What is Act No. 139 / 2006 Coll.?

Law No. 139 / 2006 Coll., on concession contracts and concession procedures (concession law) — Law on concession contracts and concession procedures (concession law).

When it became Act No. 139 / 2006 Coll. effectiveness?

Act No. 139 / 2006 Coll. became effective 01.07.2006.

Is Act No. 139 / 2006 Coll. still valid?

Yes, Act No. 139 / 2006 Coll. is still valid and effective.

Act No. 139 / 2006 Coll. - Law on concession contracts and concessi...

139

THE LAW

of 14 March 2006

on concession contracts and concession procedures (concession law)

Parliament has decided on this law of the Czech Republic:

ČÁST PRVNÍ

GENERAL PROVISIONS

Subject matter and basic terms

§ 1

Subject matter

(1) This law regulates the conditions and procedure of the contracting authority for the conclusion of concession contracts in the framework of cooperation between contracting authorities and other bodies, provided that such conditions and procedure do not provide for specific legislation1). This law further incorporates the relevant provisions of the European Community2).

§ 2

Contracting authority

(1) For the purposes of this Act, the contracting authority (hereinafter the contracting authority) means:

(a) the Czech Republic4),

(b) a state contribution organisation;

(c) a territorial body or a contribution organisation for which the function of the body is exercised by the local self-governing body (5);

(d) another legal person where:

1. has been established or established to meet needs of public interest which are not of an industrial or commercial nature; and

2. is financed mainly by a State or another contracting authority, or is controlled by a State or another contracting entity, or by a State or another contracting entity, more than half of the members in its statutory, administrative, supervisory or supervisory body are appointed or elected.

(2) Any connection between contracting authorities or contracting entities and other persons shall also be considered as contracting entities for the purpose of a joint procedure for the selection of the concessionaire, provided that at least one of the parties to the concentration is the contracting entity referred to in paragraph 1. In such a case, they shall conclude a written contract before the start of the concession procedure, which shall lay down the mutual rights and obligations relating to the concession procedure and lay down the procedure for dealing with third parties.

§ 3

General exemptions from the law

This law shall not apply to contracts concluded by contracting entities where:

(a) their object is classified information6) or the publication of concession documents could jeopardise the protection of classified information;

(b) concession contracts which, under specific legislation, are linked to special security measures (7), or are linked to the protection of the essential security interests of the state8),

(c) their conclusion is governed by specific procedural rules and is concluded following an international treaty relating to the residence of the armed forces of other States in the territory of the Czech Republic or the deployment of the armed forces of the Czech Republic in the territory of other States bound by the Czech Republic and declared in the Collection of Laws or in the Collection of International Treaties;

(d) their closure shall be subject to the rules laid down in specific procedures of international organisations;

(e) are concluded by the contracting authority following an international contract concluded between the Czech Republic and a Member State other than a Member State of the European Union and includes services or works intended for joint implementation or use by the contracting parties; The Czech Republic shall communicate the conclusion of such a contract to the Commission of the European Communities,

(f) their object is the services provided by the Czech National Bank in the exercise of its competence under special legislation9),

(g) their object is the production of public telecommunications networks;

(h) their subject matter is a public service obligation under special legislation10); or

(i) their object is research, development and innovationservices (10a), except where the cost of carrying out research, development and innovation is exclusively borne by the contracting authority and the contracting entity is the sole user of the results of research, development and innovation.

§ 3a

Principles of the contracting authority's procedure

The contracting authority shall comply with the principles of transparency, equal treatment and non-discrimination when applying this law.

ČÁST DRUHÁ

CONCESSION

HLAVA I

GENERAL PROVISIONS

§ 4

Before the start of the concession procedure, the contracting authority shall determine the estimated value of the subject matter of the concession contract and the expected total income of the concessionaire resulting from the implementation of the concession contract (hereinafter referred to as "the anticipated income of the concessionaire '); the method of calculating the estimated value of the subject matter of the concession contract and the concessionaire's anticipated income shall be laid down in the implementing legislation.

§ 5

(1) The contracting authority shall select the concessionaries for the conclusion of the concession contract in the concession procedure.

(2) The contracting authority does not have to follow this part of the law if the anticipated income of the concessionaire is less than CZK 20 000 000, without value added tax, but the contracting authority is obliged to comply with the principles set out in Section 3a.

HLAVA II

CONCESSION

Initiation of the concession procedure

§ 6

(1) Concessions are opened by the publication of a notice of initiation of the concession procedure.

