The Concession Contracts (Scotland) Regulations 2016

• (3) For the purposes of paragraph (1), a concession contract award procedure has been commenced before 18th April 2016 if, before that date—

• (a) a contract notice has been sent to the Official Journal in accordance with the 2012 Regulations in order to invite offers or requests to be selected to tender for or to negotiate in respect of a proposed concession contract;

• (b) the contracting entity has published any form of advertisement seeking offers or expressions of interest in a proposed concession contract; or

• (c) the contracting entity has contacted any economic operator in order to—

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

• (ii) respond to an unsolicited expression of interest or offer received from that economic operator in relation to a proposed concession contract.

Transitory provision prior to full commencement of regulation 32(1) to (7)

64

• (1) During the period beginning on 18th April 2016 and ending immediately before 18th April 2017, a central purchasing body may choose between the following means of communication for the purposes mentioned in paragraph (3)—

• (a) electronic means in accordance with regulation 32 (rules applicable to communication);

• (b) post or other suitable carrier;

• (c) fax;

• (d) a combination of those means.

• (2) During the period beginning on 18th April 2016 and ending immediately before 18th October 2018, a contracting entity may choose between the following means of communication for the purposes mentioned in paragraph (3)—

• (a) electronic means in accordance with regulation 32 (rules applicable to communication);

• (b) post or other suitable carrier;

• (c) fax;

• (d) a combination of those means.

• (3) The choices referred to in paragraphs (1) and (2) are available for all communication and information exchange in respect of which both the following criteria are met—

• (a) the use of electronic means would, in accordance with regulation 32(1) to (7), have been required if those provisions had been in force;

• (b) the use of electronic means is not required by any provision of these Regulations other than regulation 32(1).

SCHEDULE 1 — ACTIVITIES CONSTITUTING WORKS

In this Schedule, ‘NACE Rev.1’ has the same meaning as in Council Regulation (EEC) No 3037/90 on the statistical classification of economic activities in the European Community⁵¹ as that Regulation had effect in EU law immediately before IP completion day, and numerical references in the columns relating to the NACE Rev.1 relate to the Annex to that Regulation. In the event of any difference of interpretation between the CPV and the NACE Rev.1, the CPV nomenclature shall apply.

