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official translation Official translation LAW AMENDING THE LAW OF THE REPUBLIC OF LITHUANIA ON CONCESSIONS 10 September 1996 No. I-1510 (A new version of 24 June 2003 No IX-1647) (As amended by 29 April 2004 No IX - 2200) CHAPTER I GENERAL PROVISIONS Article

  1. Objective of the Law
  2. This Law defines the concept of concession in the Republic of Lithuania, the subject of concession contract, the procedure for choosing the concessionaires and the award procedure, the powers, rights and duties of the awarding authorities and concessionaires, the contents of concession contracts and establishes the relations pertaining to that.
  3. The regulation of the public works concession has been harmonised by this Law with the legal acts of the European Union specified in the Annex to this Law. Article
  4. Definitions For the purpose of this Law:
  5. Concession means the authorisation granted under this Law by the awarding authority to the concessionaire in compliance with the concession contract under the terms and conditions set forth therein to engage in the economic activity connected with the design, construction, development, renovation, transformation, repairs, management, use and/or maintenance of infrastructure objects, to provide public services, manage and/or use state-owned or municipal property (including the exploitation of mineral resources) where the concessionaire assumes under the concession contract all or part of the operating risk and undertakes the relevant rights and duties .
  6. Concession contract means a written contract concluded between the awarding authority acting on behalf of the State or municipality and the concessionaire, establishing the rights and duties of the awarding authority and the concessionaire pertaining to the concession.
  7. Subject of concession contract means the economic activities carried out by the concessionaire in the areas specified in Article 3 of this Law, relating to the design, construction, development, renovation, transformation, repairs, management, use and/or maintenance of infrastructure objects, provision of public services, management and/or use of state-owned or municipal property (including the exploitation of mineral resources).
  8. Concessionaire means any entity of the Republic of Lithuania or a foreign state awarded a concession by the appropriate awarding authority in compliance with this Law. The following shall be considered as entities: an enterprise of any type, a consortium, an association, an agency or an entity of any other legal form or type established and operating under the applicable laws of the Republic of Lithuania or a foreign state. A natural person shall not be considered as an entity.
  9. Tenderer means any entity or entities who have expressed interest, in the manner prescribed by Section Two of Chapter III this Law, in participation in the tender and/or have submitted preliminary non-binding or detailed binding tenders under the appropriate tendering conditions.
  10. Tendering conditions means, according to Section Two of Chapter III of this Law, the conditions for the award of a concession worked out, approved and published by the awarding authority.
  11. Awarding authority means the authority which, within the remit of its competence and powers established by the legal acts of the Republic of Lithuania, is responsible for the appropriate functions or fields of activities that may be exercised and ensured by awarding concessions: the Government of the Republic of Lithuania or an institution authorised by it where the concession is awarded on behalf of the state or the municipal executive authority where the concession is awarded on behalf of the respective municipality.
  12. Public works concession means the concession for the award whereof a concession contract for works indicated in Article 2

(21)of the Republic of Lithuania Law on Public Procurement is concluded between the concessionaire and the awarding authority which meets the requirements of subparagraphs 1, 2 or 3 of Article 3
(1)of the Republic of Lithuania Law on Public Procurement. According to the contract the consideration for the concessionaire for the works to be carried out shall consist either solely of the right to exploit the infrastructure object which is the result of such works or in this right together with payment. For the purposes of this Law public works concession shall only be the concession whose estimated contract value established under Article 8 of the Republic of Lithuania Law on Public Procurement is not less than LTL 17 264 000 (EUR 5 000 000).
  1. Affiliated undertakings means any undertakings over which the concessionaire may exercise, directly or indirectly, a dominant influence or which may exercise a dominant influence over the concessionaire or which, in common with the concessionaire, are subject to the dominant influence of another undertaking by virtue of ownership, financial participation or the rules which govern it. A dominant influence on the part of an undertaking shall be presumed when, directly or indirectly in relation to another undertaking, it: 1) holds the major part of the undertaking's subscribed capital; 2) controls the majority of the votes attaching to shares issued by the undertakings; 3) can appoint more than half of the members of the undertaking's administrative, managerial or supervisory body (save for the participants’ meeting). CHAPTER II SUBJECT OF THE CONCESSION CONTRACT Article
  2. Subject of the Concession Contract
  3. The subject of concession contracts may be any of the activities and functions listed in paragraphs 2 and/or 3 of this Article.
