Public Contracts Regulations 2015 - Regulation 8

Regulation 8 - Specific exclusions in the field of electronic communications

As Albert put it, Regulation 8 does not offer much scope for comment. In first instance, I agreed with him but when I started digging I found some interesting points to comment, making a mountain out of a mole hill, perhaps.

Regulation 8 spans a grand total of four lines providing excluding the application of Part 2 to specific contracts, framework agreements and dynamic purchasing systems where the principal purpose is to provide public communications networks or providing the public with electronic communications services. Paragraph 2 of the Regulation cross-references "public communications network" and "electronic communications service" to the definitions provided in Directive 2002/22/EC. According to Article 2(c) and (d) of this Directive they mean respectively:

"electronic communications service" means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services, as defined in Article 1 of Directive 98/34/EC, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks

"public communications network" means an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services

Out of the top of my head the only example I can think of are municipal wifi networks such as the one Barcelona and other Spanish cities provide. I know that Regulation 8 simply copies and pastes Article 8 of Directive 2014/24/EU, but one must wonder what is the logic behind this exclusion as the contracting authority will not be operating under marked conditions - which was the reason why communications were dropped from Utilities rules ages ago - but offering a public service that could be analogous to water, electricity or waste disposal. The first two are currently covered by the current Utilities Directive (Directive 2014/25/EU) whereas the third is fully covered by Directive 2014/24/EU. It would seem that if a municipality wants to offer a free wifi service,* the procurement will be completely exempt from the bulk of EU rules as neither Directive is applicable. It simply does not make sense to me, particularly as creative contracting authorities could use the principal purpose excuse to attach unconnected items or services to that excluded contract. I will let any competition law considerations for Albert in the meanwhile.

* Yes, the definition of Directive 2002/22/EC Article 2(c) refers to normally paid services and it can be argued that wifi is normally provided for a fee but i) the definition does not exclude free services; ii) the market has evolved significantly since 2002 and there are quite a few providers that now offer free wifi, for example in cafes and restaurants.

Public Contracts Regulations 2015 - Regulation 7

Most of the Public Contracts Regulations 2015 comes into force today. We will see if public sector and suppliers are ready for the changes introduced. I still think this is too fast a transposition and too short a vacatio legis...

Regulation 7 - Utilities

Regulation 7 excludes the application of Part 2 of the Public Contracts Regulations to a number of activities under the Utilities sector which are regulated by Directive 2014/25/EU. The Public Contracts Regulations 2015 do not transpose this Directive, leaving that particular transposition (as well as the one for Directive 2014/23/EU) for the next Parliament. It makes sense then to exclude utilities contracts from the scope of application. However, one should not forget this specific exclusion from Regulation 7 only applies to Part 2 and not the rest of the Public Contracts Regulations.

As mentioned by Albert, Regulation 7 follows a different structure and content from what can be found in Article 7 of Directive 2014/24/EU. This Regulation effectively follows the approach taken in 2006 with the Utilities Contracts Regulations 2006 and one that is different from EU law. This different structure can create some practical problems, but as the scope of Utilities coverage remains mostly unchanged and there were no issues with the Utilities Contracts Regulations 2006, then probably the practical relevance will be small or none.