ONS Statement regarding classification of Registered Providers and Public Procurement
The Office for National Statistics (ONS) has released a series of statements on 1 October, 20 October and 30 October 2017 regarding the reclassification of Housing Associations for the purposes of the public balance sheet from 'public' to 'private'.
EU procurement regulations (Directive 2014/24/EU and Directive 2014/23/EU), as implemented in England, Wales and Northern Ireland through the Public Contracts Regulations 2015 and the Concession Contracts Regulations 2016, respectively, ("EU procurement law") apply to Registered Providers by virtue of these bodies falling under the category of "bodies governed by public law".
The ONS reclassification is led by HM Treasury as part of a policy to move Housing Associations off the public balance sheet. This does not, in itself, affect the classification of Registered Providers of housing as "bodies governed by public law." for the purposes of EU procurement law.
The application of the EU procurement regulations to Registered Providers was confirmed by the then Office of the Deputy Prime Minister on 10 September 2004. This confirmation followed the earlier "HLM" judgment (Case C-237/99) concerning Housing Associations in France and the subsequent opening of infringement proceedings against the United Kingdom in 2001 for not applying EU procurement law to "Registered Social Landlords" (now "Registered Providers of Housing").
The test for categorising "bodies governed by public law", as set out in EU procurement law remains unchanged and the UK Government would need to show the EU Commission that the steps taken by it to reduce regulation in order to remove Housing Associations from the public balance sheet was sufficient to bring Registered Providers outside of the previous classification for the purposes of EU procurement law. This is a separate process from the ONS de-classification. Accordingly, Registered Providers should continue to apply EU procurement law to their procurement activity.
Read the statements below: