Regulation 10 – Specific exclusions for service contracts

Commentary

Following the list of specific derogations in Art 10 of Directive 2014/24/EU, Regulation 10 PCR2015 lists a significant number of services contracts that are excluded from the procurement rules of its Part 2. 

Under the specific exclusions for service contracts, a relatively large number of categories are excluded concerning rental of land, existing buildings or other immovable property, audiovisual and radio programmes, arbitration and conciliation services, legal services, financial services, loans, employment contracts, civil defence, rail and metro transportation services, as well as political campaigns. These exclusions are exactly the same at domestic and EU level and some of them have been included as a result of the suppression of Part B services in the 2014 rules. 

In our view, some of the justifications are easier to support than others. All those concerned with legal services seem quite problematic, though, as there seems to be no clear advantage for the public sector in having unfettered discretion to choose its legal counsel. Similar considerations make the exclusion of financial services dubious. Other professional services are covered by the rules in Directive 2014/24/EU and the PCR2015, which raises the question of which particular difficulty would there be to choose appropriate providers of legal and financial services under the applicable rules (eg, through a competitive procurement with negotiation with particular requirements in terms of experience and accreditation of the specific members of staff to provide the services, in the case of legal services; or through reverse electronic auctions within a dynamic purchasing system for the provision of financial services, which seems rather close to the liquidity auctions that central banks have been conducting for decades anyway). It would have been preferable to subject both to the full legal framework set by Part 2.

It is our view as well that the list of exclusions is excessive and should be pruned. While there are up and coming business areas which might have benefited from being included in Regulation 10 as they develop (digital industries, cryptocurrencies/fintech, Internet of Things) the exception is excessive for legacy industries. For example, it is unclear what is the substantive reason justifying why ‘rail passenger transport’ is functionally different from bus, taxi or ferry services.

Obviously, one cannot expect the UK to do so unilaterally, particularly in view of the relevance of its legal and financial sectors. For the time being, we are putting such a reduction of the list of exclusions in our wishlist for the next round of reform of the EU rules.

Last modified: July 4, 2016 by Pedro Telles

Specific exclusions for service contracts

10.—(1) This Part does not apply to public service contracts—

(a) for the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property, or which concern interests in or rights over any of them;

(b) for—

(i) the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media service providers, or

(ii) broadcasting time or programme provision that are awarded to audiovisual or radio media service providers;

(c) for arbitration or conciliation services;

(d) for any of the following legal services:—

(i) legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC(1), as amended from time to time, in—

(aa) an arbitration or conciliation held in a member State, a third country or before an international arbitration or conciliation instance, or

(bb) judicial proceedings before the courts, tribunals or public authorities of a member State or a third country or before international courts, tribunals or institutions;

(ii) legal advice given—

(aa) in preparation of any of the proceedings referred to in paragraph (i), or

(bb) where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings,

provided that the advice is given by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC as amended from time to time;

(iii) document certification and authentication services which must be provided by notaries;

(iv) legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;

(v) other legal services which in the member State concerned are connected, even occasionally, with the exercise of official authority;