Concession award procedures without prior publication of a notice
1. Contrary to the provision set out in paragraph 2, instead of being published, the notice launching the procedure shall be sent directly, at the same time to all the economic operators concerned, in the following cases:
- in the case specified in Article 98(2)(c) and (d),
- if the concession award procedure with the publication of a notice was unsuccessful because no tender or request to participate was submitted in the procedure or the tenders or requests to participate submitted were substantially unsuitable, provided that the original terms of the concession have not been altered substantially; the contracting authority or contracting entity shall, upon request, inform the European Commission through the Minister responsible for public procurements. The tender shall be considered substantially unsuitable, if it is invalid on the ground that the professional tender is clearly unable to meet the needs and requirements defined by the contracting authority or contracting entity, unless substantial changes are made to it; the request to participate shall be considered substantially unsuitable, if it is invalid on the basis of Article 73(1)(b) or (d).
2. In concession award procedures without prior publication of a notice, tenders or requests to participate may only be submitted by the economic operators invited to do so. The economic operators invited to tender or participate may not submit a joint tender or joint request to participate, however, nothing prevents any economic operator invited to tender or participate from submitting a joint tender or joint request to participate with any other economic operator not invited by the contracting authority or contracting entity.
3. In the case specified in Article 1(b), the notice launching the procedure shall be sent to at least three economic operators, which are able to comply with the suitability criteria for the performance of the contract, in the opinion of the contracting authority or contracting entity.
4. The economic operators participating in the procedure shall be directly notified of any changes made to the procurement documents. In the course of the procedure, the subject-matter or terms of the contract may not be modified to such an extent that would have not allowed the application of a concession award procedure without prior publication of a notice.
5. The minimum time limits specified in Article 123(2) shall not apply to the time limit for submission and the time limits shall be set in such a way as to allow economic operators a sufficient period of time to submit their request to participate or tender.
6. In the case set out in Article 1(a) the final offer may also be made orally at the negotiation and shall be duly documented by the contracting authority or contracting entity.