Regulation on the award of concessions (concessionary regulation-concession-concession)

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ConcVgV

Date of completion: 12.04.2016

Full quote:

" Concessionary Ordinance of 12 April 2016 (BGBl. I p. 624, 683) "

This Regulation shall be used for the implementation of Directive 2014 /23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 327, 22.11.2014, p. OJ No L 94, 28.3.2014, p. 1).

Footnote

(+ + + Text credits: 18.4.2016 + + +) 
(+ + + For application cf.  § § 22 (2), 22 (4), 33 (1), 33 (5), (35) + + +) 
  
(+ + + Official note from the norm-provider on EC law: 
 Implementation of the 
 EGRL 23/2014 (CELEX Nr: 32014L0023) + + +) 

  

The V was decided as Article 3 of the V v. 12.4.2016 I 624 by the Federal Government with the consent of the Bundesrat. She's gem. Article 7 (1) of this V entered into force on 18 April 2016. Unofficial table of contents

Content Summary

Section 1General provisions and Communication Subsection 1General provisions

§ 1	Subject matter and scope
§ 2	Calculation of the estimated contract value
§ 3	Duration of concessions
§ 4	Maintenance of confidentiality
§ 5	Avoidance of conflicts of interest
§ 6	Documentation and endorsement

Subsection 2Communication

§ 7	Principles of communication
§ 8	Requirements for the electronic means used
§ 9	Requirements for the use of electronic means in the award procedure
§ 10	Use of alternative electronic means in communication
§ 11	General administrative provisions

Section 2XX_ENCODE_CASE_CAPS_LOCK_On procurement procedures subsection 1General procedural rules

§ 12	General principles
§ 13	Procedural safeguards
§ 14	Prohibition of circumcration

Subsection 2Preparation of the procurement procedure

§ 15	Performance Description
§ 16	Procurement documents
§ 17	Provision of procurement documents
§ 18	Additional information on the tender documents

Subsection 3Announcements

§ 19	Concession Notice
§ 20	Exceptions to the concession notice
Section 21	Contract notice, Notice of amendments to a concession
Section 22	Concessions relating to social and other special services
Section 23	Form and modalities of publication of notices

Subsection 4competitions and surcharge

§ 24	Legal form of companies and bidding communities
Section 25	Requirements for the selection of suitable companies; Loans of aptitude
Section 26	Receipt for the suitability and non-existence of exclusion reasons
§ 27	Time limits for the receipt of participation applications and offers
§ 28	Form and transmission of requests for participation and offers
§ 29	Examination and retention of the unopened requests for participation and offers
§ 30	Information to candidates or tenderers
Section 31	Award criteria
Section 32	Abolition of procurement procedures

Section 3Execution of the concession

§ 33	Subcontracting

Section 4Transition and final provisions

Section 34	Transitional provision for electronic communication and electronic transmission of participation applications and tenders
§ 35	Electronic communications by foreign departments
§ 36	Time calculation

Section 1
General provisions and communication

Subsection 1
General provisions

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§ 1 Subject matter and scope

This Regulation provides for more detailed provisions on the procedure to be followed in respect of the award of concessions by a concessionaire under Part 4 of the Law on Competition Restrictions. Unofficial table of contents

§ 2 Calculation of the estimated contract value

(1) The concessionaire shall calculate the estimated contract value according to an objective method to be specified in the tender documents. (2) The choice of the method for the calculation of the estimated contract value may not be made with the intention of: To circumvent the application of the provisions of Part 4 of the Law on Competition Restrictions or this Regulation. In particular, a concession may not be divided in such a way that it does not fall within the scope of Part 4 of the Act against restrictions on competition, unless there are objective reasons for such a division. (3) Calculation of the estimated contract value the concessionaire assumes the expected total turnover without VAT, which the concessionaire achieves in return during the contract period

1.

for the construction or services which are the subject of the concession, and

2.

for supplies associated with these construction or services.