NACE Rev. 1	NACE Rev. 1	NACE Rev. 1	NACE Rev. 1	NACE Rev. 1	CPV Code
SECTION F	SECTION F	SECTION F	CONSTRUCTION	CONSTRUCTION	CPV Code
Division	Group	Class	Subject	Notes	CPV Code
45			Construction	This division includes:construction of new buildings and works, restoring and common repairs.	45000000
	45.1		Site preparation		45100000
		45.11	Demolition and wrecking of buildings; earth moving	This class includes:demolition of buildings and other structures,clearing of building sites,earth moving: excavation, landfill, levelling and grading of construction sites, trench digging, rock removal, blasting, etc.site preparation for mining,overburden removal and other development and preparation of mineral properties and sites.This class also includes:building site drainage.drainage of agricultural or forestry land.	45110000
		45.12	Test drilling and boring	This class includes:test drilling, test boring and core sampling for construction, geophysical, geological or similar purposes.This class excludes:drilling of production oil or gas wells, see 11.20.water well drilling, see 45.25,shaft sinking, see 45.25,oil and gas field exploration, geophysical, geological and seismic surveying, see 74.20.	45120000
	45.2		Building of complete constructions or parts thereof; civil engineering		45200000
		45.21	General construction of buildings and civil engineering works	This class includes:construction of all types of buildings construction of civil engineering constructions,bridges, including those for elevated highways, viaducts, tunnels and subways,long-distance pipelines, communication and power lines,urban pipelines, urban communication and power lines,ancillary urban works,assembly and erection of prefabricated constructions on the site.This class excludes:service activities incidental to oil and gas extraction, see 11.20,erection of complete prefabricated constructions from self-manufactured parts not of concrete, see divisions 20, 26 and 28,construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations, see 45.23,building installation, see 45.3,building completion, see 45.4,architectural and engineering activities, see 74.20,project management for construction, see 74.20.	45210000Except:—4521331645220000 4523100045232000
		45.22	Erection of roof covering and frames	This class includes:erection of roofs,roof covering,waterproofing.	45261000
		45.23	Construction of highways, roads, airfields and sport facilities	This class includes:construction of highways, streets, roads, other vehicular and pedestrian ways,construction of railways,construction of airfield runways,construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations,painting of markings on road surfaces and car parks.This class excludes:preliminary earth moving, see 45.11.	45212212 and DA0345230000except:452310004523200045234115
		45.24	Construction of water projects	This class includes:construction of:waterways, harbour and river works, pleasure ports (marinas), locks etc.;dams and dykes,dredging,subsurface work.	45240000
		45.25	Other construction work involving special trades	This class includes:construction activities specialising in one aspect common to different kinds of structures, requiring specialised skill or equipment,construction of foundations, including pile driving,water well drilling and construction, shaft sinking,erection of non-self- manufactured steel elements,steel bending,bricklaying and stone setting,scaffolds and work platform erecting and dismantling, including renting of scaffolds and work platforms,erection of chimneys and industrial ovens.This class excludes:renting of scaffolds without erection and dismantling, see 71.32	4525000045262000
	45.3		Building installation		45300000
		45.31	Installation of electrical wiring and fittings	This class includes: installation in buildings or other construction projects of:electrical wiring and fittings,telecommunications systems,electrical heating systems,residential antennas and aerials,fire alarms,burglar alarm systems,lifts and escalators,lightning conductors, etc.	4521331645310000Except: —45316000
		45.32	Insulation work activities	This class includes:installation in buildings or other construction projects of thermal, sound or vibration insulation.This class excludes:waterproofing, see 45.22.	45320000
		45.33	Plumbing	This class includes:installation in buildings or other construction projects of:plumbing and sanitary equipment,gas fittings,heating, ventilation, refrigeration or air- conditioning equipment and ducts,sprinkler systems This class excludes:installation of electrical heating systems, see 45.31.	45330000
		45.34	Other building installation	This class includes:installation of illumination and signalling systems for roads, railways, airports and harbours,installation in buildings or other construction projects of fittings and fixtures n.e.c.	452341154531600045340000
	45.4		Building completion		45400000
		45.41	Plastering	This class includes:application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials.	45410000
		45.42	Joinery installation	This class includes:installation of not self-manufactured doors, windows, door and window frames, fitted kitchens, staircases, shop fittings and the like, of wood or other materials,interior completion such as ceilings, wooden wall coverings, movable partitions, etc.This class excludes:laying of parquet and other wood floor coverings, see 45.43	45420000
		45.43	Floor and wall covering	This class includes:laying, tiling, hanging or fitting in buildings or other construction projects of:ceramic, concrete or cut stone wall or floor tiles,parquet and other wood floor coverings carpets and linoleum floor coverings,including of rubber or plastic,terrazzo, marble, granite or slate floor or wall coverings,wallpaper.	45430000
		45.44	Painting and glazing	This class includes:interior and exterior painting of buildings,painting of civil engineering structures,installation of glass, mirrors, etc.This class excludes:installation of windows, see 45.42.	45440000
		45.45	Other building completion	This class includes:installation of private swimming pools,steam cleaning, sand blasting and similar activities for building exteriors,other building completion and finishing work n.e.c.This class excludes:interior cleaning of buildings and other structures see 74.70.	45212212 and DA0445450000
	45.5		Renting of construction or demolition equipment with operator		45500000
		45.50	Renting of construction or demolition equipment with operator	This class excludes:renting of construction or demolition machinery and equipment without operators, see 71.32.	45500000

SCHEDULE 2 — ACTIVITIES EXERCISED BY UTILITIES

The provisions of these Regulations governing concession contracts awarded by utilities (referred to in this Schedule as “the relevant provisions”) shall apply to the following activities.

Gas and heat

1

• (1) In the case of gas and heat, the relevant provisions shall apply to the following activities—

• (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat;

• (b) the supply of gas or heat to such networks.

• (2) The supply by a utility referred to in regulation 5(1)(b) or (c) (meaning of “utility”) of gas or heat to fixed networks which provide a service to the public do not fall within the scope of this Schedule if all of the following conditions are met—

• (a) the production of gas or heat by that utility is the unavoidable consequence of carrying out an activity other than those referred to in this paragraph or in paragraphs 2 or 3;

• (b) the supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20% of that utility’s turnover on the basis of the average for the preceding three years, including the current year.

• (3) In this paragraph, “supply” includes the generation/production, wholesale and retail sale of gas, other than the production of gas in the form of extraction which, instead, falls within the scope of paragraph 6.

Electricity

2

• (1) In the case of electricity, the relevant provisions shall apply to the following activities—

• (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity;

• (b) the supply of electricity to such networks.

