Constitution Part 4 - Contract procedure rules

Part F - Strategic partnerships

12. Strategic partnership contracting provisions

  • i) There are a wide range of possibilities with regard to the establishment of Strategic Partnerships however care must be taken to consider the possible impact of public procurement regulations when considering any such course of action.
  • ii) Examples of public-public co-operation arrangements which may be exempt from the Public Procurement regulations are:
    • a) Public tasks performed by own resources

Under the procurement rules, a contracting authority remains free to perform the public tasks conferred on it by using its own administrative technical and other resources, without being obliged to call on outside entities not forming part of its own structure. The procurement rules do not apply where a contracting authority performs a public task by using its own resources in such a way that no contract for financial interest is concluded, because the situation is internal to one and the same legal person.

The possibility of performing public tasks using own resources may also be exercised in co-operation with other contracting authorities provided this does not involve remuneration or any exchange of reciprocal rights and obligations, there is no service provision within the meaning of EU public procurement law.

However, where contracting authorities conclude contracts for financial interest with one another, the case law indicates that this may in certain circumstances (despite the general principle) fall outside the scope of the procurement rules. Where contracting Authorities co-operate with a view to jointly ensuring the execution of public interest tasks, then this may involve the award of contracts without triggering the obligation to apply EU public procurement law.

  • iii) Clearly the possibilities for establishing Strategic Partnerships without undertaking a competitive procurement exercise do exist, although, as stated earlier, this is a very complex area and any such proposals must initially be passed to the Council’s Legal Division for consideration.