5.—(1) In these Regulations, “utilities” means entities which pursue one of the activities listed in Schedule 2 and award a concession contract for the pursuit of one of those activities, and which are one of the following—
(a)State, regional or local authorities (including the Crown but not including Her Majesty in her private capacity), bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law;
(b)public undertakings;
(c)any other entities which operate on the basis of special rights or exclusive rights, granted for the exercise of one of the activities listed in Schedule 2.
(2) But entities within the meaning of paragraph (1)(c) which have been granted special or exclusive rights by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute “utilities”.
(3) The procedures referred to in paragraph (2) include—
(a)procurement procedures with a prior call for competition in conformity with these Regulations, the Public Contracts Regulations 2015 M1, the Utilities Contracts Regulations 2016 M2 or the Defence and Security Regulations;
(b)procedures pursuant to the legal acts of the EU listed in Annex III to the Concessions Directive, as amended from time to time, ensuring adequate prior transparency for granting authorisations on the basis of objective criteria.
(4) In this regulation—
(a)“public undertaking” means any undertaking over which contracting authorities may exercise, directly or indirectly, a dominant influence by virtue of—
(i)their ownership of that undertaking,
(ii)their financial participation in that undertaking, or
(iii)the rules which govern that undertaking;
(b)“special right” means a right granted by a competent authority by means of any law, regulation or published administrative provision which is compatible with the [F1Retained] Treaties, the effect of which is to limit the exercise of an activity to two or more economic operators and which substantially affects the ability of other economic operators to carry out such an activity.
(5) For the purposes of the definition of “public undertaking” in paragraph (4), a dominant influence on the part of the contracting authorities shall be presumed where those authorities, directly or indirectly—
(a)hold the majority of the undertaking's subscribed capital;
(b)control the majority of the votes attached to shares issued by the undertaking; or
(c)can appoint more than half of the undertaking's administrative, management or supervisory body.
Textual Amendments
F1Word in reg. 5(4)(b) inserted (31.12.2020) by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319), regs. 1(2), 8(3) (with Sch. paras. 3-5)
Marginal Citations
M1S.I. 2015/102, as amended by S.I. 2016/275.