• (2) The supply by a utility referred to in regulation 5(1)(b) or (c) (meaning of “utility”) of electricity to fixed networks which provide a service to the public shall not fall within the scope of this Schedule if all of the following conditions are met—

• (a) the production of electricity by that utility takes place because its consumption is necessary for carrying out an activity other than those referred to in this paragraph or paragraphs 1 or 3;

• (b) the supply to the public network depends only on that utility’s own consumption and has not exceeded 30% of that utility’s total production of energy, on the basis of the average for the preceding three years, including the current year.

• (3) In this paragraph, “supply” includes generation/production, wholesale and retail sale of electricity.

Transport services

3

• (1) The relevant provisions shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by—

• (a) railway;

• (b) automated systems;

• (c) tramway;

• (d) trolley bus;

• (e) bus; or

• (f) cable.

• (2) For the purposes of this paragraph, a network shall be considered to exist if the service is provided under operating conditions laid down by a competent authority, such as—

• (a) conditions on the routes to be served;

• (b) the capacity to be made available; or

• (c) the frequency of the service.

Ports and airports

4

The relevant provisions shall apply to activities relating to the exploitation of a geographical area for the purpose of the provision of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway.

Postal services activities

5

• (1) The relevant provisions shall apply to activities relating to the provision of—

• (a) postal services;

• (b) services other than postal services, on condition that such services are provided by an entity which also provides postal services and provided that the postal services are not directly exposed to competition within the meaning of regulation 33(2) of the Utilities Contracts (Scotland) Regulations 2016.

• (2) In this paragraph—

• (a) “postal item” means an item addressed in the final form in which it is to be carried, irrespective of weight, which includes—

• (i) correspondence;

• (ii) books;

• (iii) catalogues;

• (iv) newspapers;

• (v) periodicals; and

• (vi) postal packages containing merchandise with or without commercial value;

• (b) “postal services” means services consisting of the clearance, sorting, routing and delivery of postal items, including both services falling within as well as services falling outside the scope of the universal service set up in accordance with the Postal Services Act 2011⁵²;

• (c) “services other than postal services” means services provided in the following areas—

• (i) mail service management services (services both preceding and subsequent to despatch, including mailroom management services),

• (ii) services concerning postal items not included in the definition of “postal item” in paragraph (a), such as direct mail bearing no address.

Oil and gas

6

The relevant provisions shall apply to activities relating to the exploitation of a geographical area for the purpose of—

• (a) extracting oil or gas;

• (b) exploring for, or extracting, coal or other solid fuels.

SCHEDULE 3 — SOCIAL AND OTHER SPECIFIC SERVICES

CPV Code	Description
75200000-8; 75231200-6; 75231240-8; 79611000-0; 79622000-0 (Supply services of domestic help personnel); 79624000-4 (Supply services of nursing personnel) and 79625000-1 (Supply services of medical personnel) from 85000000-9 to 85323000-9; 98133100-5, 98133000-4; 98200000-5; 98500000-8 (Private households with employed persons) and 98513000-2 to 98514000-9 (Manpower services for households, Agency staff services for households, Clerical staff services for households, Temporary staff for households, Home-help services and Domestic services)	Health, social and related services
85321000-5 and 85322000-2, 75000000-6 (Administration, defence and social security services), 75121000-0, 75122000-7, 75124000- 1; from 79995000-5 to 79995200-7; from 80000000-4 Education and training services to 80660000-8; from 92000000-1 to 92700000-8; 79950000-8 (Exhibition, fair and congress organisation services), 79951000-5 (Seminar organisation services), 79952000-2 (Event services), 79952100-3 (Cultural event organisation services), 79953000-9 (Festival organisation services), 79954000-6 (Party organisation services), 79955000-3 (Fashion shows organisation services), 79956000-0 (Fair and exhibition organisation services)	Administrative social, educational, healthcare and cultural services
75300000-9	Compulsory social security services
75310000-2, 75311000-9, 75312000-6,75313000-3, 75313100-4, 75314000-0,75320000-5, 75330000-8, 75340000-1	Benefit services
98000000-3; 98120000-0; 98132000-7; 98133110-8 and 98130000-3	Other community, social and personal services including services furnished by trade unions, political organisations, youth associations and other membership organisation services
98131000-0	Religious services
55100000-1 to 55410000-7; 55521000-8 to 55521200-0 (55521000-8 Catering services for private households, 55521100-9 Meals-on- wheels services, 55521200-0 Meal delivery service) 55520000-1 Catering services, 55522000-5 Catering services for transport enterprises, 55523000-2 Catering services for other enterprises or other institutions, 55524000-9 School catering services 55510000-8 Canteen services, 55511000-5 Canteen and other restricted-clientele cafeteria services, 55512000-2 Canteen management services, 55523100-3 School-meal services	Hotel and restaurant services
79100000-5 to 79140000-7; 75231100-5;	Legal services, to the extent not excluded by regulation 12(1)(e)
75100000-7 to 75120000-3; 75123000-4;75125000-8 to 75131000-3	Other administrative services and government services
75200000-8 to 75231000-4	Provision of services to the community
75231210-9 to 75231230-5; 75240000-0 To 75252000-7; 794300000-7; 98113100-9	Prison related services, public security and rescue services to the extent not excluded by regulation 12(1)(k)
79700000-1 to 79721000-4 (Investigation and security services, Security services, Alarm- monitoring services, Guard services, Surveillance services, Tracing system services, Absconder-tracing services, Patrol services, Identification badge release services, Investigation services and Detective agency services) 79722000-1(Graphology services), 79723000-8 (Waste analysis services)	Investigation and security services
98900000-2 (Services provided by extra- territorial organisations and bodies) and 98910000-5 (Services specific to international organisations and bodies)	International services
64000000-6 (Postal and telecommunications services), 64100000-7 (Post and courier services), 64110000-0 (Postal services), 64111000-7 (Postal services related to newspapers and periodicals), 64112000-4 (Postal services related to letters), 64113000-1 (Postal services related to parcels), 64114000-8 (Post office counter services), 64115000-5 (Mailbox rental), 64116000-2 (Post-restante services), 64122000-7 (Internal office mail and messenger services)	Postal services
50116510-9 (Tyre-remoulding services), 71550000-8 (Blacksmith services)	Miscellaneous services