  4. Pursuant to the concession contract the concessionaire shall be granted a special authorisation to engage in the economic activity connected with the design, construction, development, renovation, transformation, repairs, management, use and/or maintenance of infrastructure objects or to provide public services in the following areas: 1) energy, including heat and electric energy, oil and natural gas extraction, transmission, distribution, supply; 2) railway lines and systems; 3) water economy, including water collection, pumping, treatment, purification and distribution; 4) waste water, including waste water collection, transportation and treatment, and sludge treatment; 5) utilisation, recycling and management of waste as provided for in the Law of the Republic of Lithuania on Waste Management; 6) roads, bridges tunnels, parking and other infrastructure of road transport; 7) health care system; 8) telecommunications infrastructure; 9) educational system; 10) port and barrage infrastructure; 11) airport infrastructure; 12) public transport infrastructure; 13) tourism objects, facilities and other infrastructure; 14) culture, sports, leisure facilities, equipment and other infrastructure; 15) in any other area on the decision of the Government of the Republic of Lithuania and the appropriate municipal council.
  5. Under concession contracts the concessionaires may be transferred for management and/or use state-owned or municipal property including property which under the Constitution of the Republic of Lithuania belongs by the right of exclusive ownership to the Republic of Lithuania, i.e. subsoil, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of national significance. Rights to the use of the continental shelf and/or economic zone in the Baltic Sea to which the state has exclusive rights as well as the underground resources provided for in the Underground Law of the Republic of Lithuania (including mineral resources), underground caves and other natural resources. Where state-owned land or municipal land is necessary for executing the project of concession awarded by way of an open procedure and this is provided for in the concession tendering conditions, the concessionaire may be granted the right to the lots of land referred to above without an auction, by concluding with the concessionaire land lease contracts or other contracts provided for by laws.
  6. The concession contract may provide for both the concessionaire’s commitment to create new property and to manage and/or use the existing property owned by the state, municipality or the concessionaire. The terms and conditions of management and/or use of such property as well as of transferring the title thereto (in cases where the transfer is not contrary to the Constitution or laws of the Republic of Lithuania) or of retention of such title shall be established by the parties in the concession contract.
  7. The right to manage and/or use state-owned or municipal property entered on the list of objects subject to privatisation under the Law of the Republic of Lithuania on the Privatisation of Property Owned by the State or Municipality shall not be transferable to the concessionaire under the concession contract. State or municipality owned property, for the management and/or operation whereof concession contracts have been concluded, shall not be subject to privatisation during the contract validity period, unless the concession contracts establish otherwise. Article
  8. Limiting Concessions in Certain Sectors of Economic Activity Entities who are prohibited to invest in the sectors specified in Article 8
(2)of the Law of the Republic of Lithuania on Investment shall not be awarded concessions to carry out economic activities in the above areas. CHAPTER III PROCEDURE FOR AWARDING CONCESSIONS SECTION ONE GENERAL PROVISIONS Article
  1. Principles of Awarding Concessions
  2. Concessions shall be awarded following the procedure set forth in this Law, the Civil Code and other laws of the Republic of Lithuania.
  3. The awarding authority which under the laws of the Republic of Lithuania and in accordance with its competence and remit is responsible for a relevant function or sphere of activity that may be the subject of concession contract shall be hereunder granted the right to award the concession by concluding the concession contract (as well as other ancillary and relating contracts, including contracts with the entities financing the concession project) for the performance of the function or for carrying out activities in the relevant area. Decisions relating to concessions whereunder the Republic of Lithuania assumes material property obligations shall be taken by the Seimas of the Republic of Lithuania on the recommendation of the Government of the Republic of Lithuania. For the purposes of this Law any property obligation (including potential civil liability arising under the concession contract) which exceeds LTL 200 million shall be deemed as material. Article
  4. Procedure for Awarding Concessions Concessions shall be awarded following open public tendering procedure provided for in Section Two of Chapter III of this Law except in cases provided for in Section Three of Chapter III of this Law when concessions may be awarded not subject to tendering. Article
  5. Information about Authorisations and Licences . During the concession contract negotiations the awarding authority shall submit information about the authorisations or licences issued by state and/or municipal authorities necessary for implementing the concession contract. SECTION TWO TENDERING PROCEDURE Article
  6. Phases of Tendering
  7. Tendering for the award of the concession shall be held in the following phases: 1) publication of the tender notice; 2) pre-selection; 3) submitting preliminary non-binding tenders; 4) evaluation of preliminary non-binding tenders; 5) submitting detailed binding tenders; 6) evaluation of detailed binding tenders; 7) negotiations and conclusion of the concession contract.