(4) The concessionaire shall take account, in particular, of the circumstances of each individual case, in particular:

1.

the value of all types of options and possible contract renewals,

2.

the income from fees or charges, and fines or penalties paid by users of the works or services, in so far as they are not collected on behalf of the concessionaire,

3.

payments made by the concessionaire or any other authority to the concessionaire or other financial benefits of any kind, including consideration for the fulfilment of public service obligations and State investment aid;

4.

the value of grants or other financial advantages of any kind granted by third parties for the implementation of the concession,

5.

the income from the sale of assets that are part of the concession,

6.

the value of all supplies and services provided by the concessionaire to the concessionaire, provided that they are necessary for the provision of the construction or services,

7.

Premiums or payments to candidates or bidders.

(5) A measure of time for the calculation of the estimated contract value shall be the date on which the concession notice is sent or the award procedure is initiated in any other way. By way of derogation, the date of the surcharge shall be decisive if the value of the contract is more than 20% higher than the estimated value of the contract at that time. (6) May a construction project or a planned service for the award of the contract Concessions in the form of several lots shall be taken into account in the estimated total value of all the lots. Where the estimated total value reaches or exceeds the relevant threshold, this Regulation shall apply to the award of each lot. Unofficial table of contents

§ 3 Duration of concessions

(1) The duration of concessions is limited. The concessionaire appreciates the duration of the contract depending on the construction or services required. (2) In the case of concessions over a period of more than five years, the duration of the contract may not exceed the period within which the concessionaire is entitled to: reasonable discretion to invest in the construction, maintenance and operation of the building or the provision of the services plus a return on the capital invested, taking account of the capital invested in the building of the investments needed to achieve the specific objectives of the Treaty can. The investment costs to be applied include both the initial and the investments to be made during the duration of the concession. In this context, the concessionaire may, for certain types of concession, be based on average capital expenditure and on average yields, in so far as it justifies the specificities of the type of concession concerned. Unofficial table of contents

§ 4 Maintenance of confidentiality

(1) Unless otherwise provided for in this Regulation or other legislation, the concessionaire shall not disclose any information provided by the undertakings and designated as confidential by the concessionaisers. This includes, in particular, operational and business secrets and the confidential aspects of the offers, including their assets. (2) In all communications, as well as in the exchange and storage of information, the The concessionaire shall ensure the integrity of the data and the confidentiality of the requests for participation and offers, including its facilities. Requests for participation and offers, including their facilities, as well as the documentation on the opening of the bid, must be treated confidentially even after the award procedure has been completed. (3) The concessionaire may prescribe requirements for companies, aimed at protecting the confidentiality of information in the context of the award procedure. This includes, in particular, the submission of a declaration of confidentiality. Unofficial table of contents

§ 5 Prevention of conflicts of interest

(1) Organ members and employees of the concessionaire or of a procurement service provider acting on behalf of the concessionaire who have a conflict of interest may not participate in a procurement procedure. (2) Conflict of interest exists for persons who are involved in the execution of the award procedure or who can influence the outcome of a contract award procedure and who have a direct or indirect financial, economic or personal Have an interest in their impartiality and independence within the framework of the (3) It is suspected that there is a conflict of interest where the persons referred to in paragraph 1 are concerned

1.

are candidates or tenderers,

2.

advise or otherwise support an applicant or a tenderer, or represent it as a legal representative or only in the award procedure; or

3.

employed or active

a)

in the case of an applicant or a tenderer for remuneration or as an organ member, or

b)

in the case of an undertaking entered into the contract award procedure, where the undertaking has business relations with the concessionaire and the applicant or tenderer.

(4) The presumption of paragraph 3 shall also apply to persons whose members meet the conditions laid down in paragraph 3 (1) to (3). Relatives are the fiancée, the spouse, life partner, relatives and disappeared straight line, siblings, children of the siblings, spouses and life partners of the siblings and siblings of the spouses and life partners, siblings of the parents as well as foster parents and foster children. Unofficial table of contents

