The Concession Contracts (Scotland) Regulations 2016

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

(c) may include environmental criteria, social criteria or criteria related to innovation.

(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 the Europe 2020 strategy(1) for smart, sustainable and inclusive growth.

(1)

European Commission COM(2010) 2020 3.3.2010.