  8. Tender notice for the award of a concession may be published and the tendering procedure may be carried out exclusive of the tendering phases provided for in subparagraphs 2 and/or 3 and 4 of paragraph 1 this Article. Article
  9. Tendering Conditions
  10. In every case of tendering for a concession the awarding authority shall draw up and approve, in compliance with paragraph 2 of Article 6.947 of the Civil Code of the Republic of Lithuania, the conditions of tendering where the following shall be specified: 1) the subject of the proposed concession and characterisation of the concession project, including technical conditions of the concession project and requirements for its performance, security and environmental protection requirements, specification of the basic contract conditions; 2) whether or not the pre-selection of tenderers will be held and in case it will, where, when and what documents they have to submit as well as the qualification requirements the potential tenderers have to comply with in order to be selected for the submission of tenders, as provided for in Article 10 of this Law, the pre-selection period and method, time and place of notification of the pre-selection results; 3) whether the tenderers must submit preliminary non-binding tenders and, if yes, the time and place where they shall submit such tenders and the required contents of the tenders as specified in Article 11 of this Law; 4) the time and place of the submission of detailed binding tenders and the required contents as specified in Article 13 of this Law; 5) time of evaluation of the tenderers’ tenders and the evaluation criteria as indicated in Article 13 of this Law; 6) cases when the tenders may be considered as failing to meet the requirements of tendering conditions; 7) any other terms included by the awarding authority in the tendering conditions.
  11. Unless tendering conditions provide for the pre-selection of tenderers, the publication of tendering conditions shall be an invitation to submit detailed binding tenders; where tendering conditions provide for the submission of preliminary non-binding tenders – an invitation to first submit preliminary non-binding tenders.
  12. Tendering conditions shall be published in the supplement Informaciniai pranešimai to the official gazette Valstybės žinios. By the decision of the awarding authority notice of the tendering conditions may be additionally published in the international, Lithuania’s national or regional press or other mass media. Full text of the tendering conditions approved by the awarding authority or clear and accurate reference as to the place and time when and where the relevant parts of the tendering conditions will be accessible to any interested person, the purchasing price (where set) of the documents indicated in the notice which the tendering conditions are specified, provided, however, that the text of the notice always contains a short characterisation of the subject and project of the proposed concession.
  13. Should the awarding authority decide to change the tendering conditions or to cancel the tendering procedure, it shall have the right to do so during the first half of the period following the publication of the tendering conditions in compliance with paragraph 2 of this Article until the date of submission of the detailed binding tenders. Notice of the change of the tendering conditions shall be published in conformity with the requirements specified in paragraph 2 of this Article in the same manner as the tendering conditions. Article
  14. Pre-selection of Tenderers
  15. Where the pre-selection of tenderers is provided for in the tendering conditions, the tenderers must express interest in participating in the tendering procedure indicating that they fulfil the pre-selection criteria which may be all or part of the following conditions: 1) appropriate professional and technical qualification; 2) possession, during the pre-selection procedure and after the conclusion of the concession contract of equipment and other means necessary for all phases of activities that will be carried out under the proposed concession contract or feasible possibility of possession thereof; 3) possession, during the pre-selection, of financial resources (own or borrowed funds) for all phases of works to be carried out under the proposed concession contract or feasible possibility of possession thereof after the conclusion of the concession contract. 4) proper management and organisational experience; 5) other terms and conditions laid down by the awarding authority.
  16. Upon establishing that the tenderers fulfil the pre-selection criteria, the awarding authority shall compile an alphabetical list of the tenderers to be invited to submit detailed binding tenders or, where this is provided for by the tendering conditions, to submit preliminary non-binding tenders. The list shall be published in the supplement “Informaciniai pranešimai “ to the official gazette “Valstybės žinios” and otherwise if provided for by the tendering conditions.
  17. Except where the conditions of the tendering procedure provide otherwise, in case only one tenderer fulfils the pre-selection criteria, the awarding authority shall invite the tenderer to submit a detailed binding tender according to the procedure laid down in the tendering conditions, omitting the submission of a preliminary non-binding tender. Article
  18. Submission of Preliminary Non-binding Tenders
  19. Where the concession project is of a very complex nature or of importance to the state or the respective municipality as well as in other cases, the awarding authority may, at its own discretion, lay down in the tendering conditions that the tenderers must first submit preliminary non-binding tenders and only thereafter detailed binding tenders.
  20. The requirements for the content of the preliminary non-binding tenders shall be specified in the tendering conditions. Such requirements shall be drawn up in compliance with the requirements set for the content of detailed binding tenders as prescribed in Article 13
(2)of this Law and in the tendering conditions, except that the extent required by the preliminary non-binding tenders may be lower than that of detailed binding tenders.
  1. The tenderers who submit preliminary non-binding tenders shall be subject to the provisions of paragraphs 2-4 of Article 13 of this Law. Article
  2. Evaluation of Preliminary Non-binding Tenders
  3. The awarding authority shall assess whether or not the tenderers’ preliminary non-binding tenders meet the requirements set for them in the tendering conditions and shall give the tenders which meet the requirements a favourable evaluation without ranking them.
  4. The awarding authority shall compile an alphabetical list of the tenderers whose preliminary non-binding tenders have been given a favourable evaluation and shall invite them to submit detailed binding tenders. The list of the tenderers shall be published in the supplement Informaciniai pranešimai to the official gazette Valstybės žinios.
