Utilities' exclusion under Reg.7 Public Contracts Regulations 2015

Reg. 7 of the Public Contracts Regulations 2015 (PCR2015) sets the exclusion from its Part 2 rules for utilities-related procurement, which is instead covered by the Utilities Contracts Regulations 2006 (SI 2006/6, as amended--and which are now to be adjusted to the rules of Directive 2014/25, either through a repeal or further amendment). Reg.7 PCR2015 significantly departs from the structure and content of Art 7 of Directive 2014/24 on exclusions applicable to the water, energy, transport and postal services sectors (see Pedro's comments here).

 Art 7 Dir 2014/24 establishes a direct cross-reference to Dir 2014/25 and excludes from its own rules the public contracts and design contests that are either covered by Directive 2014/25 or expressly excluded from its scope of application. Instead of following the same approach, reg.7 PCR2015 keeps a "domestic" list of exclusions with references to the definitions and schedules of activities of the Utilities Contracts Regulations 2006

This creates the practical difficulty of assessing the compatibility or otherwise of such "old" definitions and schedules with the new coverage of Dir 2014/25 (and art 7 Dir 2014/24). However, given that the scope of application of the utilities rules has not been altered significantly in the 2014 revision (ie, Dir 2004/17 and Dir 2014/25 have almost the same scope of application), this is not a significant practical problem

Indeed, "[t]he only change in this regard is in relation to the energy sector where the exploration for oil and gas [is] no longer be regulated" [T Kotsonis, "The 2014 Utilities Directive of the EU: codification, flexibilisation and other misdemeanours" (2014) 23(4) Public Procurement Law Review 169-187, 170]. Such exclusion for exploration is included in reg.7(e)(iii) PCR2015.

Hence, it seems that the coordination of the scope of application of the PCR2015 and the Utilities Contracts Regulations 2006 remains aligned with the coordination provisions of Dir 2014/24 and Dir 2014/25.