To which entities do the public procurement rules apply? This is a fundamental gateway question. For the great majority of entities, the answer is clear – entities such as State authorities, government departments and local and regional authorities are obviously all covered.
A potential grey area arises in respect of entities that are linked to the State in some way but may or may not be subject to the procurement rules. In the EU regime, these are “bodies governed by public law.” Much of the case law on the topic of entity coverage is concerned with the test for such bodies.
The regime for Utilities can also raise questions as to whether a particular entity engaged in utilities provision is covered, with that regime also encompassing public undertakings and entities which have been granted special or exclusive rights.
The UK Procurement Act 2023 follows a broadly similar approach. Again, there is no doubt about the application of the Act’s procurement rules to arms of government and the State. The Act’s concept of “public authority” will, however, capture a broader category of entities that are linked to the State.
While a section on Utilities is to come, the below does include an analysis of the English High Court judgment in Alstom, which remains an important authority on the application of the Utilities regime. However, the main focus is on the classic regime and various issues are addressed:
- Will an entity majority-owned by the State be subject to procurement?
- Is indirect control by the State sufficient to bring an entity with the procurement regime?
- What kinds of payments are considered to constitute public financing?
- What does it mean for an entity to be financed “for the most part” by the State?
- What time period is used to determine the sources of the entity’s financing?
- What degree of management control is necessary for an entity to be considered to be within the State’s supervision?
- Does the existence of significant competition mean that the entity is not a contracting authority?
- What if the needs services by the entity can be met by private undertakings?