(2) The contracting authority may cancel the concession procedure provided it is reserved in the notification referred to in paragraph 1. In addition, the relevant provisions of the Public Procurement Act on the cancellation of the contract procedure, including the grounds for the cancellation, also apply to the cancellation of the concession procedure.

(3) The relevant provisions of the Act on Public Procurement on Electronic Instruments and Electronic Instruments apply mutatis mutandis to electronic communications in the concession procedure.

§ 7

(1) The notice of initiation of the concession procedure shall call upon an unlimited number of suppliers to submit applications to participate in the concession procedure and to demonstrate the fulfilment of the required qualification; the notice shall be published in accordance with Article 31. In the case of the procedure referred to in paragraph 5 (a), the contracting authority shall indicate in the notification the sub-criteria for evaluation of tenders, including their weighting; in the case of the procedure referred to in paragraph 5 (b), the contracting authority shall specify the provisional sub-criteria, including their weighting.

(2) The time limit for receipt of an application for participation in a concession procedure may not be less than 52 days from the date of publication of the notice of initiation of the concession procedure.

(3) The provisions of the Public Procurement Act, the proof of which is required by the contracting authority of the supplier and the exclusion thereof, apply mutatis mutandis to the assessment and exclusion of the qualification of suppliers.

(4) The contracting authority may limit the number of suppliers who have demonstrated that the qualification has been fulfilled, where indicated in the notice of initiation of the concession procedure, including the indication of the criteria for their limitation; at least three suppliers shall be invited to submit a tender or to participate in a concession dialogue in this case.

(5) After assessing the qualification of suppliers and any limitation on their number, the contracting authority shall:

(a) invite suppliers who have demonstrated that the qualification has been met to submit tenders (Paragraph 8), which may continue to negotiate such tenders (Paragraph 9); or

(b) invite suppliers who have demonstrated their qualifications to participate in the concession dialogue (Section 10), the purpose of which is to find one or more suitable solutions to the concession project; after finding one or more suitable solutions, the contracting authority shall act in accordance with point (a).

(6) Where the contracting authority is referred to in paragraph 5 (b), it shall state this in the notice of initiation of the concession procedure.

§ 8

Invitation to tender

(1) The written invitation to tender pursuant to Article 7 (5) (a) in the event that the contracting authority does not discuss the tenders submitted shall contain at least:

(a) the concession documents or the conditions for granting them; the provisions of the Public Procurement Act apply mutatis mutandis to the content of the concession documents;

(b) a time limit for the submission of tenders which may not be less than 40 days from the date of dispatch of the invitation to tender; where the contracting authority does not send the supplier all the documents necessary for the processing of the tender, together with the invitation to tender, or where tenders can be submitted only after the examination of the place of performance, the contracting authority shall extend the time limit for the submission of tenders accordingly,

(c) the place where the tender is submitted; and

(d) the language in which the tender is to be submitted.

(2) Where the contracting authority decides to negotiate tenders submitted pursuant to Article 7 (5) (a), the written invitation referred to in paragraph 1 shall also contain:

(a) the manner in which tenders are to be negotiated, in particular whether all suppliers are to be dealt with simultaneously or separately;

(b) the method of selecting suppliers for further negotiations where the contracting authority decides to gradually restrict their number; Paragraph 7 (4) of the sentence after the semicolon shall apply mutatis mutandis.

(3) The relevant provisions of the Public Procurement Act apply mutatis mutandis to the procurement deadline, technical conditions, classification of the subject matter of the concession contract, provision of concession documentation to suppliers, additional information on the terms of the contract and inspection of the place of performance.

(4) The relevant provisions of the Public Procurement Act apply mutatis mutandis to the submission of tenders and their content.

§ 9

Negotiations on tenders

(1) Where the contracting authority decides to further negotiate tenders, it shall invite in writing all suppliers not excluded from participation in the concession procedure to negotiate tenders.

(2) Where further negotiations take place, the provisions of the Public Procurement Act on the negotiation of tenders at each stage of the negotiated procedure shall apply mutatis mutandis to the conduct of these negotiations, with publication; the relevant provisions of the Public Procurement Act apply mutatis mutandis to the modification of the draft concession contract.

§ 10

Invitation to participate in the concession dialogue

(1) The written call for participation in the concession dialogue referred to in Article 7 (5) (b) shall include at least:

(a) a description of the subject matter of the negotiations, which shall in particular specify the needs and requirements of the contracting authority for the subject matter of the concession contract;

(b) information on the location and time of the hearing;

(c) information on the language of the hearing.

