ABSTRACT
Procedures for the Award of Public Works Contracts in the Countries of the European Community” [1990] ICLR 5; Heiermann, “The EC Directive Concerning Co-ordination of Procedures for the Award of Public Works Contracts” [1990] ICLR 76; Boncompagni, “The Main Features of the Community Directives” [1990] ICLR 225; André-Dumont, “European Community” [1991] ICLR 125; Van Houtte, “The Impact of Europe Upon the Construction Industry” [1991] ICLR 209; Hadjimiltis, “European Public Procurement and Construction: Implementation in Cyprus” [2004] ICLR 197. See also Knechtel and Wiegand, “1992: The Internal EC Construction Market Data – Facts – Commentaries” [1989] ICLR 4. 55 The definition of “contracting authority” is found in regulation 2(1). Although some utilities may fall within the definition of a “contracting authority”, Public Contracts Regulations 2015 regulation 7 excludes the regulations from application to utilities that are regulated under the separate, but largely equivalent, Utilities Contracts Regulations 2006. 56 The “state” is a broad concept, embracing most manifestations of government. By way of illustration, it was established by the ECJ in Gebroeders Beentjes BV v Netherlands [1988] ECR 4635 that “the state” included a local land consolidation committee. See also Commission v Kingdom of Belgium, C-323/96 (noted by AndréDumont, “Public Procurement” [1999] ICLR 316); Nijholt, “The Concept of a ‘Body Governed by Public Law’ in European Procurement Law” [2005] ICLR 422. 57 An “economic operator” is a person or entity (or any combination thereof) which “offers the execution of works or a work, the supply of products or the provision of services on the market”: regulation 2(1). 58 “Public contracts” are defined in Public Contracts Regulations 2015 (SI 2015/102) regulation 2(1) as “contracts for pecuniary interest concluded in writing between one or more economic operations and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services”. 59 “Design contests” are defined in Public Contracts Regulations 2015 (SI 2015/102) regulation 2(1) as “those procedures which enable a contracting authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to completion with or without the award of prizes”. 60 Public Contracts Regulations 2015 (SI 2015/102) regulation 2(1). Schedule 2 to the Regulations lists the activities constituting “works”. A development agreement between a contracting authority and a developer may constitute a public works contract where the developer is under a legal obligation to carry out the works and if the works were of direct economic benefit to the public authority: Case C-451/08, Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben [2010] 3 CMLR 18; AG Quidnet Hounslow LLP v London Borough of Hounslow [2012] EWHC 2639 (TCC) at [22]–[26], per Coulson J. See also Bregman, “Two road maps for EU-proof land deals” [2015] ICLR 155. 61 Public Contracts Regulations 2015 (SI 2015/102) regulations 7-17. 62 Public Contracts Regulations 2015 (SI 2015/102) regulation 5. For example, the threshold for a public works contract is currently €5,186,000: Public Contracts Directive (2014/24/EU) Article 4(a). See
expanded scope of operation. Whereas the 2006 Regulations operated to ensure that European procurement was carried out without discrimination against economic operators based on their origin in Europe, the 2015 Regulations give effect to the World Trade Organisation Agreement on Government Procurement (“GPA”),63 as amended, so as to require contracting authorities to afford “no less favourable treatment” to economic operators from countries that are signatories to the GPA64 and to other relevant agreements to which the EU is bound.65 Furthermore, contracting authorities are required to “treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner”.66