  5. If the awarding authority favourably evaluates only one tenderer’s preliminary non-binding tender, it may open negotiations with the tenderer according to the procedure established in Article 16 of this Law provided that the tenderer agrees that his preliminary non-binding tender be considered as a detailed binding tender. In such case the tenderer shall be considered to have submitted a detailed binding tender and the tender shall be considered to have been recognised as the successful tender in the manner set forth in the tendering conditions. In case the tenderer refuses to give his consent to his preliminary non-binding tender being considered as a detailed binding tender, he shall be invited to submit a detailed binding tender according to the procedure prescribed by the tendering conditions. Article
  6. Submission of Detailed Binding Tenders
  7. Detailed binding tenders shall address the technical, financial and commercial issues formulated in the tendering conditions and present the information required under the conditions of tendering which in all cases shall cover: 1) proposals and comments with regard to the technical specifications of the concession project and requirements to its implementation, including the safety and environmental protection requirements provided for by the awarding authority in the tendering conditions; 2) a comment by the awarding authority on the contractual terms proposed in the tendering conditions or reservations regarding them.
  8. The tenderers shall have the right to request that the awarding authority explain the conditions of tendering and present any other additional information relating to tendering. The awarding authority must immediately respond to the requests and supply as much information as permitted under the conditions of tendering and provisions of laws. The awarding authority must ensure that all tenderers are provided an opportunity to receive the same information in good time and that the manner of supply of such information is identical for all the tenderers. All the tenderers must be set an equal time limit for submitting their tenders and this must be specified in the conditions of tendering.
  9. As necessary, the awarding authority may hold meetings with the tenderers in order to explain or discuss questions relating to tenders. When organising such meetings the awarding authority must ensure that all tenderers are supplied identical information.
  10. Where the conditions of tendering provide for the submission of preliminary non-binding and detailed binding tenders, the conditions proposed in the tenderers’ detailed binding tenders shall not be worse, according to the criteria of evaluation, than those proposed in the preliminary non-binding tenders, unless otherwise provided by the conditions of tendering. Article
  11. Evaluation Criteria
  12. The awarding authority, taking into account the requirements set forth in this Article, the objectives to be reached as set in the proposed concession contract and other material circumstances, shall set in the tendering conditions the criteria for evaluation and comparison of the tenderers’ detailed binding tenders. The awarding authority shall apply the criteria fairly, without discrimination against any tenderer.
  13. The criteria for evaluation and comparison of technical aspects of the tenders submitted by the tenderers may include the following requirements: 1) technical soundness of the tender; 2) operational feasibility the tender; 3) quality of public services and measures ensuring continuity of service provision; 4) environmental protection aspects of the tender; 5) effect of the tender on the social and economic development of the country or an appropriate region.
  14. The criteria for evaluation and comparison of financial and commercial aspects of the tenderers’ tenders may provide for the following requirements: 1) the value of the amounts which the concessionaire proposes to set and collect as remuneration for the provided public services or to collect as local fees and charges under the concession contract, taking into account the planned time and periodicity of payment of such amounts; 2) the value of any payments to be made by the awarding authority under the concession contract, taking into account the planned time and periodicity of payment of such amounts; 3) the value of any payments to be made by the concessionaire under the concession contract, taking into account the planned time and periodicity of payment of such amounts; 4) the costs related to design and construction activities, annual exploitation and maintenance costs, costs of proposed financial arrangements; 5) the extent of financial support requested from the state or the appropriate municipality by the awarding authority or any other state or municipal authority, should any be requested; 6) the feasibility and specifics of the proposed financing in accordance with the submitted documents relating thereto; 7) the acceptability to the tenderer of the proposed contractual terms and the conditioning circumstances. Article
  15. Evaluation of Detailed Binding Tenders The awarding authority shall assess the received tenderers’ detailed binding tenders according to the evaluation criteria set in the tendering conditions and compile a list of tenderers ranking them according to the given evaluation. The list shall be published in the supplement Informaciniai pranešimai to the official gazette Valstybės žinios and otherwise if provided for by the tendering conditions. If only one detailed binding tender meeting the requirements set in the tendering conditions is received, a notice of the tenderer who submitted the tender shall be published in the manner prescribed by this Article and the awarding authority shall commence negotiations with the tenderer following the procedure established in article 16 of this Law. Article
  16. Negotiations and Conclusion of a Concession Contract
  17. The awarding authority shall invite the tenderer recognised as highest ranking in the manner set in Article 15 of this Law to take part in negotiations. During the negotiated procedure there may be no derogations from the requirement that the concessionaire fulfil the conditions of technical, financial and commercial nature prescribed by the tendering conditions. Upon successfully completing negotiations with the tenderer recognised as highest ranking, the awarding authority shall award the tenderer the concession contract (as necessary, awarding the contract to the undertaking established by him for the purpose) as necessary concluding other ancillary and relating contracts, including contracts with entities funding the concession project.
