S.L. 601.9 Art. 2Interpretation. S.L. 601.03 S.L. 601.03 S.L. 601.03 S.L. 601.03 S.L. 601.03 S.L. 601.07 S.L. 601.05

(1) For the purposes of these regulations -"bodies governed by public law" means bodies that have all of the following characteristics:

(a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

(b) they have legal personality; and

(c) they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those bodies or authorities; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law; "candidate" means an economic operator that has sought an invitation or has been invited to take part in a concession award procedure; "Commercial Sanction Tribunal" means the Commercial Sanction Tribunal as established under the Public Procurement Regulations;

"concessionaire" means an economic operator which has been awarded a concession;

"concession document" means any document produced or referred to by the contracting authority or contracting entity to describe or determine elements of the concession or the procedure, including the concession notice, the technical and functional requirements, proposed conditions of concession, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents; "concessions" means works or services concessions, as defined in paragraphs (a) and (b) hereunder:

(a) "works concession" means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works to one or more economic operators the consideration for which consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment;

(b) "services concession" means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in paragraph (a) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment.

The award of a works or services concession shall involve the transfer to the concessionaire of an operating risk in exploiting those works or services encompassing demand or supply risk or both. The concessionaire shall be deemed to assume operating risk where, under normal operating conditions, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject-matter of the concession. The part of the risk transferred to the concessionaire shall involve real exposure to the vagaries of the market, such that any potential estimated loss incurred by the concessionaire shall not be merely nominal or negligible;

"contracting authorities" means State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law other than those authorities, bodies or associations which pursue one of the activities referred to in Schedule 4 and award a concession for the pursuit of one of those activities; "conflicts of interest" shall at least cover any situation where staff members of the contracting authority or entity who are involved in the conduct of the concession award procedure or may influence the outcome of that procedure 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 award procedure; "Director" means the Director of Contracts as established under the Public Procurement Regulations; "economic operator" means any natural or legal person, or public entity, or a group of such persons or entities, including temporary associations of undertakings, which offers the execution of works and, or a work, the supply of products or the provision of services on the market; "electronic means" means electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

"Evaluation Committee" means boards or committees appointed by the Director with the purpose of evaluating tenders received and for making recommendations thereon; "exclusive right’ means a right granted by a competent authority of a Member State by means of any law, regulation or published administrative provision which is compatible with the Treaties, the effect of which is to limit the exercise of an activity to a single economic operator and which substantially affects the ability of other economic operators to carry out such an activity;

"execution of works" means the execution, or both the design and execution, of works related to one of the activities referred to in Schedule 2 or of a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority or contracting entity exercising a decisive influence on the type or design of the work; "General Contracts Committee" means the General Contracts Committee as established under the Public Procurement Regulations; "Government’s e-procurement platform" is an electronic platform which the Director may indicate from time to time by means of a circular;

"innovation" means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations, with the inter alia, purpose of helping to solve societal challenges or to support the Europe 2020 strategy; "local authorities" includes all authorities of the administrative units falling under NUTS 3 and smaller administrative units, as referred to in Regulation (EC) No 1059/2003;

"Minister" means the Minister responsible for finance; "modification" means any change, variation or amendment to the original terms of the concession contract including but not limited to the introduction of new conditions and to the removal or replacement of existing conditions; "Public Contracts Review Board" means the Public Contracts Review Board as established under the Public Procurement Regulations; "public undertaking" means any undertaking over which the contracting authorities may exercise, directly or indirectly, a dominant influence by virtue of their ownership thereof, their financial participation therein, or the rules which govern it; "regional authorities" include all authorities of the administrative units listed non-exhaustively in NUTS 1 and 2, as referred to in Regulation (EC) No 1059/2003; "special right" means a right granted by a competent authority of a Member State by means of any law, regulation or published administrative provision which is compatible with the Treaties the effect of which is to limit the exercise of an activity to two or more economic operators and which substantially affects the ability of other economic operators to carry out such an activity;

"tenderer" means an economic operator which has submitted a tender;

"TFEU" means the Treaty on European Union and the Treaty on the Functioning of the European Union 2012/C326/01 including any future amendment to the said Treaty;

"work" means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function; "written" or "in writing" means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information which is transmitted and stored by electronic means.

(2) For the purposes of these regulations "contracting entities" means entities which pursue one of the activities referred to in Schedule 4 and award a concession for the pursuit of one of those activities, and which are one of the following:

(a) State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law;

(b) public undertakings;

(c) entities other than those referred to in paragraphs (a) and (b) but which operate on the basis of special or exclusive rights, granted for the exercise of one of the activities referred to in Schedule 4;

(d) all entities listed under Schedule 1: Provided that entities which have been granted special or exclusive rights by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute "contracting entities" within the meaning of paragraph (c). Such procedures shall include:

(i) procurement procedures with a prior call for competition in conformity with the Public

Procurement Regulations, the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations, these regulations and the Public Procurement of Entities Operating in Water, Energy, Transport and Postal Services Sectors Regulations;

(ii) procedures pursuant to other legal acts of the Union listed in Schedule 5, ensuring adequate prior transparency for granting authorisations on the basis of objective criteria.

(3) For the purposes of the definition "public undertaking" a dominant influence on the part of the contracting authorities shall be presumed in any of the following cases, in which those authorities, directly or indirectly:

(a) hold the majority of the undertaking’s subscribed capital;

(b) control the majority of the votes attaching to shares issued by the undertaking;

(c) can appoint more than half of the undertaking’s administrative, management or supervisory body.