The Concession Contracts Regulations 2016

CHAPTER 1 Concession contracts to which these Regulations apply

Subject-matter and scope of these Regulations

7.—(1) These Regulations establish rules on the procedures for procurement by contracting authorities and utilities by means of a concession contract—

(a) the value of which is estimated to be not less than the threshold mentioned in regulation 9; and

(b) which is not excluded from the scope of these Regulations by any other provision of this Part.

(2) These Regulations apply to the award of works concession contracts or services concession contracts to economic operators by—

(a) contracting authorities; or

(b) utilities, provided that the works or services are intended for the pursuit of one of the activities listed in Schedule 2.

(3) These Regulations are subject to Article 346 of TFEU.

Principle of equal treatment, non-discrimination and transparency

8.—(1) Contracting authorities and utilities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

(2) The design of the concession contract award procedure, including the estimate of the value, shall not be made with the intention of excluding it from the scope of these Regulations or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services.

(3) During the concession contract award procedure, contracting authorities and utilities shall not provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others.

(4) Contracting authorities and utilities shall aim to ensure the transparency of the concession contract award procedure and of the performance of the contract, while complying with regulation 28.

Threshold amounts and methods for calculating the estimated value of concession contracts

Threshold amounts

9.—(1) These Regulations apply to concession contracts the value of which are equal to or greater than the sum specified in Article 8(1) of the Concessions Directive as amended from time to time(1).

(2) The value in pounds sterling of any amount expressed in euro in Article 8(1) of the Concessions Directive, as amended from time to time, shall be taken to be the value for the time being determined by the Commission for the purpose of that Article and published from time to time in the Official Journal in accordance with Article 9(3) of that Directive.

Calculating the value of the concession contract

(3) For the purposes of paragraph (1), the value of a concession contract shall be the total turnover of the concessionaire generated over the duration of the contract, net of value added tax, as estimated by the contracting authority or utility, in consideration for the works and services which are the object of the concession contract and for the supplies incidental to such works and services.

(4) That estimate shall be calculated as at the moment at which the concession notice is sent for publication in accordance with regulation 33 or, in cases where such notice is not provided for, at the moment at which the contracting authority or utility commences the concession contract award procedure, for example by contacting economic operators in relation to the concession contract.

(5) But if the value as estimated at the time of the award is more than 20% higher than the estimate calculated in accordance with paragraph (4), the former shall be used for the purposes of this regulation.

(6) The estimated value of the concession contract shall be calculated using an objective method specified in the concession documents.

(7) When calculating the estimated value of the concession contract, contracting authorities and utilities shall, where applicable, take into account in particular—

(a) the value of any form of option and any extension of the duration of the concession contract;

(b) revenue from the payment of fees and fines by the users of the works or services other than those collected on behalf of the contracting authority or utility;

(c) payments or any other financial advantages, in any form, from the contracting authority or utility or any other public authority to the concessionaire, including compensation for compliance with a public service obligation and public investment subsidies;

(d) the value of grants or any other financial advantages, in any form, from third parties for the performance of the concession contract;

(e) revenue from sales of any assets which are part of the concession contract;

(f) the value of all the supplies and services that are made available to the concessionaire by the contracting authorities or utilities, provided that they are necessary for executing the works or providing the services;

(g) any prizes or payments to candidates or tenderers.

(8) The choice of the method used to calculate the estimated value of a concession contract shall not be made with the intention of excluding it from the scope of these Regulations.

(9) A concession contract shall not be subdivided with the effect of preventing it from falling within the scope of these Regulations, unless justified by objective reasons.

Treatment of lots

(10) Where a proposed work or proposed provision of services may result in concession contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots.

(11) Where the aggregate value of the lots is equal to or greater than the threshold mentioned in paragraph (1), these Regulations shall apply to the awarding of each lot.

(1)

Article 8(1) of the Concessions Directive was last amended by Commission Delegated Regulation (EU) 2015/2172 (OJ No L 307, 25.11.2015, p9).