  18. In addition to the tenderer whose tender has been recognised as highest ranking, the awarding authority may also invite the tenderer ranking second to take part in the negotiations, provided that its tender is similar to that of the tenderer whose tender has been recognised as highest ranking. In such case, upon completion of negotiations with both tenderers, the awarding authority shall award the concession contract (as necessary, concluding other ancillary and relating contracts, including contracts with entities funding the concession project) to the tenderer (and, as necessary, to the undertaking established by the tenderer for the purpose) with whom more favourable terms, judging by the tender evaluation criteria set by the tendering conditions, have been agreed.
  19. Should the negotiations with the highest ranking tenderer cease and if the second ranking tenderer is not invited, according to paragraph 2 of this Article, to take part in the negotiations, the awarding authority may invite other tenderers to participate in the negotiations according to their ranking in the manner set by Article 15 of this Law; however only one tenderer shall be at a time invited to take part in the negotiations. Upon successfully completing negotiations with such tenderer, the awarding authority shall award the concession contract to the tenderer (and, as necessary, to the undertaking established by the tenderer for the purpose), if necessary concluding with the tenderer other ancillary and relating contracts, including contracts with entities funding the concession project.
  20. The awarding authority shall ensure that the tenderer/tenderers who takes/take part in the negotiations for the award of the concession contract is/are aware of the manner in which negotiations for and awarding of the concession contract shall be performed.
  21. The awarding authority shall be authorised to make such arrangements and take such actions as may be appropriate, even though directly not provided for by the tendering conditions, in order to fully harmonise the provisions of the concession contract and any other ancillary relating documentation, provided that all tenderers taking part in the negotiations are treated fairly and without discrimination. SECTION THREE AWARDING CONCESSIONS WITHOUT THE TENDERING PROCEDURE Article
  22. Circumstances under which a Concession may be Awarded without the Tendering Procedure The awarding authority may award a concession without observing the procedure set in Section Two of Chapter III of this Law in the presence of any of the following circumstances: 1) where there is an urgent need for infrastructure which could not have been foreseen in advance and/or a need for ensuring continuity in the provision of public services, and under the unforeseen circumstances it is not possible to hold a tendering procedure for awarding the concession; 2) where the concession contract relates to matters involving national security and defence; 3) where, for technical reasons or due to the possessed exclusive rights, there is only one source reasonably capable of providing the services or facilities in relation to which the concession contracts is to be awarded and there is no other alternative; 4) where the tendering procedure has already been launched but no tenders satisfying the tendering conditions have been received and, in the opinion of the awarding authority, the use of a further tendering procedure would not result in the award of the concession contract. In such case the decision to award the concession without an invitation to tender must be taken not later than within 6 months after the completion of the tendering procedure and the concession shall be awarded without tendering under the same conditions as those of the previously held tendering; 5) where a valid concession contract is terminated due to the non-performance or improper performance of the concession contract by the concessionaire, which constitutes a material breach of the contract, and a new concession contract is awarded with respect to the subject matter of the concession to a different concessionaire invited by the banks or other financial institutions who have advanced loans to the defaulting concessionaire and one of the principal purposes for such new contract is to enable such loans to be discharged from revenues payable to the new concessionaire under the concession contract; 6) where the potential concessionaire initiates the concession project that may be in the public interest provided that the project is unique and innovative and is related to a unique or proprietary technology unavailable to others or other exclusive rights to intellectual property; 7) at least 50% the concession project shall be financed by a foreign institution or state on the terms more favourable than the market terms valid in Lithuania at the moment the of the award of the concession and the financing institution or state has set requirements for the potential concessionaires that are met only by a certain category of entities as well as requirements for the selection of the concessionaire which differ from the tendering procedure prescribed by this Law. Article
  23. Requirements Applicable when Concessions are Awarded without Launching the Tendering Procedure
  24. The awarding authority which intends to award the concession without launching the tendering procedure shall make known its intention by means of a notice published in the supplement Informaciniai pranešimai to the official gazette Valstybės žinios, at the same time notifying of the reasons for awarding the concession without tendering. Information on the concession award shall not be published if it constitutes a state or official secret..
