All utilities whose procurement is covered by the Utilities Contracts Regulations 2016 and the Utilities Contracts (Scotland) Regulations 2016 which are contracting authorities (e.g. those covered under Annex 1 and Annex 2) or public undertakings1 and which have as one of their activities any of those referred to below or any combination thereof:
a the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water or the supply of drinking water to such networks;
b the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity or the supply of electricity to such networks;
c the provision of airport or other terminal facilities to carriers by air;
d the provision of maritime or inland port or other terminal facilities to carriers by sea or inland waterway;
e the provision or operation of networks2 providing a service to the public in the field of transport by urban railway, automated systems, tramway, trolley bus, bus or cable;
f the provision or operation of networks providing a service to the public in the field of transport by railways.3
Referenced Notes:
1 According to the Utilities Contracts Regulations 2016, a "public undertaking" means any undertaking over which contracting authorities may exercise directly or indirectly a dominant influence by virtue of:
a) their ownership of that undertaking;
b) their financial participation in that undertaking; or
c) the rules which govern that undertaking.
According to the Utilities Contracts (Scotland) Regulations 2016, a "public undertaking" means a person over which one or more contracting authorities are able to exercise, directly or indirectly, a dominant influence by virtue of one or more of the following:
a) their ownership of that person;
b) their financial participation in that person;
c) the rights accorded to them by the rules which govern that person.
According to both the Utilities Contracts Regulations 2016 and the Utilities Contracts (Scotland) Regulations 2016, a dominant influence on the part of contracting authorities is presumed in any of the following cases in which those authorities, directly or indirectly:
a) hold the majority of the undertaking's subscribed capital;
b) control the majority of the votes attaching to shares issued by the undertaking;
c) can appoint more than half of the undertaking's administrative, management or supervisory body.
2 As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of the United Kingdom such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.
3 E.g. the provision or operation of networks (within the meaning of footnote 4) providing a service to the public in the field of transport by high-speed or conventional trains.