IE
S.I. No. 203/2017 - European Union (Award of Concession Contracts) Regulations 2017.
Table of Provisions (48)
Statutory Text (48 Articles)
1. Name, company number and registered business name (if any), address, telephone, fax number, e-mail and internet address of the contracting authority or entity and, where different, of the service from which additional information may be obtained.
2. Type of contracting authority or entity and main activity exercised.
3. CPV codes; where the contract is divided into lots, this information shall be provided for each lot.
4. Summary indication of the subject of the concession.
5. Number of tenders received.
6. Value of the successful tender, including fees and prices.
7. Name and address, telephone, fax number, e-mail address and internet address of the successful economic operator(
s
).
8. Any other relevant information.
GIVEN under my Official Seal,
18 May 2017.
PASCHAL DONOHOE,
Minister for Public Expenditure and Reform.
1Council Regulation (EEC) No 3037/90 of 9 October 1990 (OJ L293, 24.10.1990, p. 1.).
9. Number of tenders received with respect of each award, including
(
a
) number of tenders received from economic operators which are small and medium enterprises;
(
b
) number of tenders received from abroad;
(
c
) number of tenders received electronically.
10. For each award, name, address and, where applicable, telephone, fax number, e-mail address and internet address of the successful tenderer(
s
) including
(
a
) information whether the successful tenderer is small and medium enterprise;
(
b
) information whether the concession was awarded to a consortium.
11. Value and main financial terms of the awarded concession, including
(
a
) fees prices and fines if any;
(
b
) prizes and payments if any;
(
c
) any other details relevant to the value of the concession as laid down in Regulation 8(5) and (6).
12. Information whether the concession is related to a project and/or programme financed by Union funds.
13. Name and address of the body responsible for review and, where appropriate, mediation procedures. Precise information concerning the deadline for review procedures, or if need be, the name, address, telephone number, fax number and e-mail address of the service from which this information may be obtained.
14. Date(
s
) and reference(
s
) of previous publications in the Official Journal relevant to the concession(
s
) advertised in this notice.
15. Date of dispatch of the notice.
16. Method used to calculate the estimated value of the concession, if not specified in other concession documents in accordance with Regulation 8.
17. Any other relevant information.
SCHEDULE 7
Information to be Included in Concession Award Notices Concerning Concessions for Social and Other Specific Services, as Referred to in Regulation 31
18. Concession contracts for social and other specific services listed in Annex IV to the Concessions Directive falling within the scope of these Regulations shall be subject only to the obligations arising from Regulations 30(3) and 31.
Mixed contracts
19. (1) Concession contracts which have as their subject-matter both works and services shall be awarded in accordance with the provisions applicable to the type of concession contract that characterises the main subject-matter of the contract in question.
(2) In the case of mixed concession contracts consisting partly of social and other specific services listed in Annex IV to the Concessions Directive and partly of other services, the main subject-matter shall be determined in accordance with which of the estimated values of the respective services is the highest.
(3) Where the different parts of a given contract are objectively separable—
(
a
) in the case of contracts which have as their subject-matter elements covered by these Regulations as well as other elements, a contracting authority and a contracting entity may choose to award separate contracts for the separate parts or to award a single contract;
(
b
) where a contracting authority or a contracting entity chooses to award separate contracts for separate parts, the decision as to which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned;
(
c
) where a contracting authority or a contracting entity chooses to award a single contract, these Regulations, unless otherwise provided in subparagraph (
d
) or in Regulation 20, apply to the ensuing mixed contract, irrespective of—
(i) the value of the parts that would otherwise fall under a different legal regime,
(ii) which legal regime those parts would otherwise have been subject to;
(
d
) in the case of a mixed contract containing elements of concession contracts as well as elements of public contracts covered by the Public Authority Contracts Regulations or contracts covered by the Award of Contracts by Utilities Regulations, the mixed contract shall be awarded in accordance with the Public Authority Contracts Regulations or the Award of Contracts by Utilities Regulations, respectively.
(4) Where the different parts of a given contract are objectively not separable—
(
a
) the applicable legal regime shall be determined on the basis of the main subject-matter of that contract; and
(
b
) where that contract involves both elements of a services concession contract and of a supply contract, the main subject-matter shall be determined according to which of the estimated values of the respective services or supplies is the higher.
(5) Where part of a given contract is covered by Article 346 of TFEU or Directive 2009/81/EC, Regulation 20 shall apply instead of paragraphs (1) to (4).
(6) In the case of contracts intended to cover several activities, one of them being an activity listed in Schedule 2 or subject to the Award of Contracts by Utilities Regulations, the applicable provisions shall be established in accordance with Regulation 21 of these Regulations and Regulation 7 of the Award of Contracts by Utilities Regulations, respectively.
Mixed procurement contracts involving defence or security aspects
20. (1) This Regulation applies in the case of mixed contracts which have as their subject matter elements of a concession contract covered by these Regulations and procurement or other elements covered by Article 346 of TFEU or Directive 2009/81/EC.
(2) In the case of contracts intended to cover several activities, one of them being subject to Schedule 2 or covered by the Award of Contracts by Utilities Regulations, and another being covered by Article 346 of TFEU or Directive 2009/81/EC, the applicable provisions shall be established in accordance with Regulation 22 of these Regulations and Regulation 26 of the Award of Contracts by Utilities Regulations, respectively.
(3) Where the different parts of a given contract are objectively separable, a contracting authority or contracting entity may choose to award separate contracts for the separate parts or to award a single contract.
(4) The decision to award a single contract shall not, however, be taken for the purpose of excluding contracts from the application of these Regulations or the Directive 2009/81/EC.
(5) Where a contracting authority or a contracting entity chooses to award separate contracts for separate parts, the decision as to which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned.