(2) The provisions of the Public Procurement Act on the conduct of a competitive dialogue apply mutatis mutandis to the procedure of the contracting authority in seeking an appropriate solution in the concession dialogue.

(3) The contracting authority shall inform in writing all suppliers invited to participate in the concession dialogue of the conclusion of the negotiations in the concession dialogue and shall invite them to submit tenders; the invitation referred to in Article 8 shall also specify the sub-criteria for the evaluation of tenders, including their weighting.

§ 11

Assessment and evaluation of tenders

(1) The relevant provisions of the Public Procurement Act apply mutatis mutandis to the opening of envelopes with tenders and the evaluation committee.

(2) For the assessment and evaluation of tenders, the relevant provisions of the Public Procurement Act apply mutatis mutandis, with only the economic advantage of the tender being the assessment criterion for the selection of the concessionaire.

HLAVA III

SELECTION OF CONCESSION

§ 12

(1) On the basis of the results of the concession procedure, the contracting authority shall select the supplier whose tender has been assessed as the most economically advantageous for the conclusion of the concession contract.

(2) The provisions on the notification of the selection of the concessionaire shall apply mutatis mutandis to the notification of the selection of the most appropriate tender of the Public Procurement Act.

(3) The relevant provisions of the Public Procurement Act shall apply mutatis mutandis to the submission of objections, the manner in which they are dealt with and the prohibition on the conclusion of a concession contract.

(4) For the conclusion of a concession contract, the provisions of the Public Procurement Act apply mutatis mutandis.

§ 13

Conclusion of a concession contract in a special case

The contracting authority may conclude a concession contract instead of a selected supplier with a legal person who has not participated in the concession procedure if:

(a) such an option has been indicated in the tender of the selected supplier, including the legal form, the minimum proposed capital, the proposed ownership structure and the proposal to fill the authorities of such a person;

(b) it is directly or indirectly controlled by the contracting authority or the selected contractor at the time of conclusion of the concession contract (11);

(c) its purpose is to implement the subject matter of the concession contract; and

(d) meets the basic qualification criteria.

HLAVA IV

SUBDOCUMENTS

§ 14

(1) In the case of a concession contract with an estimated value of its subject matter higher than the financial limit laid down in the implementing legislation, the main object of which is works (hereinafter referred to as the "above-limit concession contract for works'), the contracting authority may require that:

(a) the concession holder has subcontracted at least 30% of the estimated value of the works to third parties; the minimum amount of the share shall be indicated in the concession contract; or

(b) the supplier has indicated in the offer the expected percentage of the expected value of the works which it intends to subcontract to third parties.

(2) The requirements referred to in paragraph 1 shall be indicated by the contracting authority in the notice of initiation of the concession procedure.

§ 15

(1) Concessionary

(a) it is not a contracting entity under the Public Procurement Act, if it is a contract for works exceeding the limit of the concession contract; and

(b) intends to give a third party part of the performance of the works to the extent that the minimum financial limit laid down by the implementing legislation is not met and, unless otherwise, the conditions for the use of the negotiated procedure without publication under the Public Procurement Act (3) are met, it shall publish that intention, with a time limit of at least 40 days from the date of the invitation to tender. For the publication of the notice, the concessionaire shall use the form in accordance with the directly applicable regulation of the European Communities.

(2) For the purposes of paragraph 1, persons controlling the concessionaries and persons controlled by them (11) shall not be considered a third party; the full list of those persons is part of the application to participate in the concession procedure. The supplier, and after the concession contract has been concluded, shall update this list without undue delay after changes in their relations have occurred.

ČÁST TŘETÍ

CONCESSION TREATY

§ 16

(1) The concessionaire undertakes to provide services or to carry out work and the contracting entity undertakes to allow the concessionaire to benefit from the provision of services or the use of the work carried out, together with, where appropriate, the provision of part of the performance in cash.

(2) A concessionaire shall bear a substantial part of the risks associated with the taking of benefits arising from the provision of services or the exploitation of the work carried out; the allocation of other risks between contracting entities and dealers shall be laid down in a concession contract.

(3) The Concession Agreement contains:

(a) the reasons on the basis of which the contract may be terminated early; and

(b) the definition of the legal relations of the Contracting Parties with the assets intended to implement the concession contract, including the rules on their settlement, where the contract referred to in (a) is terminated.

(4) Concessions may be concluded only for a fixed period.

(5) The contract must be written and the parties must be on the same list.

