Public Contracts Regulations 2015 - Regulation 9

Regulation 9 - Public contracts awarded, and design contests organised, pursuant to international rules

Regulation 9 transposes Article 9 of Directive 2014/24/EU on contracts involving international organisations or international rules. Once more, it follows the original closely, albeit with a couple of differences. The first one is that whereas Article 9 excludes those contracts from the application of the whole Directive, whereas Regulation 9 only excludes the application of Part 2. Although Part 2 contains the substantive rules (and is epigraphed "Rules Implementing the Public Contracts Directive"), at least the definitions included in Regulation 2 belong to Part 1 and as such not included in this exclusion. As the substantive rules are all in Part 2 and we need to interpret national law in accordance with EU Law, I do not think this is a major problem.

The second difference is with a cross-reference to Regulation 17 on paragraph 4 which, as highlighted by Albert is not really needed and not present in Article 9.

What about the rest of it then?

In the rest of the Regulation we can find three specific rules regarding projects that are funded totally or partially by international organisations or via international agreements. There is not much to say about them other than they are a clear improvement from the legal regime present in Directive 2004/18/EC. As Albert says, it is a "follow the money" kind of rule. Whomever pays sets the rules of the game.

Although it was not clear the legal grounding under the old legal regime, truth is EU funding bodies already operated under this system, imposing their own rules upon funding recipients, even if they were contracting authorities in their own accord. In practice, nothing will change other than these requirements now having a clear legal basis, at least for contracts above-thresholds. Having said that, these "funder obligations" have (and will) impacted all levels of procurement, including contracts well below the EU thresholds we talked about last Friday, thus raising a question of rule scope expansion via funding agreements.