(6) Where a contracting authority or a contracting entity chooses to award a single contract, the following criteria shall apply to determine the applicable legal regime—
(
a
) where part of a given contract is covered by Article 346 of TFEU, or different parts are covered by Article 346 of TFEU and Directive 2009/81/EC respectively, the contract may be awarded without applying these Regulations, provided that the award of a single contract is justified by objective reasons;
(
b
) where part of a given contract is covered by Directive 2009/81/EC, the contract may be awarded in accordance with these Regulations or in accordance with Directive 2009/81/EC, provided that the award of a single contract is justified by objective reasons.
(7) Where the different parts of a given contract are objectively not separable, the contract may be awarded without applying these Regulations where it includes elements to which Article 346 of TFEU applies. Otherwise the contracting authority or contracting entity may choose to award a contract in accordance with these Regulations or in accordance with Directive 2009/81/EC.
Contracts covering both activities listed in Schedule 2 and other activities
21. (1) This Regulation applies in the case of contracts intended to cover several activities where one of those activities is listed in Schedule 2.
(2) A contracting entity may choose to award separate contracts for the purposes of the separate activities or to award a single contract for the purposes of all the activities.
(3) The choice between awarding a single contract or separate contracts shall not be made with the objective of excluding the contract or contracts from the scope of these Regulations or, where applicable, the Public Authority Contracts Regulations or the Award of Contracts by Utilities Regulations.
(4) Where a contracting entity chooses to award a separate contract, the decision as to which provisions shall apply to any one of such separate contracts shall be taken on the basis of the characteristics of the separate activity concerned.
(5) Where a contracting entity chooses to award a single contract—
(
a
) a contract which is intended to cover several activities shall be subject to the provisions applicable to the activity for which it is principally intended;
(
b
) in the case of a contract where it is objectively impossible to determine for which activity the contract is principally intended, the applicable provisions shall be determined in accordance with the following—
(i) the contract shall be awarded in accordance with the provisions of these Regulations applicable to concession contracts awarded by contracting authorities, if one of the activities for which the contract is intended is subject to the provisions of these Regulations applicable to concession contracts awarded by contracting authorities and the other is subject to the provisions of these Regulations applicable to concession contracts awarded by contracting entities,
(ii) the contract shall be awarded in accordance with the Public Authority Contracts Regulations, if one of the activities for which the contract is intended is subject to these Regulations and the other to the Public Authority Contracts Regulations,
(iii) the contract shall be awarded in accordance with these Regulations, if one of the activities for which the contract is intended is subject to these Regulations and the other is not subject to these Regulations, the Public Authority Contracts Regulations or the Award of Contracts by Utilities Regulations.
(6) However, where one of the activities concerned is covered by Article 346 of TFEU or Directive 2009/81/EC., Regulation 22 applies instead of paragraph (5).
Contracts covering both activities listed in Schedule 2 and activities involving defence or security aspects.
22. (1) This Regulation applies in the case of contracts intended to cover several activities, one of them being listed in Schedule 2 and another being covered by Article 346 of TFEU or Directive 2009/81/EC.
(2) A contracting entity may choose to award separate contracts for the purposes of the separate activities or to award a single contract for the purposes of all the activities.
(3) The choice between awarding a single contract or awarding separate contracts shall not, however, be made with the objective of excluding the contract or contracts from the scope of these Regulations or Directive 2009/81/EC and a decision to award a single contract shall be justified by objective reasons.
(4) Where a contracting entity chooses to award separate contracts for separate parts, the decision as to which legal regime applies to any one of the separate contracts shall be taken on the basis of the characteristics of the separate activity concerned.
(5) Where a contracting entity chooses to award a single contract, the following shall apply—
(
a
) in the case of a contract intended to cover an activity which is covered by these Regulations and another which is covered by Article 346 of TFEU, the contracting entity may award the contract without applying these Regulations;
(
b
) in the case of a contract intended to cover an activity which is covered by these Regulations and another which is covered by Directive 2009/81/EC, the contracting entity may award the contract either in accordance with these Regulations or in accordance with Directive 2009/81/EC.
(6) Paragraph (5)(
b
) is without prejudice to the thresholds and exclusions that are provided by Directive 2009/81/EC.
(7) Contracts referred to in paragraph (5)(
b
) which also include procurement or other elements which are covered by Article 346 of TFEU may be awarded without applying these Regulations.
CHAPTER 4
Specific Situations
Reserved concession contracts
23. (1) A contracting authority and a contracting entity may—
(
a
) reserve the right to participate in concession contract award procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled or disadvantaged persons, or
(
b
) provide for such concession contracts to be performed in the context of sheltered employment programmes,
provided that at least 30% of the employees of those workshops, economic operators or programmes are disabled or disadvantaged workers.
(2) In such a case, the concession contract notice or, in the case of a concession contract for social and other specific services listed in Annex IV to the Concessions Directive, the prior information notice, shall make reference to Article 24 of the Concessions Directive.
Research and development services
24. These Regulations apply to services concession contracts for research and development services which are covered by CPV codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5 provided that the following conditions are fulfilled—
(
a
) the benefits accrue exclusively to the contracting authority or contracting entity for its use in the conduct of its own affairs; and
(
b
) the service provided is wholly remunerated by the contracting authority or contracting entity.
CHAPTER 5
Provisions Relating to Economic Operators, Confidentiality, Etc.
Economic operators
25. (1) Economic operators that, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the State, they would be required to be either natural or legal persons.
(2) Legal persons may be required to indicate, in the tender or in the application, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
(3) Groups of economic operators, including temporary associations, may participate in concession contract award procedures and shall not be required by a contracting authority or a contracting entity to have a specific legal form in order to submit a tender or a request to participate.
(4) Where necessary, a contracting authority or a contracting entity may clarify in the concession documents how groups of economic operators are to meet the requirements as to economic and financial standing or technical and professional ability referred to in Regulation 38 provided that this is justified by objective reasons and is proportionate.
(5) Any conditions for the performance of a concession contract by such groups of economic operators which are different from those imposed on individual participants shall also be justified by objective reasons and shall be proportionate.
