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Is it a grant or a procurement when Public bodies work together?

When public bodies work together, is there a public/public partnership funded by a grant or is there a procurement by a public body of the services of another? How do we tell the difference and why does it matter?
It matters because if what is happening really does fall under procurement law, failure to go through the right processes could derail a programme for a long time or give rise to a hefty damages claim from other potential providers.
The clearest guidance so far has been given by A-G Trstenjak in her recent Opinion at the European Court of Justice (Case C-159/11 (Azienda Sanitaria Locale de Lecce (ASL) v Ordine degli Ingegneri della Provincia di Lecce(OIPL) and others). ASL and Salento University agreed that the University would carry out a study of the vulnerability of hospitals in Lecce to seismic disturbance. The studies would be funded by grants to cover costs. Essentially, the Opinion sets out that although the study was to serve a public interest purpose, that purpose was a purpose of  ASL alone, not a common purpose of  ASL and the University. The true role of the University was that it was provider of a service purchased by ASL for a fee (the absence of a profit element was irrelevant). The contract should have been put out to competition by a procurement process.
We do not have the Court’s judgment yet. But if anyone still thinks that procurement can be sidestepped by calling a project a “study” and the fee a “grant”, now would be a good time to think again. There will be a knock-on effect on VAT because the same legal reasoning will identify times when public authorities become “taxable persons”.

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