Utilities Procurement

Utilities Directive

Public utilities such as water, waste, electricity and telecommunication have been liberalised in the context of EU state aids and competition rules Many entities have been privatized. There is accordingly a separate Utilities Directive that is less rigid, that applies to public sector authorities.

Utilities procurement has been restructured from its earlier incarnation with a relaxation of some requirement to complete disengagement from procurement rules for sectors that operate under competitive conditions in particular, in the telecommunications sector.

The new Utilities Directive does not regard telecommunications utilities as contracting entities for the purpose of procurement. See the separate sections on deregulation in telecommunications. Conversely,the postal sector which is previously outside the utilities regime is now within it.

There are a number of principles that apply to the award of a contract.  Contracting authorities must treat tenderers equally and in a non-discriminatory manner.  They must act in a transparent way. Confidentiality obligations may apply where it is necessary to protect confidential information.

Scope

The Utilities Directive brought within the procurement framework, entities operating in water, energy, transport and certain telecommunications sectors.  Entities that are public or governed by public law are included.  This includes entities over which the state has a direct or indirect dominant influenced by ownership,  financial participation or by means of laws and regulations governing its operation.

Utilities may include entities that have been granted exclusive rights,  special licenses or right to operate the service. Rights are not necessarily deemed special or exclusive because they carry rights of compulsory acquisition or deal with key facilities such as electricity, water, gas, heat, et cetera.

A concession to a number of undertakings on the basis of objective proportionate non-discriminatory criteria which allow any interested party to enjoy the rights are not deemed special / exclusive.

The rules do not apply to certain associated businesses or undertakings that are affiliated with the main entity in a joint venture or in a group arrangement.  The exclusion applies when the undertaking affiliated to the transacting authority has at least a certain percent of its turnover derive from the provision of the same or similar services to the undertakings to which it is affiliated.  The rules do not apply to contracts with the affiliate.

There is a procedure that allows the effects of current or future opening of  competition to be taken into account.  Where the competition is sufficnetly open, the procurement rules will not apply any longer.  The legislation sets out criteria for when the utility may be judged sufficiently open to competition.

Contracts Covered

The Utilities Directive applies to awards of contracts between contractor, suppliers or service providers and contracting entities.  It may relate to the execution of works, the provision of products or  services, where the contract relates  to activities listed in the directives. Supply contracts in relation to goods and services are within the scope of the directive.

The types of contracts affected are defined under the Utilities Directive.  A concession agreement is covered.

In this context, a dynamic purchasing system and electronic auction have the same meanings as  in public sector procurement.

Candidates and tenderers must not be prohibited from providing services solely on the grounds that they required to be natural persons or corporate entities.   However, legal entities may be required to give details of the names and relevant qualifications of the staff responsible for performing the function.

Groups of corporations may put themselves forward as candidates.  They may not be required to assume a specific legal form at tender stage although they may be so required as part of the tender contract award itself.

Activities Covered

The activities covered by the Utilities Directive include the following

• provision and  operation of fixed networks in order to provide a service to the public in connection with the production, transport and distribution of gas or heat
• operation of fixed networks intended to provide a service to the public in connection with the production transport and distribution of electricity
• provision of water, fixed network or operation of fixed network, intended to provide a service to the public in connection with the production transport and provision of drinking water
• provision and operation of networks providing a service to the public in the field of transfer by railway, tramway, trolley, bus or cable
• provision of postal services consisting of clearance, sorting, roofing, and delivery of postal items.  Also covered are ancillary services including mail service, management services, value added services and other related postal services
• activities relating to the exploration of oil, gas and coal
• construction of airports, maritime ports and other terminal facilities for carriers by air, sea, inland waterway
• contracts covering several activities

Exemptions & Exclusions

There are exemptions and conditions in relation to each of the above types of utility.

The regulations do not apply to certain categories of contract, including

• contracts for the purpose of resale or lease to third parties provided the contracting entity enjoys no special or exclusive right to sale or lease the subject matter of the contract,
• contracts for purposes other than the pursuit of an activity covered for the pursuit of the activity in a third country.
• contracts which are secret and require special security measures
• contracts awarded pursuant to international agreements in accordance with a treaty ( e.g.  joint exploitation of a project by states)

There is an exception for contracts through an affiliated undertaking, joint venture or entity.The affiliated undertaking must have accounts consolidated in accordance with EU directive on consolidated companies’ accounts.  In the case of entities not subject to the directive, the undertaking must be such that the contracting entity may exercise direct and indirectly a dominant influence. The above-mentioned 80 percent threshold must apply.  At least 80 percent of the turnover of the affiliated must represent supplies to be undertaking with which it is affiliated in the proceeding three years.

Also excluded from the directive are

• contracts for letting a building and immovable property
• arbitration and conciliation services
• financial services in connection with the issue of securities
  employment contracts
• certain research and development contracts
• certain contracts by entities involved in the network distribution of water

The directive does not apply to service contracts awarded to an entity which is itself a contracting authority or to an association of contracting authority from the basis of an exclusive right which they enjoy pursuant to law, regulation or administrative provision which is compatible with the EU treaties.

There are special arrangements in relation to particular sectors

involving the extraction of oil, gas, coal or other solid fuels.  States must ensure that they comply with conditions for exclusion,  observe principles of non-discrimination and otherwise maintain principles of competitive procurement,
reserved contracts in the context of sheltered employment
certain contracts awarded by central purchasing bodies where they otherwise comply with the procurement regime

A significant exclusion relates to contracts where activities are exposed to competition.  The requisite procedure for establishing whether the activity is sufficiently exposed to competition must be followed.  An application is made and the Commission makes a decision as to whether the sector is sufficiently exposed to competition.

Values

The Utilities Directive applies to contracts with value as follows

€499,000 euro in respect of supply and service contracts
€6,242,000  in the case of work contracts.

There are rules for the calculation of the sums. The sum is net of VAT.

Contracting entities must not seek to avoid the threshold by dividing works to circumvent the threshold.  In the case of framework agreements and dynamic purchasing systems, the value must be the maximum established value of all the contracts envisaged for the total term of the framework or dynamic purchasing system.

Where contracts are offered in separate lots, the total estimated value of the lots must be considered.  In the case of contracts that are regular and intended to be renewed, the calculation is based on the total value of contracts of the same type award during the preceding 12 months.  If possible, adjusted to take account of changes in quantity or value which would occur in the course of the following 12 months or the total estimated value of successive contracts awarded during the 12 months following the first delivery.

In the case of leasing, hiring, rental or hire, there are special rules for estimating the value of the contract.

The thresholds are revised in accordance with changes in the average value of the euro expressing in Special Drawing Rights over the period

Information to be Maintained

Contracting entities must keep appropriate information on each contract which must be sufficient to allow them

to justify the decision in conjunction with qualification, selection of tenderers and award of contract,
use of procedures without a prior call for a competition where applicable,
alleged non-application by virtue of derogation.

The information must be retained for a specified period.

States must ensure that the Commission receives statistical information on the total value broken down by State and category of activity in accordance with the directive, of contracts awarded below the thresholds which would be covered but for those thresholds.  States must ensure the Commission receives statistical reports on contracts awarded