(6) Notwithstanding paragraphs (1) to (5), a contracting authority or contracting entity may require groups of economic operators to assume a specific legal form once they have been awarded the contract, to the extent that such a change is necessary for the satisfactory performance of the contract.
Nomenclatures
26. Any references to nomenclatures in the context of the award of concession contracts shall be made using the CPV.
Confidentiality
27. (1) A contracting authority or contracting entity shall not disclose information which has been forwarded to it by an economic operator and designated by that economic operator as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.
(2) Paragraph (1) is without prejudice to—
(
a
) any other provisions of these Regulations, including the obligations relating to the advertising of awarded concession contracts and the provision of information to candidates and tenderers set out in Regulations 31 and 40 respectively; and
(
b
) the
Freedom of Information Act 2014
(No. 30 of 2014).
(3) This Regulation shall not prevent public disclosure of non-confidential parts of concluded contracts, including any subsequent changes.
(4) A contracting authority or a contracting entity may impose on an economic operator requirements aimed at protecting the confidential nature of information which the contracting authority or contracting entity makes available throughout the concession contract award procedure.
Provisions applicable to communication
28. (1) A contracting authority and a contracting entity may choose one or more of the following means of communication for all communication and information exchange—
(
a
) electronic means;
(
b
) post or fax;
(
c
) oral communication, including telephone, in respect of communications other than the essential elements of a concession contract award procedure, and provided that the content of the oral communication is documented to a sufficient degree on a durable medium;
(
d
) hand delivery certified by an acknowledgement of receipt,
except where the use of electronic means is mandatory in accordance with Regulations 32(2) and 33.
(2) The means of communication chosen shall be generally available and non-discriminatory, and shall not restrict economic operators’ access to the concession contract award procedure.
(3) The tools and devices to be used for communicating by electronic means, and their technical characteristics, shall be interoperable with information and communication technology products in general use.
(4) In all communication, exchange and storage of information, a contracting authority and a contracting entity shall ensure that the integrity of data and the confidentiality of applications and tenders are preserved.
(5) A contracting authority and a contracting entity shall examine the content of applications and tenders only after the time limit set for submitting them has expired.
PART 3
Rules on the Award of Concession Contracts
CHAPTER 1
General principles
General principles
29. (1) In paragraph (2) “relevant procedure” means the procedure leading to the choice of concessionaire.
(2) If the relevant procedure complies with these Regulations, then nothing in these Regulations is to be construed as prejudicing the freedom of a contracting authority or contracting entity to organise the relevant procedure.
(3) The design of the concession award procedure shall respect the principles specified in Regulation 7. In particular, during the concession award procedure, the contracting authority or contracting entity shall not provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others.
(4) In the performance of concession contracts, economic operators shall comply with applicable obligations in the field of environmental, social and labour law that applies at the place where the works are carried out or the services provided, that have been established by Union law, national law, collective agreements, or by international, environmental, social and labour law listed in Annex X to the Concessions Directive. A contracting authority or contracting entity shall ensure that such obligations are incorporated into the relevant concession contracts.
Concession notices
30. (1) A contracting authority or a contracting entity wishing to award a concession contract, other than a concession contract for social and other specific services listed in Annex IV to the Concessions Directive, shall make known its intention through the publication of a concession notice.
(2) Such a concession notice shall contain—
(
a
) the information set out in Schedule 4, and
(
b
) where appropriate, any other information deemed useful by the contracting authority or contracting entity,
and shall be in the format of the standard forms set out in Regulation (EU) 2015/1986 of 11 November 2015.
(3) A contracting authority or a contracting entity wishing to award a concession contract for social and other specific services listed in Annex IV to the Concessions Directive shall make known its intention of a planned concession award through the publication of a prior information notice. Such a prior information notice shall contain the information set out in Schedule 5.
(4) This Regulation shall not apply in any of the following cases—
(
a
) where no applications, no suitable applications, no tenders or no suitable tenders have been submitted in response to a prior concession contract procedure, provided that the initial conditions of the concession contract are not substantially altered and that a report is sent to the Commission where it so requests;
(
b
) where the works or services can be supplied only by a particular economic operator for any of the following reasons—
(i) the aim of the concession contract is the creation or acquisition of a unique work of art or artistic performance,
(ii) competition is absent for technical reasons,
(iii) the existence of an exclusive right,
(iv) the protection of intellectual property rights and exclusive rights other than exclusive rights as defined in Regulation 2,
but only, in the case of each of clauses (ii) to (iv), where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the concession contract award.
(5) For the purposes of paragraph (4)(
a
)—
(
a
) a tender shall be considered not to be suitable where it is irrelevant to the concession contract, being manifestly incapable, without substantial changes, of meeting the contracting authority’s or contracting entity’s needs and requirements as specified in the concession documents;
(
b
) an application shall be considered not to be suitable where—
(i) the applicant concerned is required to be, or may be, excluded under Regulation 37(1) to (18) or does not meet the selection criteria set out by the contracting authority or contracting entity in accordance with Regulation 38,
(ii) the application includes tenders which are considered not to be suitable as described in subparagraph (
a
).
Concession award notices
31. (1) Not later than 48 days after the award of a concession contract, the contracting authority or contracting entity shall send a concession award notice on the results of the concession award procedure in accordance with the procedure specified in Regulation 32.
(2) However, concession contract award notices for social and other specific services listed in Annex IV to the Concessions Directive may be grouped for publication on a quarterly basis, in which case the contracting authority or contracting entity shall send the grouped notices for publication within 48 days of the end of each quarter.
(3) A concession award notice shall contain the information set out in Schedule 6, or in the case of a concession contract for social and other specific services listed in Annex IV to the Concessions Directive, the information set out in Schedule 7 and shall be published in accordance with Regulation 32.
Form and manner of publication of notices
32. (1) Concession notices, concession award notices and the notice referred to in Regulation 43(4) shall include the information set out in Schedules 4, 6 and 7and in the format of standard forms, including standard forms for corrigenda.