§ 6 Documentation and award notice

(1) The concessionaire shall document the award procedure from the beginning on an ongoing basis in text form in accordance with § 126b of the Civil Code, insofar as this is necessary for the justification of decisions at each stage of the award procedure. These include, for example, the documentation of communication with companies and internal deliberations, preparation of the concession notice and the tender documents, the opening of requests for participation and tenders, the negotiations with the Candidates and tenderers as well as the reasons for selection decisions and the surcharge. (2) The concessionaire shall prepare a note in text form in accordance with § 126b of the Civil Code through each award procedure. This endorsement shall include at least the following:

1.

the name and address of the concessionaire, as well as the subject and contract value of the concession;

2.

the names of the candidates or tenderers considered and the reasons for their selection;

3.

the applications and tenders not taken into account and the names of the candidates or tenderers who have not been taken into account and the reasons for their failure to take account,

4.

the name of the successful tenderer and the reasons for the selection of his tender, and, if known, the share of the concession which the successful tenderer intends to pass on to third parties and the names of the subcontractors,

5.

the grounds on which the concessionaire has renounced the award of a concession,

6.

the reasons for which others have been used as electronic means for the submission of tenders; and

7.

Information on conflicts of interest identified and remedial measures taken.

(3) The documentation, the endorsement, the requests to participate and the tenders, including their annexes, shall be treated and kept confidential until the end of the term of the contract, but at least for three years from the date of the surcharge. (4) § 4 shall remain unaffected.

Subsection 2
Communication

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§ 7 Principles of communication

(1) In order to send, receive, forward and store data in a contract award procedure, the concessionaire and the undertakings shall, in principle, use equipment and programmes for electronic data transmission (electronic means). (2) Communication can take place orally if it does not affect the tender documents, requests to participate or the offers and it is documented sufficiently and appropriately. (3) The concessionaire can indicate to each company the indication of a Unique company name and an electronic address (registration). The concessionaire may not require registration for access to the concessionary notice and to the tender documents; a voluntary registration is permitted.

Footnote

(+ + + § 7: For application, see § 35 + + +) Unofficial table of contents

Section 8 Requirements for the electronic means used

(1) The concessionaire shall establish the necessary level of security for the electronic means. Electronic means used by the concessionaire to receive requests for participation and offers shall ensure that:

1.

the time and the date of the data reception are to be determined,

2.

no pre-fresh access to the received data is possible,

3.

the date for the initial access to the received data may be fixed or modified only by the authorized person or persons concerned,

4.

only the beneficiaries have access to the data received or to a part thereof,

5.

only the authorized third parties may grant access to the data received or to a part thereof,

6.

data received shall not be transmitted to unauthorised persons; and

7.

Infringements or attempted infringements of the requirements referred to in points 1 to 6 may be clearly identified.

(2) The electronic means used by the concessionaire to receive requests for participation and offers must have a single data exchange interface. It is the applicable IT interoperability and IT security standards of information technology in accordance with § 3 (1) of the Treaty on the establishment of the IT Planning Council and on the basis of the cooperation in the use of the Information technology to be used by the federal and state administrations on 1 April 2010.

Footnote

(+ + + § 8: For application cf. § 35 + + +) Unofficial table of contents

§ 9 Requirements for the use of electronic means in the award procedure

(1) Electronic means and their technical characteristics must be generally available, non-discriminatory and compatible with information and communication technology equipment and programmes widely used. They must not unduly restrict the access of undertakings to the award procedure. The concessionaire guarantees the barrier-free design of the electronic funds in accordance with § § 4 and 11 of the Disabled Equal Opportunities Act of 27 April 2002 (BGBl. 1467, 1468), as amended. (2) The concessionaire uses only electronic means for the transmission, reception, forwarding and storage of data, which are the integrity, confidentiality and authenticity of the data. of the data. (3) The concessionaire must provide the company with all the necessary information on

1.

the electronic means used in an award procedure,

2.

the technical parameters for the submission of requests for participation and tenders using electronic means, and

3.

the encryption and time-detection methods used.

Footnote

(+ + + § 9: For application, see § 35 + + +) Unofficial table of contents

§ 10 Use of alternative electronic means in communication

The concessionaire may require the use of electronic means, which are not generally available (alternative electronic means), in the procurement procedure if the concessionaire is

1.

to grant, during the entire tendering procedure, free, unrestricted, full and direct access to these alternative electronic means under an Internet address; and

2.

using these alternative electronic means themselves.

