Sub-contracting the work or works to be carried out under a public works concession contract
37.—(1) A contracting authority seeking offers in relation to a public works concession contract must either—
(a)include in the invitation to tender for, to apply to be selected to tender for or to negotiate, the concession contract, a request that the economic operator specify whether it would intend, if awarded the concession contract, to sub-contract to economic operators which are not related to it—
(i)any of the work or works to be carried out under the contract; and
(ii)where sub-paragraph (a)(i) applies, how much as a proportion of the value of such work or works would be so sub-contracted; or
(b)require as a term of the public works concession contract—
(i)that the concessionaire sub-contract to economic operators which are not related to the concessionaire some or all of the work or works to be carried out under the concession contract; and
(ii)that the amount of the work or works so sub-contracted be not less than 30%, or such higher percentage as may be specified in the contract at the option of the concessionaire, of the value of the consideration which the contracting authority would expect to give for the carrying out of the work or works if it did not grant a concession.
(2) Where the concessionaire is a contracting authority, that contracting authority must comply with the provisions of these Regulations in respect of any public works contract in relation to which it seeks offers for the purpose of sub-contracting the work or works to be carried out under the public works concession contract.
(3) Where the concessionaire is not a contracting authority, the concessionaire must—
(a)publicise its intention to seek offers in relation to any contract to which this paragraph applies by virtue of paragraph (4) by sending to the Official Journal as soon as possible after forming the intention a notice in the form of the contract notice for contracts to be awarded by a concessionaire in Annex XI to Commission Regulation (EC) No 1564/2005 and containing the information therein specified and any other information which the concessionaire considers useful;
(b)comply with regulation 42 in relation to that contract notice as if the concessionaire were a contracting authority; and
(c)subject to paragraphs (5), (6) and (9)—
(i)if that contract notice invites tenders, fix as the last date for the receipt by the concessionaire of tenders a date of not less than 40 days from the date of the dispatch of the notice and specify that date in that notice; or
(ii)if that contract notice invites applications to be selected to tender for or negotiate the contract—
(aa)fix as the last date for the receipt of such applications a date not less than 37 days from the date of dispatch of the notice and specify that date in that notice; and
(bb)fix as the last date for the receipt of tenders following selection of the economic operators to be invited to tender a date of not less than 40 days from the date of dispatch of the invitation and specify that date in the invitation.
(4) Paragraph (3) applies to a contract—
(a)in relation to which the concessionaire is seeking offers for the purpose of sub-contracting any of the work or works to be carried out under the public works concession contract;
(b)which the concessionaire does not intend to enter into with an economic operator—
(i)which is a member of the group of economic operators which acted jointly for the purpose of obtaining the public works concession contract; or
(ii)related to it or any member of the group mentioned in paragraph (i); and
(c)which would, if the concessionaire were a contracting authority, be a public works contract, other than a public works contract—
(i)in respect of which a contracting authority would be entitled to use the negotiated procedure in accordance with regulation 14; or
(ii)which is excluded from the application of these Regulations by regulation 6 or 8.
(5) Where the concessionaire has transmitted a contract notice by electronic means in accordance with the format and procedures referred to in paragraph (3) of Annex VIII to the Public Sector Directive, the time limits referred to in paragraph (3)(c) may be reduced by 7 days.
(6) The concessionaire may reduce the time limits for the receipt of tenders by 5 days provided that—
(a)the concessionaire offers unrestricted and full direct access by electronic means to the contract documents from the date of publication of the contract notice; and
(b)the contract notice specifies the internet address at which the documents referred to in sub-paragraph (a) are available.
(7) The concessionaire must send the contract documents to an economic operator within 6 days of the receipt of a request from that economic operator provided that the documents are requested in good time and any fee specified in the contract notice has accompanied the request.
(8) The concessionaire must supply to an economic operator such further information relating to the contract documents as may be reasonably requested by that economic operator provided that the request is received in sufficient time to enable the concessionaire to supply the information not later than 6 days before the date specified in the contract notice as the final date for the receipt by it of tenders.
(9) The concessionaire must extend the time limit for the receipt by it of tenders in order that all the information necessary for the preparation of a tender is available to all economic operators where—
(a)an economic operator requests the contract documents in sufficient time to allow the concessionaire to respond in accordance with paragraphs (7) and (8) and, for whatever reason, the contract documents are not supplied by that date; or
(b)it is necessary that the economic operators be given the opportunity to inspect the site or premises or documents relating to the contract documents.
(10) The concessionaire may combine the reduction in the periods of time referred to in paragraphs (5) and (6).
(11) In this regulation an economic operator is to be treated as related to another economic operator—
(a)if one economic operator exercises, directly or indirectly, a dominant influence over the other; or
(b)if both those economic operators are subject to the dominant influence of another economic operator.
(12) An economic operator is taken to exercise a dominant influence over another economic operator within the meaning of paragraph (11)—
(a)if it possesses the greater part of the issued share capital of that economic operator or controls the voting power attached to such greater part; or
(b)if it may appoint more than half of the individuals which are ultimately responsible for managing that economic operator’s affairs.
(13) A contracting authority must require applicants for a public works concession contract to submit with the application a list of—
(a)all economic operators which are related to the applicant; and
(b)all economic operators which are related to the economic operators referred to in sub-paragraph (a),
and to update the list from time to time to take account of any changes in the economic operators referred to in sub-paragraphs (a) and (b).