(2) The notices referred to in paragraph (1) shall be drawn up, transmitted by electronic means to the Publications Office and published in accordance with Annex IX to the Concessions Directive. The Publications Office shall give the contracting authority or contracting entity confirmation of the receipt of the notice and of the publication of the information sent, indicating the date of publication which shall constitute proof of publication. Notices shall be published not later than five days after they are sent. The costs of publication of the notices by the Publications Office shall be borne by the Union.
(3) Concession notices shall be published in full in one or more of the official languages of the institutions of the Union as chosen by the contracting authority or contracting entity. That language version or those language versions shall constitute the sole authentic text or texts. A summary of the important elements of each notice shall be published in the other official languages of the institutions of the Union.
(4) Concession notices and concession award notices shall not be published in the State or another Member State before publication by the Publications Office unless publication at Union level does not take place 48 hours after the Publications Office confirms receipt by the contracting authority or the contracting entity of the notice as referred to in paragraph (2). Concession notices and concession award notices published in the State or another Member State shall not contain information other than that contained in the notices dispatched to the Publications Office but shall indicate the date of dispatch of the notice to the Publications Office.
Electronic availability of concession documents
33. (1) A contracting authority and a contracting entity shall offer, by electronic means, unrestricted and full direct access free of charge to the concession documents from the date of the publication in the Official Journal of a concession notice or, where the concession notice does not include the invitation to submit tenders, from the date on which the invitation to submit tenders was sent.
(2) The text of the concession notice or of the invitation to submit tenders shall specify the internet address at which the concession documents are accessible.
(3) Paragraph (4) applies where, in duly justified circumstances due to—
(
a
) exceptional security reasons,
(
b
) technical reasons, or
(
c
) the particularly sensitive nature of commercial information requiring a very high level of protection,
unrestricted and full direct access free of charge to certain concession documents cannot be offered by electronic means.
(4) In the circumstances set out in paragraph (3) a contracting authority or a contracting entity shall indicate in the notice or the invitation to submit a tender that the concession documents concerned will be transmitted by means other than electronic means and the time limit for the receipt of tenders shall be prolonged.
(5) Provided that it has been requested in good time, a contracting authority or a contracting entity or a competent department shall supply to all applicants or tenderers taking part in the concession contract award procedure additional information relating to the concession documents not later than 6 days before the deadline fixed for the receipt of tenders.
Combating corruption and preventing conflicts of interest
34. (1) A contracting authority and contracting entity shall take appropriate measures to combat fraud, favouritism and corruption and to effectively prevent, identify and remedy conflicts of interest arising in the conduct of concession contract award procedures, so as to avoid any distortion of competition and to ensure the transparency of the award procedure and the equal treatment of all candidates and tenderers.
(2) The measures adopted in relation to conflicts of interest shall not go beyond what is strictly necessary to prevent a potential conflict of interest or eliminate a conflict of interest that has been identified.
(3) For the purposes this Regulation, “conflicts of interest” includes any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the concession contract award procedure.
(4) In paragraph (3), “relevant staff members” means staff members of the contracting authority or contracting entity who are involved in the conduct of the concession contract award procedure or may influence the outcome of that procedure.
CHAPTER 2
Procedural guarantees
Technical and functional requirements
35. (1) Technical and functional requirements shall be set out in the concession documents and shall lay down the characteristics required of the works or services that are the subject-matter of the concession contract.
(2) Those characteristics may also refer to the specific process of production or provision of the requested works or services provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives.
(3) The characteristics may, for example, include quality levels, environmental and climate performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, terminology, symbols, testing and test methods, marking and labelling, or user instructions.
(4) Unless justified by the subject-matter of the concession contract, technical and functional requirements shall not refer to a specific make or source, or a particular process which characterises the products or services provided by a specific economic operator or to trade marks, patents, types or a specific production with the effect of favouring or eliminating certain undertakings or certain products.
(5) However, such a reference is permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract is not possible, in which case the reference shall be accompanied by the words “or equivalent”.
(6) A contracting authority or contracting entity shall not reject a tender on the grounds that the works and services tendered for do not comply with the technical and functional requirements to which it has referred, once the tenderer proves in its tender, by any appropriate means, that the solutions it has proposed satisfy in an equivalent manner the technical and functional requirements.
Procedural guarantees
36. (1) Concession contracts shall be awarded on the basis of the award criteria, provided that all of the following conditions are fulfilled—
(
a
) the tender complies with any minimum requirements set, where applicable, by the contracting authority or contracting entity;
(
b
) the tenderer complies with the conditions for participation set out in Regulation 38(1) to (3); and
(
c
) the tenderer is not excluded from participating in the concession contract award procedure in accordance with Regulation 37(1) to (9), and subject to Regulation 37(13) to (18).
(2) The contracting authority or contracting entity shall provide
(
a
) in the concession notice, a description of the concession contract and of the conditions of participation;
(
b
) in the concession notice or the invitation to submit a tender, or other concession document, a description of the award criteria, and where applicable, the minimum requirements to be met.
(3) The contracting authority or contracting entity may limit the number of candidates or tenderers to an appropriate level, on condition that this is done in a transparent manner and on the basis of objective criteria.
(4) The number of candidates or tenderers invited shall be sufficient to ensure genuine competition.
(5) The contracting authority or contracting entity shall communicate the following to all participants—
(
a
) the description of the envisaged organisation of the procedure and an indicative completion deadline; and
(
b
) any modification to that procedure or completion deadline.
(6) To the extent that any modification referred to in paragraph (5)(
b
) concerns elements disclosed in the concession notice, the contracting authority or contracting entity shall advertise it to all economic operators.
(7) The contracting authority or contracting entity shall provide for appropriate recording of the stages of the procedure using the means it considers appropriate, subject to Regulation 27(1), (2) and (3).
(8) The contracting authority or contracting entity may hold negotiations with candidates and tenderers; however the subject matter of the concession contract, the award criteria and the minimum requirements shall not be changed during the course of any negotiations.