Footnote

(+ + + § 10: For application, see § 35 + + +) Unofficial table of contents

§ 11 General administrative provisions

With the consent of the Federal Council, the Federal Government may adopt general administrative provisions on the electronic means to be used (basic services for electronic concession) and on technical standards to be complied with.

Footnote

(+ + + § 11: For application, see § 35 + + +)

Section 2
Procurement procedure

Subsection 1
General procedural rules

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§ 12 General principles

(1) The concessionaire may freely configure the procedure for the award of concessions in accordance with this Regulation. The concessionaire can align the procedure with the rules of the procurement regulation at the end of the negotiation procedure with participation competition. (2) The procedure can be carried out in one or more stages. The concessionaire may negotiate with candidates and tenderers. During the negotiations, the object of the concession, the minimum requirements for the offer and the award criteria may not be changed. (3) The concessionaire may not provide candidates or tenderers with information on the transfer of information. discriminate. Unofficial table of contents

§ 13 procedural guarantees

(1) concessions shall be awarded on the basis of the award criteria set out by the concessionaire in accordance with section 31, provided that all the following conditions are met:

1.

The tenderer shall comply with the eligibility criteria laid down by the concessionaire and other conditions of participation, as well as the minimum minimum requirements laid down, in particular technical, physical, functional and legal conditions and characteristics that each offer should fulfil, and

2.

the offeror is not subject to § 154 (2) in conjunction with Section 125 of the Act against restrictions on competition in accordance with Section 154 (2) in conjunction with § § 123 and 124 of the Act against restrictions on competition from participation in the Award procedures excluded.

(2) The concessionaire shall provide the following information:

1.

in the concession notice in accordance with § 19 a description of the concession as well as the conditions of participation and

2.

in the concession notice referred to in § 19, the invitation to tender or in other tender documents, the award criteria and the minimum requirements laid down where applicable.

(3) The concessionaire shall transmit to the participants in an award procedure an organisational and timetable of the award procedure, including a non-binding closing date. The concessionaire shall communicate all changes to all participants. If these changes concern the contents of the concession notice, they shall be notified. (4) The number of candidates or tenders may be limited to an appropriate number, provided that this is done on the basis of objective criteria and in a transparent manner is happening. The number of candidates or tenderers invited to participate or to tender must be sufficiently high to ensure that competition is ensured. Unofficial table of contents

§ 14 Ban on circumcration

The procedure for the award of a concession may not be designed in such a way as to be excluded from the scope of Part 4 of the Act against restrictions on competition, or to the exclusion of certain undertakings or certain works, Deliveries or services are inadmissible or disadvantaged in an unauthorised manner.

Subsection 2
Preparation of the procurement procedure

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§ 15 Performance Description

(1) In the service description, the characteristics required for the contractual construction or services are determined by technical and functional requirements. The concessionaire shall, in accordance with Section 152 (1) of the Act, describe the performance description in conjunction with Article 121 (1) and (3) of the Act against restrictions on competition in such a way that all undertakings are granted equal access to the procurement procedure and the opening up of the national procurement market to competition is not hampered in an unjustified manner. (2) The characteristics can relate to aspects of quality and innovation, as well as to social and environmental aspects. They may also refer to the process or method of production or provision of the construction or services or to a different stage in the life cycle of the object of the concession, including the production and supply chain, even if such factors are not material elements of the subject-matter of the concession, provided that these characteristics are related to the subject-matter of the concession and to the value and procurement objectives of the concession. (3) In the Performance description shall not apply to a particular production or origin or to a specific product special procedures which characterizes the products or services of a given undertaking, or which are referred to industrial property rights, types or production, provided that certain undertakings or certain types of production are subject to certain conditions: Products are favoured or excluded, unless this reference is justified by the concession subject. Such references shall be permitted on an exceptional basis if, otherwise, the object of the concession may not be described in a sufficiently precise and intelligible manner; these references shall be accompanied by the words "or equivalent". are not rejected on the grounds that the construction or services offered do not meet the technical and functional requirements set out in the description of the performance, if the tenderer in his tender is using appropriate means has demonstrated that the solutions it proposes are Meet requirements in an equivalent manner. Unofficial table of contents