  25. When awarding a concession and concluding the concession contract (as well as concluding other ancillary and relating contracts, including contracts with the entities funding the concession project) without the tendering procedure, the awarding authority shall take all appropriate measures to secure in the contract the best possible protection of the public interest and the most favourable terms of the concession contract for the awarding authority, taking into account all relevant factors, including the degree of risk to be assumed by the concessionaire, the possibility to receive alternative tenders from other potential concessionaires, complexity of the concession project, any concerns of confidentiality, national security and defence and other issues related to the circumstances provided for in Article 17 of this Law. SECTION FOUR NOTICE OF THE DECISION TO AWARD A CONCESSION CONTRACT Article
  26. Notice of the Decision to Award a Concession Contract The awarding authority shall ensure that the notice of the decision regarding the award of any concession be published in the supplement Informaciniai pranešimai to the official gazette Valstybės žinios. The notice shall indicate the concessionaire’s name and the essential characteristics of the concession contract, however, no notice shall be published of the information constituting state or official secret. The awarding authority shall send the text of the notice for publishing in the publication indicated in this Article not later than within 3 working days after the award of the concession contract. SECTION FIVE DISPUTES RELATING TO THE AWARD OF CONCESSIONS Article
  27. Settlement of Disputes relating to the Award of Concessions Any tenderer in the tendering procedure held according to this Law to which the award of the concession contract was refused as well as other persons who believe that their rights were violated in the award of the concession shall be entitled to defend their rights in court in accordance with the laws of the Republic of Lithuania. Such claims must be submitted to the court within one-month period of limitation from the day of publication of the notice of the decision to award the concession contract, as provided for in Article 19 of this Law. SECTION SIX SPECIFIC FEATURES OF PUBLIC WORKS CONCESSIONS Article
  28. Specific Features of the Award of Public Works Concession
  29. Where the subject of a concession contract is works and provision of public services, the concession shall be deemed to be a public works concession provided that the main subject of the concession is works while the provision of services is only ancillary to the concessionaire’s commitment to perform works. A concession the main subject of concession contract whereof is provision of public services, while works are ancillary to the concessionaire’s commitment to provide public services, shall not be deemed to be a public works concession.
  30. When awarding a public works concession the awarding authority shall organise the tendering procedure in the manner set forth in Section Two of Chapter III of this Law and publish a tender notice in the Official Journal of the Office for Official Publications of the European Communities and in the supplement Informaciniai pranešimai to the official gazette Valstybės žinios as well as in the website of the official gazette Valstybės žinios. When awarding a public works concession the awarding authority shall set the time limit for submitting tenders that shall not be shorter than 52 days from the date of dispatch of the notice from the Public Procurement Office. The model notice and requirements of the notice shall be determined by the Government of the Republic of Lithuania or an institution authorised by it. The notices shall be drawn up and published in conformity with the requirements set in Article 19 of the Law of the Republic of Lithuania on Public Procurement.
  31. When awarding the public works concession the awarding authority may set one of the following requirements in the public works concession contract notice: 1) that the concessionaire award contracts representing a minimum of 30 % of the total value of the work for which the concession contract is to be awarded, to third parties. The tenderers of the tendering procedure for the award of a public works concession shall be at the same time provided the option to increase this percentage. This minimum percentage shall be specified in the concession contract; or 2) that the tenderers specify in their tenders the percentage, if any, of the total value of the work for which the concession contract is to be awarded which they intend to assign to third parties.
  32. Where the concessionaire meets the requirements set in Article 3
(1)of the Law of the Republic of Lithuania on Public Procurement, set for the purchasing organisation, it must procure all works required for the performance of the concession contract in accordance with the provisions of the Law of the Republic of Lithuania on Public Procurement regulating public procurement of works. 5. In case the concessionaire does not meet the requirements of Article 3
(1)of the Law of the Republic of Lithuania on Public Procurement set for the procuring organisation, when awarding contracts for works required for the performance of the concession contract for which the concessionaire intends to subcontracts third parties provided that the intended value of such contracts, estimated in accordance with article 8 of the Law of the Republic of Lithuania on Public Procurement is not less than LTL 17 264 000 (EUR 5 000 000), the concessionaire must make a prior publication of a contract notice and award the public works contracts by negotiated procedure, performing procurement procedures and determining the successful tenderer in compliance with the principles of equality of rights, non-discrimination and transparency. Model notice and notice requirements shall be established by the Government of the Republic of Lithuania or an institution authorised by it. The notices shall be drawn up and published in conformity with the requirements set in Article 19 of the Law of the Republic of Lithuania on Public Procurement. The concessionaire shall fix and indicate in the notice the time limits for receipt of requests to participate and for submission of tenders. The time limits shall be fixed in compliance with paragraphs 1-4 of Article 23 of the Law of the Republic of Lithuania on Public Procurement, however, the time limit for receipt of requests to participate shall be not less than 37 days and the time limit for receipt of tenders may not be less than 40 days. In the cases which justify the use of negotiated procedure as set forth in Article 45 of the Law of the Republic of Lithuania on Public Procurement publication of a contract notice shall not be mandatory. 