(9) In this Regulation—
“award criteria” means the award criteria set out by the contracting authority or contracting entity in accordance with Regulation 41;
“minimum requirements” mean the conditions and characteristics (in particular any technical, physical, functional and legal conditions and characteristics) that any tender must meet or possess.
Exclusion grounds
37. (1) Subject to paragraphs (6), (15) and (20), a contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) shall exclude an economic operator from participation in a concession contract award procedure where it has established that the economic operator concerned has been convicted of one or more of the following offences
(
a
) participation in a criminal organisation, within the meaning of Article 2 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime;
(
b
) corruption, which, in this Regulation, means corruption within the meaning of the following
(i) Regulation 2;
(ii) Article 2(1) of Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector;
(iii) the law of the State, where the contracting authority or the contracting entity or the economic operator concerned is established in the State;
(iv) the law of the Member State, other than the State, in which the contracting authority or the contracting entity or the economic operator concerned is established;
(
c
) fraud within the meaning of Article 1 of the Convention on the protection of the European Communities’ financial interests drawn up under the Council Act of 26 July 1995;
(
d
) terrorist offences or offences linked to terrorist activities, within the meaning of Articles 1 and 3 respectively of Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism or inciting or aiding or abetting or attempting to commit an offence referred to in Article 4 of that Council Framework Decision;
(
e
) money laundering or terrorist financing, within the meaning of Article 1 of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing;
(
f
) child labour and other forms of trafficking in human beings, within the meaning of Article 2 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA.
(2) The obligation of a contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) to exclude an economic operator under paragraph (1) also applies (but subject to paragraphs (6), (15) and (20)) where the person convicted is a member of the administrative, management or supervisory body of that economic operator or has powers of representation, decision or control in the economic operator.
(3) Subject to paragraphs (5) to (7), an economic operator shall be excluded by a contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) from participation in a concession contract award procedure where—
(
a
) the contracting authority or contracting entity is aware that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions, and
(
b
) the breach referred to in subparagraph (
a
) has been established by a judicial or administrative decision having final and binding effect in accordance with the law of the country in which the operator is established or the Member State of the contracting authority or contracting entity.
(4) Subject to paragraph (5), a contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) may exclude an economic operator from participation in a concession contract award procedure where the contracting authority or contracting entity can demonstrate, by any appropriate means, that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions.
(5) Paragraphs (3) and (4) shall not apply when the economic operator has fulfilled its obligations by paying, or entering into a binding arrangement with a view to paying, the taxes or social security contributions due, including, where applicable, any interest accrued or fines.
(6) A contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) shall not be obliged to exclude an economic operator under this Regulation where, on an exceptional basis, there are overriding reasons relating to the public interest such as public health or protection of the environment.
(7) A contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) shall not be obliged to exclude an economic operator under paragraph (3) where such an exclusion would be disproportionate, including where—
(
a
) only minor amounts of taxes or social security contributions referred to in paragraph (3)(
a
) are unpaid, or
(
b
) the economic operator was informed of the exact amount due following its breach of its obligations relating to the payment of taxes or social security contributions referred to in paragraph (3)(
a
) at such time that it did not have the possibility of taking measures as provided for in paragraph (5) before the expiration of the deadline for requesting participation or, in open procedures, the deadline for submitting its tender.
(8) Subject to paragraphs (15) and (21), a contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) may exclude from participation in a concession contract award procedure any economic operator in one or more of the following situations
(
a
) where the contracting authority or contracting entity can demonstrate by any appropriate means a violation of applicable obligations referred to in Regulation 29(4);
(
b
) where the economic operator is bankrupt or is the subject of insolvency or winding-up proceedings, where its assets are being administered by a liquidator or by the court, where it is in an arrangement with creditors, where its business activities are suspended or it is in any analogous situation arising from a similar procedure under the law of the State;
(
c
) where the contracting authority or contracting entity can demonstrate, by any appropriate means, that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable;
(
d
) where a conflict of interest within the meaning of Regulation 34 cannot be effectively remedied by other, less intrusive, measures;
(
e
) where the contracting authority or contracting entity has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;
(
f
) where the economic operator has shown significant or persistent deficiencies in the performance of a prior public contract which led to early termination of that prior contract, damages or other comparable sanctions;
(
g
) where the economic operator has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria, has withheld such information or is not able to submit supporting documents required under these Regulations;
(
h
) where the economic operator has undertaken to unduly influence the decision-making process of the contracting authority or contracting entity, or obtain confidential information that may confer upon it undue advantages in the concession award procedure or where the economic operator has negligently provided misleading information that may have a material influence on decisions concerning exclusion, selection or award;
(
i
) in the case of a concession contract in the fields of defence and security as referred to in Directive 2009/81/EC, where the economic operator has been found, on the basis of any means of evidence, including protected data sources, not to possess the reliability necessary to exclude risks to the security of the State.
(9) Notwithstanding subparagraph (
b
) of paragraph (8), a contracting authority or a contracting entity may decide not to exclude an economic operator that is in any of the situations referred to in that subparagraph where it has established that the economic operator will be able to perform the contract taking into account the national rules and measures of the Member State of establishment of the economic operator or the law of the State, as appropriate, on the continuation of business in those situations.
(10) A contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) shall, at any time during the concession contract award procedure, exclude an economic operator where it becomes aware that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs (1) to (3).
(11) A contracting authority or a contracting entity referred to in Regulation 5(1)(
a
) may, at any time during the concession contract award procedure, exclude an economic operator where it becomes aware that that economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph (4) or (8).
(12) Subject to paragraphs (15) and (22), a contracting entity other than one referred to in Regulation 5(1)(
a
) may exclude an economic operator from participation in a concession contract award procedure where it is aware that that economic operator is in one of the situations referred to in paragraph (1), (4) or (8)
(13) In addition to its operating in the case there mentioned, paragraph (12) shall, subject to paragraph (15), operate to enable a contracting entity other than one referred to in Regulation 5(1)(
a
) to exclude, at any time during the concession contract award procedure, an economic operator where it becomes aware that that economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph (1), (4) or (8).
