The Concession Contracts (Scotland) Regulations 2016

Exclusions: Concession contracts between entities within the public sector S

19.—(1) These Regulations do not apply to procurement for the award of a concession contract—

(a) by a contracting entity to a controlled person;

(b) by a controlled person to a contracting entity which controls that person; or

(c) by a controlled person to another controlled person if both such persons are controlled by the same contracting entity.

(2) For the purpose of this regulation, a person is a “controlled person” if—

(a) the contracting entity exercises over that person a control which is similar to that which it exercises over its own departments;

(b) the person carries out more than 80% of its activities in the performance of tasks entrusted to it by the contracting entity or by other persons controlled by that contracting entity; and

(c) no other person has direct private capital participation in the person with the exception of non-controlling and non-blocking forms of private capital participation required by any enactment, in conformity with the [F1 Retained] Treaties, which do not exert a decisive influence on the person being awarded the contract.

(3) For the purpose of paragraph (2)(a) a contracting entity shall be deemed to exercise control over a person similar to the control that it exercises over its own departments if—

(a) it exercises a decisive influence over the strategic objectives and significant decisions of the person; or

(b) such control is exercised by another person which is itself controlled in the same way by the contracting entity.

(4) These Regulations do not apply to procurement for the award of a concession contract by a contracting entity to a person which is jointly controlled.

(5) For the purpose of paragraph (4) a person is jointly controlled if—

(a) the contracting entity, jointly with other contracting entities, exercises over that person a control which is similar to that which the contracting entity exercises over its own departments;

(b) the person carries out more than 80% of its activities in the performance of tasks entrusted to it by the contracting entities or by other persons controlled by those entities; and

(c) no other person has direct private capital participation in the person with the exception of non-controlling and non-blocking forms of private capital participation required by any enactment, in conformity with the [F2 Retained] Treaties, which do not exert a decisive influence on the person being awarded the contract.

(6) For the purpose of paragraph (5)(a) the contracting entity shall be deemed to exercise control over a person similar to the control that the entity exercises over its own departments if—

(a) the decision making bodies of the person are composed of representatives of all participating contracting entities;

(b) those contracting entities jointly exercise a decisive influence over the strategic objectives and significant decisions of the person; and

(c) the person does not pursue any interests which are contrary to those of the contracting entities.

(7) For the purpose of paragraph (6)(a) an individual representative may represent several or all of the contracting entities.

(8) These Regulations do not apply to procurement for the award of a public contract exclusively between two or more contracting entities if—

(a) the contract is for the purpose of establishing or implementing co-operation between the contracting entities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;

(b) the implementation of that co-operation is governed solely by considerations relating to the public interest; and

(c) the contracting entities perform on the open market less than 20% of the activities concerned by the co-operation.

(9) The percentage of activities referred to in paragraphs (2)(b), (5)(b) and (8)(c), must be determined by reference to—

(a) the average turnover of the person or, as the case may be, contracting entity for the period of 3 years preceding the date of the proposed concession contract award; or

(b) an appropriate alternative activity-based measure such as costs incurred by the relevant person or contracting entity with respect to works and services for such 3 year period.

(10) If paragraph (11) applies, an alternative credible measurement of activity must be used, and for this purpose use of business projections must be treated as a credible measure.

(11) This paragraph applies if the turnover or activity based measure are not available for the preceding 3 years or are no longer relevant because of—

(a) the date on which the person or contracting entity was created or commenced activities; or

(b) a reorganisation of its activities.

(12) In this regulation, “contracting entity” means a contracting authority or a utility referred to in regulation 5(1)(a) (meaning of “utility”).

Textual Amendments

F1 Word in reg. 19(2)(c) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(13) (with sch. paras. 1-5)

F2 Word in reg. 19(5)(c) inserted (31.12.2020) by The Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468), regs. 1(2), 8(13) (with sch. paras. 1-5)

Commencement Information

I1 Reg. 19 in force at 18.4.2016, see reg. 1(2)