6. The following shall not be regarded as third parties within the meaning of this Law: 1) two or more undertakings which have formed a consortium or any other group in order to obtain the concession contract as one undertaking under this Law; 2) undertakings affiliated to the concessionaire or to the undertakings specified in subparagraph 1 of this paragraph. 7. Before the award of a public works concession every tenderer for the award of the public works concession shall submit to the awarding authority a comprehensive list of undertakings affiliated to it. In the event of change of the undertakings affiliated to the concessionaire the list shall be modified accordingly. 8. The specific features of the award of public works concessions specified in this Article shall not apply to the procurement contracts listed in Article 9
(1)of the Law of the Republic of Lithuania on Public Procurement. Article
  1. Reviewing of Claims and Complaints, Reconciliation, Compensation for Damages The issues relating to the filing of a claim or lodging of a complaint about the actions or decisions of the awarding authority, the procedure and time limits for filing and review of claims, the procedure for filing complaints, the issues regarding compensation for damages, reviewing complaints about violations of the EU legislation, reconciliation, attestation and liability of the executives or other authorised persons of the awarding authority shall be settled in accordance with the provisions of Chapter V of the Law of the Republic of Lithuania on Public Procurement. CHAPTER IV CONCESSION CONTRACTS Article
  2. Application to a Concession Contract of the Principles of Participation by Awarding Authority on Equal Grounds and of Freedom of Contract When awarding a concession contract the awarding authority shall act pursuant to Article 2.36 of the Civil Code of the Republic of Lithuania. All the conditions of the award of a concession shall be the object of negotiations between the parties to the contract, however, the concession award requirements set in Chapter III of this Law must be complied with. The awarding authority shall have the same right to agree on the subsequent alteration of the awarded concession contract as when negotiating on the original terms of the contract, provided that the alterations meet the public interests. Article
  3. Contents of the Concession Contract The concession contract shall comprise the following terms, unless otherwise established by the awarding authority and/or agreed by the parties: 1) nature and scope of works to be performed and/or public services to be provided by the concessionaire as well as other terms characterising the subject of the concession contract; 2) any conditions precedent to the entry into force of the concession contract; 3) duration of the concession contract and a mechanism, if agreed upon, for its extension; 4) degree of exclusivity granted to the concessionaire under the laws of the Republic of Lithuania; 5) property rights of the parties to the assets which are to be created, used, modified, managed, maintained or provided (if provided for by the concession contract) or which are the subject of any works or services to be provided pursuant to the concession contract; 6) the period/periods within which any works have to be completed and the terms of extension of the period; 7) such restrictions or conditions as may be agreed on the transfer of a controlling interest in the capital of the concessionaire (or any other changes in the controlling entities of the concessionaire); 8) any payments that any of the parties is required under contract to make to the other (including payments made by the awarding authority in consideration for services provided or work done by the concessionaire) and methods for the adjustment of payments; 9) the rights, if any, of the concessionaire to charge third parties – natural and legal persons the remuneration or any other payment due to the concessionaire for the public services provided under the concession contract, the appropriate methods for the adjustment of the amount of such fixed remuneration or other payment, agreement on collection of the local fees and charges fixed by the respective municipality and the effect of the fixed or adjusted amount of such charges on the rights and duties of the parties to the concession contract; 10) the obligations, if any, of the concessionaire to ensure continued and non-discriminatory access for third parties to the facilities and /or services provided pursuant to the concession contract; 11) the right of the parties to assign their rights under the concession contract, whether by way of security or otherwise and any conditions applicable thereto; 12) any requirements concerning guarantees of performance that the concessionaire may be required to provide; 13) any insurance policies that the concessionaire may be required to maintain in connection with the execution of the concession project; 14) obligations of the concessionaire relating to the protection of the environment; 15) obligations of the parties to provide for use, assign and/or acquire a land plot and/or any other assets necessary for the execution of the concession project and conditions relating to the obligations; 16) any rights of the awarding authority to monitor the performance of the concessionaire’s obligations, including the right to inspect the assets used and/or created by the concessionaire; 17) any applicable provisions on force majeure and the consequence of changes in law or other changes provided for in the contract, including the parties’ right to seek renegotiation or termination of the concession contract or compensation for damages resulting from such changes, provided such compensation has been agreed upon; 18) remedies available to either party in the event of default by the other party; 19) grounds and procedure for the termination of the concession contract; 20) the circumstances whereunder the awarding authority or a third party may (temporarily or otherwise) take over the fulfilment of any obligation of the concessionaire for the purpose of ensuring the effective and uninterrupted supply of services in the event of material default by the concessionaire on its obligations under the concession contract; 21) taxation and fiscal matters (to the extent such agreements are allowed under the laws of the Republic of Lithuania and international treaties of the Republic of Lithuania; 22) the relationship between the concession contract (or the parties thereto) or any relating or ancillary contracts (or the parties thereto); 23) governing law; 24) settlement of disputes; 25) in case of a concession contract relating to exploitation of natural resources, provisions relating to description of the geographical area covered by the concession contract, provisions on the determination or payment of royalties and other fees payable for the quantities of natural resources extracted or shared by the concessionaire (to the extent such agreements are permitted by the laws of the Republic of Lithuania and the international treaties of the Republic of Lithuania), the ownership right to the relevant natural resources and arrangements regarding sale of the relevant natural resources: 26) any other provisions agreed by the parties. Article