(14) An economic operator that is in one of the situations referred to in paragraph (1), (2) or (8) may provide evidence to the effect that measures taken by the economic operator concerned are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion.
(15) Where the evidence provided under paragraph (14) is considered sufficient the economic operator concerned shall not be excluded from the concession contract award procedure.
(16) For the purposes of paragraphs (14) and (15) the economic operator shall show that it has—
(
a
) paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct concerned,
(
b
) clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities, and
(
c
) taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.
(17) The contracting authority or contracting entity shall, when evaluating the measures shown to be taken by the economic operator under paragraph (16), take into account the gravity and particular circumstances of the criminal offence or misconduct concerned.
(18) Where the contracting authority or contracting entity considers that the measures shown to be taken by the economic operator under paragraph (16) are insufficient, it shall give the economic operator a statement of the reasons for that decision.
(19) An economic operator that is excluded by final judgment from participating in procurement or concession contract award procedures shall not be entitled to make use of the possibility provided for in paragraphs (14) to (18) during the period of exclusion resulting from that judgement in the Member State where the judgement is effective.
(20)(
a
) The following applies in relation to the construction of paragraphs (1) and (2) where the case is not a case in which the period of exclusion has been set by final judgment.
(
b
) Paragraphs (1) and (2) shall be construed so that the requirement under either of those paragraphs that the economic operator be excluded, in the manner there mentioned, shall cease to apply on the expiration of the period of 5 years from the date of conviction of the economic operator or person, as the case may be, for the offence concerned referred to in the relevant paragraph.
(21)(
a
) The following applies in relation to the construction of paragraph (8) where the case is not a case in which the period of exclusion has been set by final judgment.
(
b
) Paragraph (8) shall be construed so that the power under that paragraph to exclude an economic operator, in the manner there mentioned, shall not be exercisable where the economic operator concerned establishes that 3 or more years have elapsed since the date that the economic operator was in the relevant situation referred to in that paragraph.
(22)(
a
) The following applies in relation to the construction of paragraph (12) where the case is not a case in which the period of exclusion has been set by final judgment.
(
b
) Paragraph (12) shall be construed so that—
(i) the power under that paragraph to exclude an economic operator, in the manner there mentioned as it relates to paragraph (1), shall cease to be exercisable on the expiration of the period of 5 years from the date of conviction of the economic operator for the offence concerned referred to in paragraph (1),
(ii) the power under that paragraph to exclude an economic operator, in the manner there mentioned as it relates to paragraph (8), shall not be exercisable where the economic operator concerned establishes that 3 or more years have elapsed since the date that the economic operator was in the relevant situation referred to in paragraph (8).
(23) The reference in paragraph (19) to the requirement under paragraph (1) or (2) includes a reference to the requirement under either such paragraph as it operates by virtue of paragraph (10).
(24) The reference in paragraph (20) to the power under paragraph (8) includes a reference to the power under paragraph (8) as that paragraph operates by virtue of paragraph (11).
(25) The reference in paragraph (22) to a particular power under paragraph (12) includes a reference to the particular power under paragraph (12) as that paragraph operates by virtue of paragraph (13).
Selection of and qualitative assessment of candidates
38. (1) A contracting authority or a contracting entity shall verify the conditions for participation in a concession contract award procedure relating to the professional and technical ability and the financial and economic standing of candidates or tenderers on the basis of self-declarations or references submitted as proof in accordance with the requirements specified in the concession notice.
(2) Those requirements shall be non-discriminatory and proportionate to the subject-matter of the concession contract.
(3) The conditions for participation shall be related and proportionate to the need to ensure the ability of the concessionaire to perform the concession contract, taking into account the subject matter of the concession contract and the purpose of ensuring genuine competition.
(4) For the purpose of meeting the conditions for participation set out in paragraphs (1) to (3), an economic operator may, where appropriate and for a particular concession contract, rely on the capacities of other entities, regardless of the legal nature of its links with them, subject to the following provisions of this Regulation.
(5) Where an economic operator wants to rely on the capacities of other entities, it shall prove to the contracting authority or contracting entity that it will have at its disposal, throughout the period of the concession contract, the necessary resources, for example, by producing a commitment by those entities to that effect.
(6) With regard to financial standing, the contracting authority or contracting entity may require that the economic operator and those entities on which it relies are jointly liable for the execution of the contract.
(7) A group of economic operators within the meaning of Regulation 25 may rely on the capacities of participants in the group or of other entities, and paragraphs (4) to (6) apply in relation to such as group in the same way that they apply in relation to an economic operator.
Time limits for receipt of applications and tenders for the concession contract
39. (1) When fixing the time limits for the receipt of applications or of tenders, a contracting authority or contracting entity shall take account, in particular, of the complexity of the concession contract and the time required for drawing up tenders or applications, without prejudice to the minimum time limits set out in this Regulation.
(2) Where applications or tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the concession documents, the time limits for the receipt of applications for the concession contract or for the receipt of tenders shall be fixed so that all economic operators concerned may be aware of all the information needed to produce applications or tenders and in any event shall be longer than the minimum time limits set out in paragraphs (3) and (4).
(3) The minimum time limit for the receipt of applications (whether or not including tenders for the concession contract) shall be 30 days from the date on which the concession notice was sent for publication in accordance with Regulation 30.
(4) Where the procedure takes place in successive stages the minimum time limit for the receipt of initial tenders shall be 22 days from the date on which the invitation to tender is sent.
(5) The time limits for receipt of tenders may be reduced by 5 days where the contracting authority or contracting entity allows the submission of tenders by electronic means in accordance with Regulation 28.