Section 16 Award documents

The tender documents shall include any document drawn up by the concessionaire or to which it relates to describe or determine the elements of the concession or the procedure. These include, in particular, the description of the performance, the draft terms of the contract, templates for the submission of documents by candidates or tenderers, as well as information on general obligations. Unofficial table of contents

Section 17 Provision of award documents

(1) The concessionaire shall indicate in the concession notice or, if the concession notice does not include an invitation to tender, an electronic address in the invitation to tender, under which the concessionaire shall be informed. (2) The concessionaire may submit the award documents in another appropriate way if, on the basis of duly substantiated circumstances, the award documents are not exceptional safety or technical reasons or due to the special nature of the The sensitivity of commercial information, which requires a very high level of data protection, cannot be offered free of charge, full and complete electronic access. In such a case, the concessionaire shall indicate in the concession notice or the invitation to tender that the tender documents may be submitted in another appropriate way and that the time limit for receipt of tenders shall be given. is extended. Unofficial table of contents

Section 18 Additional information on the tender documents

The concessionaire shall provide all undertakings which participate in the award procedure at the latest six days before the closing date for the receipt of tenders for additional information on the tender documents, provided that the undertakings are: have requested additional information in good time.

Subsection 3
Notices

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Section 19 Concession Notice

(1) The concessionaire shall notify its intention to award a concession in a concession notice. (2) The concession notice shall be published in accordance with the model set out in Annex XXI of the Implementing Regulation (EU) 2015/1986 of the Commission of 11 July 1986. November 2015 on the introduction of standard forms for the publication of public procurement notices and repealing Implementing Regulation (EU) No 842/2011, as amended (OJ L 327, 28.12.2015, p. 1). (3) In the concession notice, the concessionaire shall designate the contracting authority to which the undertakings may apply for the verification of the infringements of the award of contracts. Unofficial table of contents

Section 20 Exceptions to the concession notice

(1) A concession notice may be waited if the construction or service can only be provided by a specific undertaking, because:

1.

the aim of the concession is to create or acquire a unique work of art or a unique artistic performance,

2.

competition cannot arise for technical reasons,

3.

is an exclusive right, or

4.

Rights of intellectual property or other exclusive rights as defined in Section 101 (2) in conjunction with Section 100 (2) sentence 1 of the Law against Competition Restrictions.

Sentence 1 (2) to (4) shall apply only if there is no reasonable alternative or alternative solution and the lack of competition is not the result of an artificial contraction of the parameters of the award of the concession. (2) The concession notice may be waited if no or no appropriate requests for participation or offers have been submitted in a previous award procedure, unless the original terms of the concession contract have been submitted. and the European Commission, on request, a procedural report is presented. Unsuitable

1.

a request for participation if:

a)

the applicant in accordance with Section 154 (2) in conjunction with § § 123 to 126 of the Act against restrictions on competition due to a mandatory or optional exclusion reason could be excluded or excluded or the applicant could does not comply with the eligibility criteria laid down in Article 152 (2) in conjunction with Section 122 of the Law on Competition Restrictions; or

b)

the application for participation contains an unsuitable offer, because, without any substantial modification, the offer does not seem to correspond to the requirements and requirements of the concessionaire mentioned in the tender documents, and

2.

an offer if, without any substantial modification, it appears to be unable to meet the requirements and requirements of the concessionaire referred to in the contract award documents.

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Section 21 Award notice, notice of amendments to a concession

(1) At the latest 48 days after the award of a concession, the concessionaire shall send a contract notice with the result of the award procedure to the Office for Publications of the European Union. The contract notice shall be drawn up in accordance with the model set out in Annex XXII of the Implementing Regulation (EU) 2015/1986. (2) notices of amendments to a concession pursuant to Section 154 (3) in conjunction with Section 132 (5) of the Law against Restrictions on competition shall be drawn up in accordance with the model set out in Annex XVII of the Implementing Regulation (EU) 2015/1986.

