PART 2SCOPE AND PRINCIPLES
CHAPTER 2EXCLUSIONS
Exclusions: Concession contracts between entities within the public sectorI119
1
These Regulations do not apply to procurement for the award of a concession contract—
a
by a contracting entity to a controlled person;
b
by a controlled person to a contracting entity which controls that person; or
c
by a controlled person to another controlled person if both such persons are controlled by the same contracting entity.
2
For the purpose of this regulation, a person is a “controlled person” if—
a
the contracting entity exercises over that person a control which is 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 contracting entity or by other persons controlled by that contracting entity; 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) a contracting entity shall be deemed to exercise control over a person similar to the control that it exercises over its own departments if—
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 entity.
4
These Regulations do not apply to procurement for the award of a concession contract by a contracting entity to a person which is jointly controlled.
5
For the purpose of paragraph (4) a person is jointly controlled if—
a
the contracting entity, jointly with other contracting entities, exercises over that person a control which is similar to that which the contracting entity 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 contracting entities or by other persons controlled by those entities; 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 F2Retained Treaties, which do not exert a decisive influence on the person being awarded the contract.
6
For the purpose of paragraph (5)(a) the contracting entity shall be deemed to exercise control over a person similar to the control that the entity exercises over its own departments if—
a
the decision making bodies of the person are composed of representatives of all participating contracting entities;
b
those contracting entities 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 entities.
7
For the purpose of paragraph (6)(a) an individual representative may represent several or all of the contracting entities.
8
These Regulations do not apply to procurement for the award of a public contract exclusively between two or more contracting entities if—
a
the contract is for the purpose of establishing or implementing co-operation between the contracting entities 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 entities 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), must be determined by reference to—
a
the average turnover of the person or, as the case may be, contracting entity for the period of 3 years preceding the date of the proposed concession contract award; or
b
an appropriate alternative activity-based measure such as costs incurred by the relevant person or contracting entity with respect to works and services for such 3 year period.
10
If paragraph (11) applies, an alternative credible measurement of activity must be used, and for this purpose use of business projections must be treated as a credible measure.
11
This paragraph applies if 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 entity was created or commenced activities; or
b
a reorganisation of its activities.
12
In this regulation, “contracting entity” means a contracting authority or a utility referred to in regulation 5(1)(a) (meaning of “utility”).