  4. Security Interests The concessionaire may create security over its rights to any payments whether by way of pledge or assignment of the property rights it has or will acquire under the concession contract, including any payments receivable under the concession contract as well as its other property as well as creating security over its rights in ay other manner provided for by law. Article
  5. Governing Law The parties to the concession contract shall have the right to choose the governing law applicable to the concession contract or separate parts thereof in accordance with the procedure established by the Civil Code of the Republic of Lithuania. Article
  6. Settlement of Disputes
  7. The awarding authority and the concessionaire shall have the right to agree on the procedures for the settlement of disputes arising from or related to the concession contract, including dispute settlement by international or national commercial arbitration, depending on the nature of the concession contract. Where the laws of the Republic of Lithuania so require, the awarding authority must obtain the incorporator’s prior consent to the agreement to settle disputes by arbitration. Where the dispute settlement procedure is not provided for in the concession contract, the disputes of the parties to the concession contract shall be settled by the courts of the Republic of Lithuania in accordance with the Code of Civil Procedure of the Republic of Lithuania.
  8. In the event of a dispute between the awarding authority and the concessionaire considered as a foreign investor under the Law of the Republic of Lithuania the concessionaire shall be entitled to exercise the rights provided for in Article 6
(3)of the Law of the Republic of Lithuania on Investment. Article
  1. Termination of the Concession Contract
  2. Unless the concession contract provides otherwise, either of the parties to the contract may unilaterally terminate the concession contract under the following circumstances: 1) if the other party defaults on the contract, which constitutes a material breach of the contract, whereas the terminating party has made a prior notification of the default on the concession contract to the other party but the defaulting party has not remedied the material breach of the contract in the manner and within the time limit provided for in the concession contract and/or in the notification; 2) if the performance of the concession contract is precluded by the circumstances which the terminating party could not control or reasonably foresee at the time of the contract award and the circumstances or the consequences thereof could not be prevented from occurring.
  3. Unless the concession contract provides otherwise, in addition to the grounds specified in paragraph 1 of this Article, the awarding authority may unilaterally terminate the concession contract if: 1) the concessionaire (or the tenderer which established the concessionaire) submitted materially incorrect data pertaining to its financial position and/or business activities to the awarding authority for the concession award and this is disclosed only after the award of the concession contract; 2) the concessionaire is in liquidation or bankruptcy procedures have been instituted in it and the awarding authority has reasonable grounds to believe that the concession project will not be executed in accordance with the terms and conditions laid down in the concession. CHAPTER V PAYMENTS. LEGAL PROTECTION OF CONCESSIONAIRES Article
  4. Payments under the Concession Contract
  5. All payments due to the concessionaire for the services provided under the concession contract and the procedure for effecting the payments shall be provided for or agreed upon in the concession contract in compliance with the requirements of the laws of the Republic of Lithuania.
  6. When the subject of the concession contract is provision of public services which are or may be subject to local fees and charges according to the Law of the Republic of Lithuania on Local Fees and Charges, the awarding authority may grant or transfer to the concessionaire the right of collection of such fees and charges from natural and legal persons. In such event the awarding authority shall ensure that the municipal institutions take all the decisions necessary for the implementation of such right. Article
  7. Equality of Concessionaires Both Lithuanian concessionaires and concessionaires regarded as foreign investors under the Law of the Republic of Lithuania on Investment shall be equal under law and may not be discriminated against in performing their business activities in accordance with this Law and other laws of the Republic of Lithuania. CHAPTER VI FINAL PROVISIONS Article
  8. International Treaties If international treaties of the Republic of Lithuania lay down rules other than those provided for in this Law, the rules of international treaties shall apply. Article
  9. Entry into Force of the Law This Law shall enter into force from the date of accession of the Republic of Lithuania to the European Union. I promulgate this Law passed by the Seimas of the Republic of Lithuania PRESIDENT OF THE REPUBLIC ROLANDAS PAKSAS ANNEX to the Law of the Republic of Lithuania on Concessions LEGAL ACTS OF THE EU BEING IMPLEMETNED 1.COUNCIL DIRECTIVE 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (as amended by Council Directive 92/50/EEC of 18 June 1992).
  10. COUNCIL DIRECTIVE 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (as amended by Commission Directive 2001/78/EC of 13 September 2001).

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