Contracts Covered

Both the EU and the UK procurement rules define the kinds of contracts that are covered by the rules, with the term “public contract” being used in both regimes and defined in similar terms.

The categorisation of a contract as a works, services or supply contract is of significant importance given the higher monetary thresholds that apply to works compared to contracts for the supply of goods or services.

But more fundamental questions can also arise, where, for example, it is not clear whether the contract at issue falls outside the definition of a public contract altogether. This issue has arisen, in particular, in relation to land development agreements and a separate section on Land Agreements addresses this issue.

The questions whether an arrangement is a concession (and subject to Directive 2014/23) might also require assessment.

The central features of this fundamental threshold question are addressed below, including discussion of:

• The details of the statutory definitions of a public contract and different kinds of public contracts
• How does the burden of proof operate in cases where there is a dispute about whether an arrangement gives rise to a public contract?
• Is the categorisation of an agreement under national law relevant to the question whether it is subject to the procurement rules?
• What is meant by the “normal conditions” of a commercial arrangement?
• What if the arrangement involves the transfer of official authority?
• What exactly is meant by a contract for “pecuniary interest”?