Footnote

(+ + + § 21 (1): For application, see Section 22 (2) + + +) (+ + + § 21 para. 2: For application see Section 22 (4) + + +) Unofficial table of contents

Section 22 Concessions relating to social and other special services

(1) The concession provider shall communicate its intention to award a concession for the provision of social services or other special services within the meaning of Section 153 of the Law on Competition Restrictions, by means of pre-information. (2) Article 21 (1) shall apply to award notices. The concessionaire may summarise notices of award notices on a quarterly basis. In this case, the publication of the summary notices shall be made within 48 days of the end of the quarter. (3) For notices referred to in paragraphs 1 and 2, the model shall be in accordance with Annex XX to the Implementing Regulation. (EU) 2015/1986. (4) To be notified of changes to a concession pursuant to Section 154 (3) in conjunction with Section 132 (5) of the Act against restrictions on competition, Article 21 (2) shall apply. Unofficial table of contents

Section 23 Form and modalities of publication of notices

(1) Concession announcements, preliminary information, notices of award notices and notices of changes to a concession (notices) shall be transmitted by electronic means to the Publications Office of the European Union. (2) Proof of publication serves to confirm the receipt of the notice and the publication of the information transmitted by the concessionaire from the Publications Office of the European Union. (3) notices may be published. no less than 48 hours after the confirmation of the Office of Publications of the European Union on the publication of information transmitted at national level are published. The publication may contain only the information contained in the notice sent to the Publications Office of the European Union. The national notice shall indicate the date of transmission to the Office for Publications of the European Union.

Subsection 4
Selection procedure and award

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Section 24 Legal form of companies and bidders

Applicants or tenderers who, in accordance with the legislation of the State in which they are established, are entitled to provide the service in question shall not be rejected solely on the grounds that they are in accordance with the provisions of the German law. Legislation must be a natural or legal person. Legal persons may be required, in their application for participation or in their bid, to indicate the names and professional qualifications of the persons who are responsible for the implementation of the concession contract. (2) Candidates and bidders are to be treated as individual applicants and bidders. The concessionaire may not require that groups of undertakings have to have a specific legal form in order to submit an application for participation or to submit an offer. Where necessary, the concessionaire may, in the tender documents, lay down conditions for groups of undertakings to fulfil the eligibility criteria and to carry out the concession, and such conditions shall be subject to factual reasons. (3) Without prejudice to paragraph 2, the concessionaire may require a bidding community to adopt a specific legal form after the award of the award, insofar as this is necessary for the proper implementation of the concession. is required. Unofficial table of contents

§ 25 Requirements for the selection of suitable companies; Loan lending

(1) The concessionaire shall determine the eligibility criteria in accordance with § 152 (2) in conjunction with Section 122 of the Act against restrictions on competition and shall specify the suitability criteria in the concession notice. If a concession notice pursuant to § 20 is not required, the eligibility criteria must be included in the tender documents. (2) The suitability criteria must be non-discriminatory and serve the purpose,

1.

ensure that the concessionaire is capable of carrying out the concession in the light of the concession subject, and

2.

to ensure competition.

(3) In order to meet the eligibility criteria, a company may include capacities of other companies, irrespective of the legal relationship between them and those undertakings. With regard to financial standing, the concessionaire may require undertakings to be jointly liable for the implementation of the contract.

Footnote

(+ + + § 25 (3): For application, see Section 33 (1) + + +) Unofficial table of contents

Section 26 evidence of the suitability and non-existence of exclusion grounds

(1) The concessionaire shall examine the suitability and non-existence of grounds of exclusion on the basis of the submission of statements of self or of evidence. (2) The concession notice shall specify which documents shall be used to determine the suitability and to prove that there are no grounds for exclusion. If a concession notice in accordance with § 20 is not required, these statements shall be included in the tender documents. (3) In the case of the inclusion of capacities of other companies pursuant to § 25 (3), concessionists may require proof that: the funds necessary for the fulfilment of the eligibility criteria will be available throughout the concession period. Unofficial table of contents