Provision of information to candidates and tenderers
40. (1) The contracting authority or contracting entity shall as soon as possible inform each candidate and tenderer of decisions reached concerning the award of a concession contract, including—
(
a
) the name of the successful tenderer; and
(
b
) the grounds for any decision—
(i) to reject its application or tender,
(ii) not to award a contract for which there has been publication of a concession notice, or
(iii) to recommence the procedure.
(2) On request from the party concerned, the contracting authority or contracting entity shall as quickly as possible, and in any event within 15 days from receipt of a request in writing, inform any tenderers that have submitted an admissible tender of the characteristics and relative advantages of the tender selected.
(3) The contracting authority or contracting entity may decide to withhold certain information referred to in this Regulation where the release of such information—
(
a
) would impede law enforcement or would otherwise be contrary to the public interest;
(
b
) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or
(
c
) might prejudice fair competition between economic operators.
Award criteria
41. (1) A concession contract shall be awarded on the basis of objective criteria which comply with the principles set out in Regulation 7 and which ensure that tenders are assessed in conditions of effective competition so as to identify an overall economic advantage for the contracting authority or contracting entity.
(2) The award criteria—
(
a
) shall be linked to the subject-matter of the concession contract;
(
b
) shall not confer an unrestricted freedom of choice on the contracting authority or contracting entity; and
(
c
) may include environmental, social, or innovation-related criteria.
(3) The award criteria shall be accompanied by requirements which allow the information provided by the tenderers to be effectively verified.
(4) The contracting authority or contracting entity shall verify whether tenders properly meet the award criteria.
(5) The contracting authority or contracting entity shall list the award criteria in descending order of importance.
(6) Notwithstanding paragraph (1), where the contracting authority or 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 authority or contracting entity, the contracting authority or contracting entity may, exceptionally, modify the ranking order of the award criteria to take into account that innovative solution.
(7) Where paragraph (6) applies the contracting authority or contracting entity shall—
(
a
) inform all tenderers about the modification of the order of importance and issue a new invitation to submit tenders in compliance with the minimum time limit referred to in Regulation 39(4) for the receipt of tenders;
(
b
) where the award criteria have been published in or at the same time as the concession notice, publish a new concession notice in compliance with the minimum time limit referred to in Regulation 39(3) for the receipt of applications.
(8) The contracting authority or contracting entity shall ensure that a modification of the ranking order referred to in paragraph (6) does not result in discrimination.
PART 4
Rules on the performance of concession contracts
Subcontracting
42. (1) In the concession documents, the contracting authority or contracting entity may ask the tenderer to indicate in its tender any share of the concession contract that it may intend to subcontract to third parties and any proposed subcontractors.
(2) Paragraph (1) is without prejudice to the question of the concessionaire’s liability.
(3) In the case of a works concession contract and in respect of services to be provided at a facility under the oversight of the contracting authority or contracting entity, after the award of the concession contract and at the latest when the performance of the concession contract commences, the contracting authority or contracting entity shall require the concessionaire to notify to the contracting authority or contracting entity the name, contact details and legal representatives of its subcontractors involved in such works or services, in so far as known at the time.
(4) The contracting authority or contracting entity shall require the concessionaire to notify it of—
(
a
) any changes to the information notified under paragraph (3) during the course of the concession contract; and
(
b
) the name, contact details and legal representatives of any new subcontractors which it subsequently involves in such works or services.
(5) Paragraphs (3) and (4) do not apply to suppliers.
(6) Where the contracting authority or contracting entity determines that such compliance in the following cases or by the following persons is required (and makes it a requirement accordingly), the obligations provided for in paragraphs (3) and (4) shall also fall to be complied with in such cases or by such persons as it determines, including, but not limited to—
(
a
) cases of services concession contracts (other than those concerning services to be provided at the facilities under the oversight of the contracting authority or 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.
(7) To avoid contraventions of the obligations referred to in Regulation 29(4), a contracting authority or a contracting entity may take appropriate measures by, amongst other things, verifying whether there are grounds for exclusion of subcontractors under Regulation 37.
(8) In such cases, the contracting authority or contracting entity—
(
a
) shall require that the economic operator replace 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 replace a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.
Modification of concession contracts during their term
43. (1) Concession contracts may be modified without a new concession contract award procedure in accordance with these Regulations in any of the following cases—
(
a
) where the modifications, irrespective of their monetary value, have been provided for in the initial concession documents in clear, precise and unequivocal review clauses, which may include value revision clauses or options, provided that such clauses—
(i) shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used, and
(ii) shall not provide for modifications or options that would alter the overall nature of the concession contract;
(
b
) for additional works or services by the original concessionaire that have become necessary and were not included in the initial concession contract where 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 concession contract, and
(ii) would cause significant inconvenience or substantial duplication of costs for the contracting authority or contracting entity,
and this subparagraph is subject to, and is supplemented by, paragraph (2);
(
c
) where all of the following conditions are fulfilled—
(i) the need for modification has been brought about by circumstances which a diligent contracting authority or contracting entity could not have foreseen,
(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 pursuing an activity other than an activity referred to in Schedule 2, any increase in value does not exceed 50 % of the value of the original concession contract.
and this subparagraph is subject to, and is supplemented by, paragraph (3);
(
d
) where a new concessionaire replaces the one to which the contracting authority or the contracting entity had initially awarded the concession contract as a consequence of—
(i) an unequivocal review clause or option in conformity with paragraph (1)(
a
), or
(ii) universal or partial succession into the position of the initial concessionaire, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of these Regulations;
(
e
) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph (8).
(2) For the purposes of paragraph (1)(
b
)—
(
a
) in the case of a concession contract awarded by a contracting authority for the purposes of pursuing an activity other than an activity referred to in Schedule 2, any increase in value shall not exceed 50% of the value of the original concession contract,
(
b
) where several successive modifications are made, that limitation shall apply to the value of each modification,
(
c
) such consecutive modifications shall not be aimed at circumventing these Regulations.
(3) For the purposes of paragraph (1)(
c
)—
(
a
) where several successive modifications are made, that limitation shall apply to the value of each modification;
(
b
) such consecutive modifications shall not be aimed at circumventing these Regulations.
