PART 1GENERAL

Citation, commencement, extent and transitional etc. provision

1.—(1) These Regulations may be cited as the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020.

(2) Except for regulations 2, 7, 9, 11 and 26, these Regulations come into force on IP completion day.

(3) Regulation 2 comes into force on the day after the day on which these Regulations are made.

(4) Regulations 7, 9, 11 and 26 come into force 12 months after the day on which IP completion day falls.

(5) Regulation 23 does not extend to Scotland.

(6) The Schedule—

(a)makes provision in relation to procurements that are ongoing on IP completion day, including provision—

(i)disapplying in relation to such procurements certain amendments etc. made or to be made (whether by these Regulations or otherwise) in relation to public procurement;

(ii)modifying various references in certain regulations that apply to such procurements;

(b)makes other savings in relation to certain provisions of these Regulations.

Revocation of superseded EU exit regulations

2. The following are revoked—

(a)the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019(2);

(b)the Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulations 2019(3).

PART 2AMENDMENT OF PRIMARY LEGISLATION

The Greater London Authority Act 1999

3.—(1)The Greater London Authority Act 1999(4) is amended as follows.

(2) In section 355 (duties of waste collection authorities etc.), in subsection (8)—

(a)in paragraph (b)—

(i)for “sends” substitute “submits”;

(ii)for “Publications Office of the European Union” substitute “UK e-notification service”;

(b)in paragraph (c), for “sends” substitute “submits”.

(3) In section 356 (directions by the Mayor), in subsection (3A)(b)—

(a)for “sent” substitute “submitted”;

(b)for “Publications Office of the European Union” substitute “UK e-notification service”.

(4) In section 358 (information about new waste contracts)—

(a)in subsection (1ZA)(a)—

(i)for “send” substitute “submit”;

(ii)for “Publications Office of the European Union” substitute “UK e-notification service”;

(b)in subsection (1A), in the words before paragraph (a) and in paragraph (a), for “send” substitute “submit”;

(c)in subsection (1BA)—

(i)in paragraph (a), for “send” substitute “submit”;

(ii)in paragraph (b)—

(aa)for “send” substitute “submit”;

(bb)for “Publications Office of the European Union” substitute “UK e-notification service”;

(d)in subsection (1C), in the words before paragraph (a) and in paragraph (a), for “send” substitute “submit”.

(5) In section 360 (interpretation of sections 353 to 359), in subsection (2), after the definition of “treatment” insert—

““the UK e-notification service” has the same meaning as in the Public Procurement Regulations”.

The Equality Act 2010

4.—(1)The Equality Act 2010(5) is amended as follows.

(2) In section 155 (power to impose specific duties: supplementary)—

(a)in subsection (2), for “Public Sector Directive” substitute “Public Contracts Regulations”;

(b)in subsection (3), for the definitions substitute—

““Public Contracts Regulations” means the Public Contracts Regulations 2015 (S.I. 2015/102) or, in Scotland, the Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446), as amended from time to time;

“public procurement functions” means functions the exercise of which is regulated by Part 2 of the Public Contracts Regulations 2015 (S.I. 2015/102) or by the Public Contracts (Scotland) Regulations 2015 (S.S.I. 2015/446), as amended from time to time.””.

The Public Services (Social Value) Act 2012

5.—(1)The Public Services (Social Value) Act 2012(6) is amended as follows.

(2) In section 1 (contracts of relevant authorities)—

(a)in subsection (2)(a), for “sending a notice to the Publications Office of the European Union” substitute “submitting a notice to the UK e-notification service”;

(b)in subsection (15), after the definition of “sub-central contracting authority” insert—

““the UK e-notification service” has the same meaning as in the Regulations (whether or not the Regulations apply)”.

PART 3AMENDMENT OF SECONDARY LEGISLATION

CHAPTER 1THE PUBLIC CONTRACTS REGULATIONS 2015

Amendments commenced on IP completion day

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Amendments commenced 12 months after IP completion day

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CHAPTER 2THE CONCESSION CONTRACTS REGULATIONS 2016

Amendments commenced on IP completion day

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Amendment commenced 12 months after IP completion day

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CHAPTER 3THE UTILITIES CONTRACTS REGULATIONS 2016

Amendments commenced on IP completion day

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Amendments commenced 12 months after IP completion day

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CHAPTER 4AMENDMENT OF OTHER SUBORDINATE LEGISLATION

The Public Contracts Regulations 2006

12.—(1) To the extent that the Public Contracts Regulations 2006(7) (“the 2006 Regulations”) continue to have prospective effect, their effect is modified as follows.