§ 27 Deadlines for the receipt of participation applications and offers

(1) The concessionaire shall, when setting time limits, take account, in particular, of the complexity of the concession and the time required for the submission of requests for participation and for the preparation of tenders. (2) In particular, long periods must be respected where a visit to the site or a personal inspection of non-transmitted annexes to the contract documents is required on the spot. (3) The minimum time limit for the receipt of requests for participation with or no offer shall be 30 days from the day following the transmission of the Concession notice. (4) If the procedure takes place in several stages, the minimum time limit for the receipt of initial bid shall be 22 days from the day following the invitation to tender. The concessionaire may reduce the time limit for the receipt of tenders by five days, if they are submitted by electronic means. Unofficial table of contents

Section 28 Form and transmission of requests for participation and offers

(1) Applicants or tenderers shall, in principle, submit their requests for participation and offers in text form in accordance with § 126b of the Civil Code using electronic means. (2) The concessionaire is not obliged to submit the submission of Requests for participation and offers by means of electronic means if the electronic means required for submission apply to one of the reasons referred to in Article 17 (2) or, at the same time, to physical or scale-up models , which cannot be transmitted electronically. In such cases, the communication shall be carried out by post, or by another appropriate means, or in combination, by postal or other appropriate means, and by the use of electronic means. The concessionaire shall indicate in the award notice the reasons why tenders may be submitted by means of other than electronic means. (3) The concessionaire shall examine whether the data to be transmitted have increased requirements for the security of the Provide data transfer. To the extent that it is necessary, the concessionaire may request that requests for participation and offers with an advanced electronic signature be made pursuant to § 2, point 2 of the Signature Act of 16 May 2001 (BGBl. 876), as last amended by Article 4 (111) of the Law of 7 August 2013 (BGBl). I p. 3154), or with a qualified electronic signature according to § 2 (3) of the Signature Act of 16 May 2001 (BGBl. 876), as last amended by Article 4 (111) of the Law of 7 August 2013 (BGBl). 4) The concessionaire may decide that tenders must be submitted by means of other than electronic means if they contain particularly sensitive data which, when used in general, are used in the available or alternative electronic means cannot be adequately protected. The concessionaire shall indicate in the award notice the reasons why it considers the submission of tenders to be necessary with the aid of other than electronic means.

Footnote

(+ + + § 28: For application cf. § 35 + + +) Unofficial table of contents

§ 29 Examination and retention of the unopened requests for participation and offers

The concessionaire shall examine the content of the requests for participation and tenders only after the deadline for submission of the tenders. The integrity and confidentiality of the data shall be ensured in the case of the storage of the unopened requests for participation and offers. Unofficial table of contents

Section 30Information of candidates or tenderers

(1) Without prejudice to Section 134 of the Act against restrictions on competition, the concessionaire shall immediately inform all candidates or tenderers of the decisions relating to the surcharge, including the name of the successful tenderer, who shall: Reasons for the rejection of their requests for participation or tenders, as well as the reasons for a decision not to award concessions for which a concession notice has been published or to re-initiate the proceedings. (2) On request of the Affected persons in text form according to § 126b of the Civil Code shall inform the The concessionaire shall, in any event within 15 days, inform any tenderer who has submitted a tender on the characteristics and relative advantages of the tender selected. (3) The concessionaire may decide to take certain steps in paragraph 1 shall not be notified of the concession, in so far as the disclosure of such information

1.

to obstruct law enforcement,

2.

to run counter to the public interest in any other way,

3.

harm the legitimate commercial interests of undertakings or affect fair competition between them

Would. Unofficial table of contents

Section 31 award criteria

(1) The award criteria in accordance with Article 152 (3) of the Act against restrictions on competition must be stated in descending order of precedence. (2) Includes an offer of an innovative solution with exceptionally high functional performance, which is The order of the award criteria could not be foreseen. In this case, the concessionaire shall inform the tenderers of the amended sequence of the award criteria and, while respecting the minimum period laid down in the first sentence of Article 27 (4), shall publish a new invitation to tender. If the award criteria have been published at the same time as the concession notice, a new concession notice shall be published in accordance with the minimum period laid down in Article 27 (3). (3) The concessionaire shall check in accordance with § § 27 (3). Article 152 (3) of the Act against restrictions on competition, whether the tenders actually meet the criteria for the award of the award. Unofficial table of contents

Section 32 Repeal of award procedures

(1) The concessionaire shall be entitled to withdraw all or part of an award procedure if:

1.

has not received an offer which meets the conditions,

2.

has substantially changed the basis of the award procedure,

3.

no economic result has been achieved, or

4.

there are other serious reasons.

