Understanding the impact of the Teckal Test on procurement and competition for mutuals

By David Bicknell

I recently wrote about the impact on procurement for mutual and social enterprises of the Teckal Test, which tests whether contracts and the contractor are under the public authority’s direct control.

Broadly speaking, the Public Contract Regulations (2006) apply whenever a contracting authority seeks offers in relation to public contracts. The Regulations give effect in UK law to Council Directive (2004/18/EC) on the co-ordination of  procedures for the award of such public contracts.

This has implications for mutuals, because case law of the European Court of Justice has developed an exception from the normal application of the procurement rules, known as the Teckal exemption, where contracting authorities award contracts for providing services or works to an “in house” provider.

The exemption works on the basis that the contract being awarded is not a “public contract” for the purposes of the Directive and, as a result, the Regulations do not apply and EU law will not require the  contract to be put out to tender.

If you’re interested in Teckal, these links may be useful:

http://opinion.publicfinance.co.uk/2011/07/mixed-up-over-mutuals/

http://www.farrer.co.uk/Global/Briefings/16.%20Briefing/Public%20Procurement%20Update.pdf

http://publicsector.practicallaw.com/blog/publicsector/plc/?p=475 

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