PART 2RULES IMPLEMENTING THE PUBLIC CONTRACTS DIRECTIVE
CHAPTER 1SCOPE AND GENERAL PRINCIPLES
SECTION 1Scope
Exclusions: Public contracts between entities within the public sector13
1
These Regulations do not apply to procurement for the award of a public contract—
a
by a contracting authority to a controlled person;
b
by a controlled person to a contracting authority which controls that person; or
c
by a controlled person to another controlled person where both such persons are controlled by the same contracting authority.
2
For the purpose of this regulation, a person is a “controlled person” where—
a
the contracting authority exercises over that person control similar to that which it exercises over its own departments;
b
the person carries out more than 80% of its activities in the performance of tasks entrusted to it by the authority or by other persons controlled by that authority; and
c
no other person has direct private capital participation in the person with the exception of non-controlling and non-blocking forms of private capital participation required by any enactment, in conformity with the F1Retained Treaties, which do not exert a decisive influence on the person being awarded the contract.
3
For the purpose of paragraph (2)(a) an authority shall be deemed to exercise control over a person similar to the control that it exercises over its own departments where—
a
it exercises a decisive influence over the strategic objectives and significant decisions of the person; or
b
such control is exercised by another person which is itself controlled in the same way by the contracting authority.
4
These Regulations do not apply to procurement for the award of a public contract by a contracting authority to a person which is jointly controlled.
5
For the purpose of paragraph (4) a person is jointly controlled where—
a
the contracting authority, jointly with other contracting authorities, exercises over that person control similar to that which the authorities exercise over their own departments;
b
the person carries out more than 80% of its activities in the performance of tasks entrusted to it by the contracting authorities or by other persons controlled by those authorities; and
c
no other person has direct capital participation in the person with the exception of non‑controlling and non-blocking forms of private capital participation required by any enactment, in conformity with the F2Retained Treaties, which do not exert a decisive influence on the person.
6
For the purpose of paragraph (5)(a) contracting authorities shall be deemed to exercise control over a person similar to the control that they exercise over their own departments where—
a
the decision making bodies of the person are composed of representatives of all participating contracting authorities;
b
those contracting authorities jointly exercise a decisive influence over the strategic objectives and significant decisions of the person; and
c
the person does not pursue any interests which are contrary to those of the contracting authorities.
7
For the purpose of paragraph (6)(a) individual representatives may represent several or all of the contracting authorities.
8
These Regulations do not apply to procurement for the award of a public contract exclusively between two or more contracting authorities where—
a
the contract is for the purpose of establishing or implementing co-operation between the contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;
b
the implementation of that co-operation is governed solely by considerations relating to the public interest; and
c
the contracting authorities perform on the open market less than 20% of the activities concerned by the co-operation.
9
The percentage of activities referred to in paragraphs (2)(b), (5)(b) and (8)(c), shall be determined by reference to—
a
the average turnover of the person or, as the case may be, contracting authority for the period of 3 years preceding the date of proposed contract award; or
b
an appropriate alternative activity-based measure such as costs incurred by the relevant person or contracting authority with respect to works, supplies and services for such 3 year period.
10
Where paragraph (11) applies, an alternative credible measurement of activity shall be used, and for this purpose use of business projections shall be treated as a credible measure.
11
This paragraph applies where the turnover or activity based measure are not available for the preceding 3 years or are no longer relevant because of—
a
the date on which the person or contracting authority was created or commenced activities; or
b
a reorganisation of its activities.