In principle, the concessionaire is not obliged to award the contract. (2) The concessioner shall immediately inform the candidates or tenderers of the reasons for his decision, after the award procedure has been lifted, to which: To dispense with the award of a concession or to initiate the procedure again. Upon request, he shall inform them, in text form, in accordance with § 126b of the Civil Code.

Section 3
Execution of the concession

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Section 33 Award of subcontracting

(1) The concessionaire may request undertakings in the concession notice or the tender documents to supply the parts of the concession which they intend to award to third parties in the course of subcontracting and, where appropriate, in the case of a tender offer. shall be presumed to designate the subcontractors provided for. Prior to the award of the contract, the concessionaire may request the tenderers whose tenders are shortlisted to designate the subcontractors and to prove that they have the necessary resources available to them. . If an applicant or tenderer intends to award a part of the concession to a third party by way of subcontracting and, at the same time, with a view to its performance, it is based on the capacities of that third party, Article 25 (1) (a) 3. The liability of the principal contractor with respect to the concessionaire remains unaffected by paragraph 1. (3) The concessionaire of a construction concession which, in the context of this construction concession, contracts contracts to third parties whose subject matter is the provision of of construction services within the meaning of Section 103 (3) of the Law against In general, the restrictions on competition are part B of the contract and contract regulations for construction services, the general terms and conditions for the execution of works, and part C of the contract award and contract regulations for construction services, which are (4) In the case of construction concessions and in respect of services to be provided under the authority of the concessionaire under its direct supervision, , the concessionaire shall write to the concessionaire in the Under the terms of the contract, at the latest at the beginning of the implementation of the concession, it shall notify the subcontractors of the names, contact details and legal representatives and that each of the subcontractors shall enter into force in the course of the implementation of the concession. To be notified of a change at the level of the subcontractors. The concessionaire may also provide the notification requirements as contractual conditions for the award of service concessions in respect of which the services are not included in the establishment of the concessionaire under its direct supervision. shall be provided. In addition, the notification obligations can also be extended to suppliers who are involved in construction or service concessions as well as to further stages in the chain of subcontractors. (5) For subcontractors of all levels § § Article 152 (4), in conjunction with Section 128 (1) of the Act, against restrictions on competition. (6) The concessionaire shall verify, before the award of the award, whether there are grounds for the exclusion of subcontractors. If there are compelling grounds for exclusion, the concessionaire requires that the subcontractor be replaced, if there are any optional grounds for exclusion, the concessionaire may require that the subcontractor be replaced. The concessionaire may set a time limit for the applicant or tenderer.

Section 4
Transitional and final provisions

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§ 34 Transitional provision for electronic communication and electronic transmission of participation applications and offers

By way of derogation from Section 28 (1), the concessionaire may be granted up to 18 years of age. October 2018, the submission of requests for participation and offers shall also be requested by post, by any other appropriate means, by fax or by the combination of these funds. The same shall apply to other communication within the meaning of Section 7 (1), insofar as it does not affect the transmission of notices pursuant to § 23 and the provision of the award documents in accordance with § 17. Unofficial table of contents

§ 35 Electronic communications by foreign departments

Foreign services are not obliged to apply electronic means in accordance with § § 7 to 11 and 28 of this Regulation when awarding concessions. Unofficial table of contents

§ 36 Calculation of time limits

The calculation of the time limits provided for in this Regulation shall be determined in accordance with Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 laying down the rules applicable to periods, dates and time limits (OJ L 327, 31.12.1971, p. OJ No L 124, 8.6.1971, p. 1).