Moved by
Baroness Neville-Rolfe
2: Clause 1, page 1, line 5, leave out from first “authority” to end of line 10 on page 2 and insert “, or
(b) in the case of a utilities contract, a public authority, public undertaking or private utility,
other than an excluded authority.
(2) In this Act—
“public authority” means a person that is—
(a) wholly or mainly funded out of public funds, or
(b) subject to public authority oversight,
and does not operate on a commercial basis (but see subsection (8A));
“public undertaking” means a person that—
(a) is subject to public authority oversight, and
(b) operates on a commercial basis;
“private utility” means a person that—
(a) is not a public authority or public undertaking, and
(b) carries out a utility activity.
(3) A person is subject to public authority oversight if the person is subject to the management or control of—
(a) one or more public authorities, or
(b) a board more than half of the members of which are appointed by one or more public authorities.
(4) The following are examples of factors to be taken into account in determining whether a person operates on a commercial basis—
(a) whether the person operates on the basis that its losses would be borne, or its continued operation secured, by a public authority (whether directly or indirectly);
(b) whether the person contracts on terms more favourable than those that might reasonably have been available to it had it not been associated with a public authority;
(c) whether the person operates on a market that is subject to fair and effective competition.
(5) The following authorities are excluded authorities—
(a) a devolved Scottish authority;
(b) the Security Service, the Secret Intelligence Service and the Government Communications Headquarters;
(c) the Advanced Research and Invention Agency;
(d) any person that is subject to public authority oversight—
(i) only by reference to a devolved Scottish authority, or
(ii) by reference to an authority mentioned in paragraph (b) or (c).”
Member’s explanatory statement
This amendment would change the definition of contracting authority to better deal with the difference between a public authority and public undertaking and to exclude certain bodies which, despite their relationship with public authorities, operate on a commercial basis.