Traditionally and through the evolution of the Public Procurement acquis, works contracts subsidised directly by more than 50% by Member States could fall within the scope of the Works Directive.1 Works that were not subsidised directly, or for less than 50%, fell outside of this anti-circumvention provision. Not all subsidised works fall within the scope of public procurement regulation: only civil engineering works, such as the construction of roads, bridges and railways, as well as building work for hospitals; facilities intended for sports, recreation and leisure; and university buildings and buildings used for administrative purposes are referred to as ‘subsidised works contracts’.2 That list was exhaustive. The Works Directive did not apply to works contracts which are declared secret or the execution of which must be accompanied by special security measures3 in accordance with the laws, regulations or administrative provisions in force in the Member State concerned; nor does the Directive apply to works contracts when the protection of the basic interests of the Member States’ security so required. Finally, the Works Directive did not apply to public works contracts awarded in pursuance of certain international agreements;4 nor did the Directive apply to public works contracts awarded pursuant to the particular procedure of an international organisation5 such as NATO, which has their own rules on the awarding of public works contracts. The new codified Public Sector Directive has introduced a series of new concepts that are the product of jurisprudential inferences and policy refining of the previous legal regimes. They intend to modernise public purchasing, aligning the procurement of government and its agencies with those of utilities that operate in more commercially-oriented environments.
Keywords: abnormally low tender; predatory pricing; subsidies