Subject-matters of public procurements
1. Public procurement is the conclusion of public contracts as well as works or service concessions under this Act. Subject-matters of public contracts shall be the following: public supply, public works or public services.
2. Public supply means the acquisition by a contracting authority, with or without option to buy, of rights of ownership or right of use, of exploitation of negotiable movable property which can be taken into possession. Public supply shall in addition include installation and putting into operation.
3. Public works means one of the following types of work to be ordered (and taken over) by a contracting authority:
(a) the execution, or both the execution and design as defined in a separate act of legislation, of works related to one of the activities listed in Annex 1;
(b) the execution, or both the execution and design as defined in the relevant legislation, of a work;
(c) the realisation, by whatever means or in whatever manner, of a work corresponding to the requirements specified by the contracting authority concerned.
4. Public service contracts are procurements which are not covered by the definition of public supply nor that of public works having as their object in particular an activity ordered by a contracting authority.
5. Works concession is a contract for pecuniary interest concluded in writing by a contracting authority under this Act, whereby the contracing authority purchases the public works referred to in paragraph 3 and the consideration by the contracting authority for the works to be carried out consists either of the right to exploit the work for a specified period of time or of this right together with monetary consideration; the operational risk related to the exploitation shall be borne by the concessionaire.
6. Service concession is a contract for pecuniary interest concluded in writing by a contracting authority under this Act, whereby the contracing authority purchases the services referred to in paragraph 4 and the consideration by the contracting authority consists either of the right to exploit the service for a specified period of time or of this right together with monetary consideration; the operational risk related to the exploitation shall be borne by the concessionaire.
7. For the purposes of paragraph 5 and 6, the concessionaire is deemed to assume operating risk, where it is not guaranteed that the concessionaire can recoup the investments made or the costs incurred in establishing and operating the works or the services which are the subject-matter of the concession. The operating risk shall encompass demand or supply risk or both and its existence may only be established on the basis of risks stemming from factors which are outside the control of the concessionaire.
8. The subject-matter of the public procurement shall be specified by reference to the Common Procurement Vocabulary (hereinafter referred to as ‘the CPV’) as well.