aside of that decision or action;

(ii) order the contracting entity to amend any document; and

(iii) award damages to an economic operator which has suffered loss or damage as a consequence of the breach.

(2) In any interim proceedings under this Part the court may decide not to grant an interim order when the negative consequences of such an order are likely to outweigh the benefits, having regard to the following considerations—

(a) that decisions taken by a contracting entity must be reviewed effectively and, in particular, as rapidly as possible;

(b) the probable consequences of an interim order for all interests likely to be harmed; and

(3) If the court is satisfied that regulation 55(7)(a) (ineffectiveness orders) applies but the second ground for ineffectiveness is not otherwise met, the court must, without prejudice to the other powers of the court, order—

(a) the payment by the contracting entity of a financial penalty; or

(b) the shortening of the duration of the concession contract awarded following the procurement in relation to which the breach occurred.

(4) In determining what order to make under paragraph (3) the court must—

(a) ensure that the order is effective, proportionate and dissuasive; and

(b) have regard to all relevant factors including—

(i) the seriousness of the breach; and

(ii) the behaviour of the contracting entity.

(5) If the court makes an order under paragraph (3)(b) the court must, without prejudice to the other powers of the court, make such other order as the court considers appropriate to address the consequences of the shortening of the duration of the concession contract or on the rights and obligations of the parties to the concession contract.

(6) Before making an order under paragraph (5), the court must have regard to any terms of the concession contract or relating to the rights and obligations of the parties should the duration of the concession contract be shortened.

(7) Subject to paragraph (3) and regulation 55 (ineffectiveness orders) in proceedings under this Part the court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed under regulation 51 (duty owed to economic operators) if the concession contract in relation to which the breach occurred has been entered into.

(8) Sections 21 and 42 of the Crown Proceedings Act 1947⁴⁸ do not apply in proceedings brought under this Part against the Crown.

Ineffectiveness orders

55

(1) Without prejudice to all rights and obligations in respect of the period leading up to the date of the order, an ineffectiveness order made in relation to a concession contract renders unenforceable all rights and obligations directly arising from the concession contract in respect of the period commencing on the date of the order.

(2) Subject to any order made under regulation 56(1)(b) (powers of the court), obligations rendered unenforceable by an ineffectiveness order made in relation to a concession contract must not be performed by the parties to the concession contract.

(3) Subject to paragraph (4) and regulation 57 (general interest grounds for not making a declaration of ineffectiveness), the court must make an ineffectiveness order if—

(a) the first ground for ineffectiveness referred to in paragraph (5) applies; or

(b) the second ground for ineffectiveness referred to in paragraph (7) applies.

(4) In proceedings under this Part to which regulation 52(4)(b)(powers and duties of the court) applies, the court does not have power to make an ineffectiveness order if the proceedings would be incompetent if the regulation 52(4)(a) applied to the proceedings.

First ground for ineffectiveness5The first ground for ineffectiveness applies if the contracting entity has entered into a concession contract without prior publication of a concession notice on the UK e-notification service in circumstances where the concession contract was not exempt from the requirement for prior publication of a concession notice.6The first ground for ineffectiveness does not apply if—athe contracting authority submitted to the UK e-notification service for publication a voluntary ex ante transparency notice expressing its intention to enter into the contract or to conclude the framework agreement and containing—ithe name and contact details of the contracting authority,iia description of the object of the contract or framework agreement,iiia justification of the decision of the contracting authority to award the contract or conclude the framework agreement without prior publication of a contract notice,ivthe name and contact details of the economic operator to be awarded the contract or to become party to the framework agreement, andvany other information which the contracting authority considered useful, andbthe contracting entity allowed a period of at least 10 days to elapse between the date of publication on the UK e-notification service of the notice referred to in sub-paragraph (a) and the date on which the contracting entity entered into the concession contract.

Second ground for ineffectiveness7The second ground for ineffectiveness applies if all of the following apply—athe contracting entity has breached regulation 49(1) (notice of decision to award a concession contract), 50(1) (standstill period) or 53 (automatic suspension of authority power to proceed with concession contract award);bthe contracting entity’s breach referred to in sub-paragraph (a) prevented the economic operator from bringing proceedings or obtaining a remedy before the concession contract was entered into;cin awarding the concession contract there has been another breach of the duty owed to the economic operator under these Regulations, other than a breach of regulations 49(1) (notice of decision to award a concession contract), 51(1) (standstill period) or this Part; anddthe contracting entity’s breach referred to in sub-paragraph (c) has affected the chances of the economic operator bringing proceedings under this Part to obtain the concession contract.