(6) The Concession Agreement is further governed by the relevant provisions of the Civil Code.

§ 17

(1) Concessions may be concluded by the contracting authority, unless this is excluded by specific legislation.

(2) A concessionaire may not conclude additional concession contracts for the subject matter of a concession contract or part thereof.

§ 18

In a concession contract, the contracting authority may allow the concessionaire to collect payments from users for services provided only if the contracting authority itself would have the right to collect such payments from users.

§ 19

(1) When concluding concession contracts, contracting entities may commit themselves to future performance which is not covered by the budget of the contracting authority in force at the time of conclusion of the concession contract.

(2) If the concessionaire is keeping accounts under special legislation12), he shall draw up a schedule of accounts in such a way that the accounts include a breakdown of the items by activity linked to the subject of the concession contract and other activities covered by the contract. The concessionaire shall indicate in the schedule of accounts cost and return accounts relating, on the one hand, to the activities relating to the subject of the concession contract and, on the other hand, to the other activities he deals with. The content of these accounts shall be determined by the concessionaire's internal rules.

(3) The contracting authority shall be responsible for the damage caused by the concessionaire in direct connection with the provision of the service to users.

ČÁST ČTVRTÁ

SIGNIFICANT CONCESSION CONTRACTS

§ 20

(1) The contracting authority shall also proceed in accordance with this part of the law where the anticipated concessionary income is at least the amounts referred to in paragraph 2.

(2) According to this part of the law,

(a) the Czech Republic, a state contribution organisation or any other legal person referred to in Article 2 (1) (d), if the Czech Republic is in a position as referred to in Article 2 (1) (d) (2) in respect of that person, if the expected income of the concessionaire is at least CZK 500 000 000;

(b) the region, the capital of Prague, the contribution organisations in which they perform the functions of the founder, or any other legal person referred to in § 2 (1) (d), if the region or capital of Prague is in a position to that person in accordance with § 2 (1) (d) (2) if the anticipated income of the concessionaire is at least CZK 250 000 000;

(c) a municipality in excess of 100 000 inhabitants, a contribution organisation in respect of which it acts as an intermediary, or another legal person in accordance with Paragraph 2 (1) (d), if the municipality is in a position under Paragraph 2 (1) (d) (2) in respect of that person, provided that the expected income of the concessionaire is at least CZK 200 000;

(d) a municipality of more than 25 000 to 100 000 inhabitants, a contributory organisation with which it is a contractor or another legal person pursuant to Paragraph 2 (1) (d), where the municipality is in a position to that person in accordance with § 2 (1) (d) (2) if the anticipated income of the concessionaire is at least CZK 100 000 000;

(e) a municipality of up to 25 000 inhabitants, a contribution organisation for which it is acting as an intermediary, or another legal person as referred to in Article 2 (1) (d), if the municipality is in a position under Paragraph 2 (1) (d) (2) in respect of that person, provided that the anticipated licence holder's income is at least CZK 50 000 000; and

(f) another contracting authority, if the anticipated income of the concessionaire is at least CZK 100 000 000.

§ 21

Concession project

(1) Before the start of the concession procedure or in the case of the procedure referred to in Article 7 (5) (b) before the invitation to tender is made, the contracting authority shall ensure that the concession project is drawn up.

(2) A concession project means the basic definition of the activity to be the subject of a concession contract, the basic definition of the economic conditions and legal relations resulting from the implementation of a concession contract and the economic assessment of the benefits of its provision by means of a concession contract; the details of the content of the concession project are laid down in the implementing legislation.

§ 22

Approval of the concession project

(1) No later than before the start of the concession procedure or, in the case of the procedure referred to in Article 7 (5) (b), before the invitation to tender is submitted, the concession project must be approved.

(2) The approved concession project is the basis for drawing up the concession documentation.

(3) The approval of the concession project is decided by:

(a) the government, in the case of a concession project of the Czech Republic, a state contribution organisation or other legal persons pursuant to § 2 (1) (d), where the Czech Republic is, in relation to that person, in the capacity of the contracting authority under § 2 (1) (d) (2);

(b) the regional council in the case of a regional concession project, a contribution organisation for which the region acts as an founder or other legal person pursuant to Article 2 (1) (d), if that region is in the capacity of contracting authority in accordance with Article 2 (1) (d) (2) in relation to that person;

(c) the council of the municipality, in the case of a concession project of the municipality, a contribution organisation for which the municipality acts as an authority or other legal entity pursuant to § 2 (1) (d), if that municipality is in the position of contracting authority in accordance with § 2 (1) (d) (2),

(d) the authority determining the management issues under the special legislation13) in the case of a concession project of another contracting authority.

