The Concession Contracts (Scotland) Regulations 2016

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;

(c) if all of the following conditions are fulfilled—

(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 send 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.

(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);

(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; or

(c) the Court of Justice of the European Union finds, in a procedure pursuant to Article 258 of the TFEU, that the United Kingdom failed to fulfil its obligations under the Treaties by virtue of the fact that the concession granted awarded the concession contract without complying with its obligations under the Treaties and the Concession Contracts Directive.

(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.