Powers of the court

56

(1) If an ineffectiveness order is made, the court must, without prejudice to the other powers of the court—

(a) order the payment by the contracting entity of a financial penalty; and

(b) make such other order as the court considers appropriate to address the consequences of the ineffectiveness order on the rights and obligations of the parties to the concession contract.

(2) In the case of an order made under paragraph (1)(a), the court must have regard to the extent to which the concession contract will remain in effect in respect of the period leading up to the date of the ineffectiveness order.

(3) Before making an order under paragraph (1)(b), the court must have regard to any terms of the concession contract or relating to the rights and obligations of the parties should an ineffectiveness order be made in relation to the concession contract.

General interest grounds for not making a declaration of ineffectiveness

57

(1) The court may decline to make an ineffectiveness order if the court is satisfied that overriding reasons relating to a general interest require that the enforceability of the rights and obligations arising from the concession contract should be maintained.

(2) For the purposes of paragraph (1)—

(a) economic interests directly linked to the concession contract do not constitute overriding reasons relating to a general interest; and

(b) economic interests in the effectiveness of the concession contract may only be considered as overriding reasons relating to a general interest in exceptional circumstances where ineffectiveness would lead to disproportionate consequences.

(3) For the purposes of paragraph (2)(a), economic interests directly linked to the concession contract include the costs—

(a) resulting from the delay in the performance of the concession contract;

(b) resulting from the commencement of a new procurement;

(d) of legal obligations resulting from an ineffectiveness order.

Other orders

58

(1) If the court declines to make an ineffectiveness order under regulation 57 (general interest grounds for not making a declaration of ineffectiveness), the court must, without prejudice to the other powers of the court, order—

(a) the payment by the contracting entity of a financial penalty; or

(b) the shortening of the duration of the concession contract.

(2) In determining what order to make under paragraph (1)(a), regulation 54(4) applies (powers and duties of the court).

(3) Regulation 54(5) and (6) (powers and duties of the court) applies to an order made under paragraph (1)(b) as it applies to an order made under regulation 54(3)(b).

Financial penalties

59

(1) Subject to paragraph (2), if a financial penalty is ordered to be paid under this Part—

(a) the order must state that the financial penalty must be paid to the Scottish Ministers; and

(b) the clerk of the court must send an extract of the decree (without charge) to the Scottish Ministers.

(2) Paragraph (1) does not apply to any financial penalty ordered to be paid by the Scottish Ministers or an office in the Scottish Administration which is not a ministerial office.

(3) The Scottish Ministers must pay into the Scottish Consolidated Fund any financial penalty—

(a) ordered to be paid by them under this Part; or

(b) recovered by them under paragraph (1).

(4) An office in the Scottish Administration which is not a ministerial office must pay any financial penalty ordered to be paid by them under this Part into the Scottish Consolidated Fund.

(5) In this regulation, “an office in the Scottish Administration which is not a ministerial office” is construed in accordance with section 126(8) of the Scotland Act 1998⁴⁹.

PART 6 — REPORTS

Reporting requirements

60

Contracting entities must send to the Scottish Ministers a report containing such information as the Scottish Ministers may from time to time request in respect of concession contracts within the scope of these Regulations for the purpose of enabling the Scottish Ministers to provide the European Commission with information.

Review of these Regulations

61

(1) The Scottish Ministers must from time to time—

(a) carry out a review of these Regulations;

(b) set out the conclusions of the review in a report; and

(2) In carrying out the review, the Scottish Ministers must, so far as is reasonable, have regard to how the Concession Contracts Directive is implemented in other member States.

(3) The report must in particular—

(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before 18th April 2021.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding 5 years.

PART 7 — TRANSITIONAL, SAVINGS AND TRANSITORY PROVISIONS

Interpretation of Part 7

62

In this Part, “the 2012 Regulations” means the Public Contracts (Scotland) Regulations 2012⁵⁰.

Transitional provision and saving where procurement was commenced before 18th April 2016

63

(1) Nothing in these Regulations, except regulation 46 (modification of contracts during contract term) and 47(1)(a), (2) and (3) (termination of concession contract) affects a procurement for the award of a contract commenced before 18th April 2016.

(2) Procurement for the award of a concession contract (except a services concession contract) commenced before 18th April 2016 will continue to be subject to the application of the 2012 Regulations as if those Regulations had not been revoked.

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