Dukes Bailiffs Ltd v Breckland Council [2023] EWHC 1569 (TCC) (26 June 2023) (bailii.org)
Dukes Bailiff challenged a contract award for debt enforcement services under the PCR however Breckland Council successfully argued that the PCR did not apply as the contract was in fact a concession contract. As the value of the contract was below the threshold under the CCR, those regulations did not apply so Dukes Bailiff did not have any basis for a claim. It is important for contracting authorities to understand the distinction between the PCR and the CCR, not least because the rules are not the same and the financial threshold in the CCR for services and supplies is much higher than that in the PCR so impacts whether or not a procurement falls under a regulated regime at all.
The court summarised the five stage test to determine if a contract is a services concession contract:
- What is the relevant contract?
- Was the relevant contract for a pecuniary interest?
- Is the contract “concluded in writing by means of which one or more contracting authorities or utilities entrust the provision and management of services (other than execution of works) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment“? (Regulation 3(3)(a) CCR)
- Will the award of the contract “involve the transfer to the concessionaire of an operating risk in exploiting the services encompassing demand or supply risk or both“? (i.e. there is no guarantee of breaking even in normal operating conditions) (Regulation 3(4)(a) CCR)
- Does the part of the risk transferred to the concessionaire “involve real exposure to the vagaries of the market such that any potential estimated loss incurred by it shall not be merely nominal or negligible“? (Regulation 3(4)(b) CCR)
In2 the bargain 