Regulation 21 sets out various types of services contracts that are excluded from the scope (e.g. employment contracts, public passenger services contracts, contracts for the acquisition of land, and so on).
A new feature in the UCR 2016 are the exemptions for so called “in-house” contracts and for contracts involving joint co-operation between public bodies; the UCR 2016 have written into statute the Teckal and Hamburg cases. Note, in particular, that these provisions only apply to Utilities which are also contracting authorities.
- So called “in-house” contracts – the UCR 2016 do not apply where a contract is awarded to an entity which is controlled by the contracting authority Utility (or a number of Utilities) and which does more that 80% of its business with that controlling contracting authority Utility(s). The same principle applies in reverse for contracts awarded by the controlled entity to its controlling Utility(s); or
- Joint co-operation between contracting authority Utilities – the UCR 2016 do not apply where the contract is being awarded exclusively between two or more contracting authority Utilities and which implements co-operation between those Utilities with the aim of ensuring the public services they have to perform are provided. The co-operation must be governed solely by considerations in the public interest and the participating Utilities cannot perform more than 20% of the activities concerned on the open market.
For (private sector) Utilities the existing exemption for affiliated undertakings (i.e. in-group companies) also applies under the UCR 2016; a contract awarded by a Utility to an ‘affiliated undertaking’ is not covered by the UCR2016 if at least 80% of the affiliated undertaking’s turnover (in the preceding 3 years) derives from provision of works/services/supplies to the Utility or other companies within its group. ‘group’ companies. Likewise, the existing exemption for the award of a contract by a Utility to a joint venture the members of which are all Utilities (or vice versa) continues (subject to certain conditions) to be available in the UCR 2016.