(4) Failure to comply with the procedure referred to in paragraph 1 or 2 by the contracting authority shall not affect the validity of the contract.

§ 23

Approval of the concession contract

(1) Concession contract concluded by

(a) the Czech Republic, a state contribution organisation or any other legal person referred to in Article 2 (1) (d), where the Czech Republic is, in relation to that person, in the capacity of contracting authority pursuant to Article 2 (1) (d) (2), approved by the Government,

(b) a region, a contributory organisation in which it acts as an intermediary, or another legal person as referred to in Article 2 (1) (d), where that region, in relation to that person, is in the capacity of the contracting authority as referred to in Article 2 (1) (d) (2), shall be approved by the district council;

(c) a municipality, a contributor organisation with which it acts as an entity or another legal person pursuant to Article 2 (1) (d), where that municipality is, in relation to that person, in the capacity of the contracting authority under Article 2 (1) (d) (2), approved by the municipality's representative,

(d) another contracting authority shall approve the authority which decides on the matters of its management under special legislature13.

(2) The legal effects of the concession contract shall result in its approval under paragraph 1.

(3) If the concession contract has not been approved, the contracting authority shall cancel the concession procedure.

(4) In the event of a modification of a concession contract which leads to an increase of more than 20% in the concessionaire's anticipated income or which results in the concessionaire's expected income exceeding or equal to the amount referred to in Paragraph 20 (2), paragraphs 1 and 2 shall be followed.

ČÁST PÁTÁ

SURVEILLANCE

§ 24

Supervision of the Competition Authority

(1) The Office for the Protection of Competition (hereinafter referred to as the Office) is responsible for monitoring compliance with this law.

(2) The Office in the exercise of its supervision of compliance with this law

(a) issue interim measures;

(b) decide whether the contracting authority has acted in accordance with this law;

(c) impose corrective measures and penalties;

(d) to discuss administrative offences;

(e) checks the acts of the contracting authority under another legislation14); This is without prejudice to the competence of other bodies exercising such control under other legislation14a),

(f) carry out other tasks provided for by other legislation.

§ 24a

Initiation

The procedure for reviewing the acts of the contracting authority shall be initiated with the Office on a written proposal from the complainant (hereinafter referred to as the applicant) or on an ex officio basis.

§ 24b

Proposal

(1) An application may be made against all procedures of the contracting authority which exclude or might exclude the principles laid down in Article 3a and which result in damage to the rights of the applicant, in particular against:

(a) the specifications;

(b) the content of the concession notice;

(c) exclusion of the tenderer from the concession procedure;

(d) a decision on the selection of the most appropriate tender;

(e) the use of the type of concession procedure.

(2) Following the conclusion of a concession contract, an application may be lodged only against the conclusion of a concession contract without prior publication of a concession procedure or against a breach of the prohibition on the conclusion of a concession contract.

(3) The proposal, in addition to the general procedural requirements (15), must contain a precise indication of the contracting authority in which the infringement of the law in respect of which the appellant is threatened or caused harm to his rights, the relevant evidence and what the appellant seeks. The application sent to the Office shall include the proof of the composition of the deposit referred to in Article 24c and, in the case of the application sent to the Office before the conclusion of the concession contract, the proof of receipt of the opposition by the contracting authority.

(4) The application shall be served on the Office and in a copy to the contracting authority within 10 calendar days of the date on which the applicant received a decision by which the contracting authority did not comply with the objections. The application to impose a prohibition on the performance of a concession contract referred to in paragraph 2 shall be notified only to the Office within 30 calendar days of the date on which the contracting authority published the concession award notice in accordance with Article 31 (3), stating the reason for the conclusion of the concession contract without the publication of the concession notice, but not later than 6 months after the conclusion of the concession contract.

(5) Where a procuring entity has not settled an objection pursuant to Article 12 (3), a proposal for the imposition of corrective measures may be submitted and delivered to the Office and to the procuring entity no later than 25 calendar days after the date of dispatch of the objections by the complainant.

Date of Promulgation	19.04.2006
Effective from	01.07.2006
Effective until	-
Status	Valid

Citation	Law No. 139 / 2006 Coll., on concession contracts and concession procedures (concession law)
Regulation Type	-
Author	-
Collection	Code of Laws

Act No. 139 / 2006 Coll.

Law on concession contracts and concession procedures (concession law)

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