Exclusions from LOU

There are three main exclusions from LOU.

 The three main exclusions are:

Procurement under LUF

A separate law with slightly more flexible rules applies to procurement within the utilities sectors – Act on Procurement within the Water, Energy, Transport and Postal Services Sectors 2007:1092 – LUF).

In some cases a contracting authority, for example a municipality, may conduct operations within the framework of both procurement laws, i.e LUF and LOU. The ecisive feature for whether a procurement should be conducted under LOU or LUF is the operation for which the subject matter of the contract is intended. If the subject matter of the contract is intended for both operations, a balance of probabilities may be applied. LOU shall be applied if it is not possible to determine which operation the contract primarily refers to.

Specific exclusions

The European Court of Justice has pronounced that provisions which authorise derogations from the public procurement rules shall be interpreted restrictively.

The European Court of Justice has pronounced that provisions which authorise derogations from the public procurement rules shall be interpreted restrictively, and that the burden of proving the existence of exceptional circumstances justifying the derogation lies on the contracting authority seeking to rely on those circumstances. One example of award of contracts that are excluded from the application of LOU is contracts for the principal purpose of permitting a contracting authority to provide or exploit public telecommunications networks or to provide telecommunications services to the public. Other contracts excluded are, for example, those concerning the acquisition and rental of land and existing buildings, employment contracts, certain research and development services, arbitration and conciliation services and contracts regarding certain financial services.

Certain contracts awarded on the basis of rules agreed in international organisations etc. are also excluded.

LOU does not apply to contracts concluded with a company owned by the contracting authority, if the contracting authority exercises control over the company corresponding to the control it exercises over its own departments, and that company carries out the essentiel part of its activities with the controlling contracting authority.

Concessions

The same detailed rules do not apply to procurement of public works concessions and service concessions as to other procurement. There are, for example, special rules concerning the publication of a contract notice and time limits for procurements involving public works concessions. Service concessions are excluded from the scope of the Act, but are subject to the fundamental EU law principles for public procurement.

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