SCHEDULE 4 — LIST OF INTERNATIONAL SOCIAL AND ENVIRONMENTAL CONVENTIONS REFERRED TO IN REGULATION 40(9)

• ILO Convention 87 on Freedom of Association and Protection of the Right to Organise;

• ILO Convention 98 on the Right to Organise and Collective Bargaining;

• ILO Convention 29 on Forced Labour;

• ILO Convention 105 on Abolition of Forced Labour;

• ILO Convention 138 on Minimum Age;

• ILO Convention 111 on Discrimination (Employment and Occupation);

• ILO Convention 100 on Equal Remuneration;

• ILO Convention 182 on Worst Forms of Child Labour;

• Vienna Convention for the protection of the Ozone Layer and Montreal Protocol on substances that deplete the Ozone Layer;

• Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention);

• Stockholm Convention on Persistant Organic Pollutants (Stockholm POPs Convention);

• Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (UNEP/FAO) (PIC Convention) and its 3 regional Protocols.

Signed

KEITH BROWN — A member of the Scottish Government — 2016-01-29

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations implement, for Scotland, Directive 2014/23/EU of the European Parliament and Council of 26th February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p.1).

These Regulations impose obligations and specify procedures in respect of the award of a concession contract by contracting entities, which term normally includes contracting authorities and utilities. In particular—

• Part 1 sets out the meaning of certain concession contracts.

• Part 2 sets out the scope of the Regulations (including reference to activities and to thresholds based on the estimated value of the procurement), specifies exclusions for certain concession contracts and lays down some general principles applicable to a procurement within the scope of the Regulations.

• Part 3 sets out rules to be followed in relation to the procurement procedure and for the making an award of a concession contract.

• Part 4 makes provision for rules of the performance of a concession contract including sub-contracting, modification and termination of a concession contract.

Part 5 contains provisions about remedies (and their facilitation) in relation to a procurement within the scope of Parts 1 to 4. In doing so these provisions implement, for Scotland, Council Directive 89/665/EEC on the coordination of the laws, regulations and administrative provisions relation to the application of review procedures to the award of concession contracts (OJ L 395, 30.12.1989) as amended⁵³ and Council Directive 92/13/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992) as amended⁵⁴.

Part 6 imposes certain requirements for monitoring, reporting on and reviewing the Regulations.

Part 7 makes transitional and transitory provision and savings, including provision for certain procurements commenced before the commencement of these Regulations, not to be affected by these Regulations.

A full regulatory assessment of the effect that these Regulations will have on the costs of business was prepared and copies may be obtained from the Scottish Procurement Directorate website at www.scotland.gov.uk/topics/spd.

Footnotes

Editorial notes