(4) A contracting authority or contracting entity which has modified a contract in either of the cases described in paragraph (1)(
b
) and (
c
) shall publish a notice to that effect in the Official Journal. Such a notice shall contain the information set out in Annex XI to the Concessions Directive and shall be published in accordance with Regulation 32.
(5) Furthermore, and without any need to verify whether the conditions specified in paragraph (8)(
a
) to (
d
) are met, contracts may equally be modified without a new procurement procedure in accordance with these Regulations being necessary where the value of the modification is below each of the following values—
(
a
) the threshold mentioned in Regulation 8; and
(
b
)10% of the value of the initial concession contract.
(6) However, for the purposes of paragraph (5) the modification cannot alter the nature of the concession contract. Where several successive modifications are made, the value shall be assessed on the basis of the net cumulative value of the successive modifications.
(7) For the purpose of the calculation of the value mentioned in paragraphs (1)(
c
), (2) and (5)(
b
), the updated value shall be the reference value when the concession contract includes an indexation clause. If the concession contract does not contain an indexation clause, the updated value shall be calculated taking into account the average inflation in the State.
(8) A modification of a concession contract during its term shall be considered substantial for the purposes of paragraph (1)(
e
), where the modification renders the concession contract materially different in character from the one initially concluded. In any event, without prejudice to paragraphs (1) to (6), a modification shall be considered to be substantial where one or more of the following conditions are met
(
a
) the modification introduces conditions which, had they been part of the initial concession contract award procedure, would have—
(i) allowed for the admission of other applicants than those originally selected,
(ii) allowed for the acceptance of a tender other than that originally accepted, or
(iii) attracted additional participants in the concession contract award procedure;
(
b
) 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;
(
c
) the modification extends the scope of the concession contract considerably;
(
d
) a new concessionaire replaces the one to which the contracting authority or the contracting entity had initially awarded the concession contract in cases other than those provided for in paragraph (1)(
d
).
(9) A new concession contract award procedure in accordance with these Regulations shall be required for modifications of the provisions of a concession contract during its term other than those provided for in paragraphs (1) to (6).
Termination of concession contracts
44. The contracting authority or contracting entity shall ensure that every concession contract which it awards contains provisions enabling it to terminate the concession contract where one or more of the following conditions are fulfilled—
(
a
) a modification of the concession contract has taken place, which would have required a new concession contract award procedure in accordance with Regulation 43;
(
b
) the concessionaire, at the time of the concession contract award, falls within one of the cases referred to in Regulation 37(1), including as a result of the application of Regulation 37(2), or 37(8) and should therefore have been excluded from the concession contract award procedure;
(
c
) the Court of Justice of the European Union finds, in a procedure pursuant to Article 258 of TFEU, that the State has failed to fulfil its obligations under the Treaties by virtue of the fact that the contracting authority or contracting entity has awarded the concession contract without complying with its obligations under the Treaties and the Concessions Directive.
Reporting to Minister
45. A contracting authority or a contracting entity shall, on request being made of it by the Minister therefor, send to the Minister a report containing such information as is specified in the request in respect of—
(
a
) any concession contract within the scope of these Regulations; or
(
b
) the procedure for the award of any such concession contract.
Transitional provision
46. (1) In this Regulation—
“public works concession contract” has the same meaning as it has in the Regulations of 2006;
“Regulations of 2006” means the European Communities (Award of Public Authorities’ Contracts) Regulations 2006 (
S.I. No. 392 of 2006
).
(2) These Regulations do not apply to a concession contract award procedure commenced by a contracting authority or a contracting entity before 18 April 2016.
(3) Without prejudice to the generality of paragraph (2), these Regulations do not apply to a public works concession contract to which Chapter 1 of Part 9 of the Regulations of 2006 applies if a contracting authority (within the meaning of those Regulations), before 18 April 2016, published a notice of its proposal to award such a contract in accordance with Regulation 71 of those Regulations.
(4) Notwithstanding the revocation of the Regulations of 2006 by the Public Authority Contracts Regulations, Chapter 1 of Part 9 of the Regulations of 2006 shall continue to apply to a public works concession contract in respect of which the notice referred to in paragraph (3) was published before 18 April 2016.
Amendment of Public Authority Contracts Regulations
47. The Public Authority Contracts Regulations are amended—
(
a
) in Regulation 57—
(i) in paragraphs (1) and (2), by substituting “paragraphs (6), (13) and (18)” for “paragraphs (6), (7), (13) and (18)”, in each place where it occurs; and
(ii) in paragraph (7), by substituting “paragraph (3)” for “this Regulation”,
(
b
) in Regulation 72(4), by substituting “below each of” for “less than either of”,
and
(
c
) in Regulation 76(4), by deleting “and selection”.
Amendment of Award of Contracts by Utilities Regulations
48. The Award of Contracts by Utilities Regulations are amended—
(
a
) in Regulation 82(2)(
b
), by substituting “Regulation 67(10) and (11)” for “Regulation 67)(10)”,
(
b
) in Regulation 96(8), by substituting—
(i)“Regulations 59 to 61” for “Regulation 57”; and
(ii)“Regulation 57” for “Regulation 64”,
(
c
) in Regulation 97(3), by substituting “below each of” for “less than either of”
(
d
) in Regulation 101(4), by deleting “and selection”.
SCHEDULE 1
List of activities for works contracts
In the event of any difference of interpretation between the CPV and the NACE, the CPV nomenclature shall apply.
NACE
1
SECTION F
CONSTRUCTION
CPV code
Division
Group
Class
Subject
Notes
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.
45210000
Except: —
45213316
45220000
45231000
45232000
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 DA03 45230000
except: —
45231000 —
45232000 —
45234115
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
45250000
45262000
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.
45213316
45310000
Except
– 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.
45234115 45316000 45340000
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 DA04
45450000
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 Contracting Entities as Referred to in Regulation 5
Interpretation