(2) The 2006 Regulations have prospective effect as if the following were omitted—

(a)regulation 14(2) (which requires certain reports to be supplied to the European Commission on request);

(b)regulation 32(16) (which provides for the provision of certain reports requested by the European Commission);

(c)regulation 40(2) (which requires certain information to be provided for the European Commission).

(3) Where—

(a)immediately before IP completion day, a procurement has been commenced,

(b)on or after IP completion day, a contract is awarded or any other act is done, pursuant to that procurement, and

(c)that award or other act would, if it had occurred before IP completion day, have been covered by an exemption from requirements of the 2006 Regulations by virtue of any provision in those Regulations,

that award or other act is covered by that exemption on and after IP completion day regardless of whether the terms used to define that exemption in the 2006 Regulations would otherwise have been apt to continue to achieve that effect on and after IP completion day.

The Utilities Contracts Regulations 2006

13.—(1) To the extent that the Utilities Contracts Regulations 2006(8) (“the 2006 Regulations”) continue to have prospective effect, their effect is modified as follows.

(2) The 2006 Regulations have prospective effect as if—

(a)regulation 7(7) (which relates to information requested by the European Commission) were omitted;

(b)in regulation 8(3) (which provides for certain information to be sent to or for the European Commission)—

(i)in sub-paragraph (a), the words from “5,000,000 euro” in the words before sub-paragraph (i) to the end of paragraph (xiii) read “£4,101,850, submit, within 48 days of the award, a contract award notice to the UK e-notification service for publication, containing the information referred to in regulation 70(2)(a) of the Utilities Contracts Regulations 2016”;

(ii)in sub-paragraph (b)—

(aa)“400,000 euro” read “£328,150”;

(bb)“5,000,000 euro” read “£4,101,850”;

(cc)paragraph (ii) read as follows—

“(ii)if the Minister requests that information in relation to any such contract, forthwith send it to the Minister;”;

(c)regulation 38(2) (which provides for the provision of certain reports requested by the European Commission) were omitted.

(3) Where—

(a)immediately before IP completion day, a procurement has been commenced,

(b)on or after IP completion day, a contract is awarded or any other act is done, pursuant to that procurement, and

(c)that award or other act would, if it had occurred before IP completion day, have been covered by an exemption from requirements of the 2006 Regulations by virtue of any provision in those Regulations,

that award or other act is covered by that exemption on and after IP completion day regardless of whether the terms used to define that exemption in the 2006 Regulations would otherwise have been apt to continue to achieve that effect on and after IP completion day.

The Service Charges (Consultation Requirements) (England) Regulations 2003

14.—(1)The Service Charges (Consultation Requirements) (England) Regulations 2003(9) are amended as follows.

(2) In regulation 2 (interpretation), in paragraph (1), in the definition of “public notice”, for the words from “published” to the end substitute “published, pursuant to the Public Contracts Regulations 2015, on the UK e-notification service (as defined by those Regulations)”.

The Provision of Services Regulations 2009

15.—(1)The Provision of Services Regulations 2009(10) are amended as follows.

(2) In regulation 31 (certificates and other documents), in paragraph (5)(g), omit “(read with regulation 58(5))”.

The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013

16.—(1)The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013(11) are amended as follows.

(2) In Schedule 2 (application of the Utilities Contracts Regulations 2016), in Part 1, in the entry relating to regulation 99 (information and documentation requirements), in the second column—

(a)for ““the Commission”, in the first place it occurs,” substitute ““the Minister for the Cabinet Office” in sub-paragraph (a)”;

(b)for “, in the second place it occurs,” substitute “as if the subsequent reference to “the Minister” in sub-paragraph (a)”;

(c)for “(3), (8) and (9)” substitute “(3) and (7)(b) and (c).”

PART 4AMENDMENT OF ASSIMILATED DIRECT LEGISLATION

Annex 16 to the EEA Agreement

17. In Annex 16 to the EEA Agreement, omit point 6g (application of Commission Implementing Regulation (EU) 2015/1986).

Regulation 2195/2002 of the European Parliament and of the Council

18.—(1) Regulation 2195/2002 of the European Parliament and of the Council of 5th November 2002 on the Common Procurement Vocabulary (CPV) is amended as follows.

(2) For Articles 2 and 3 substitute the following—

“Article 2

1.The Minister for the Cabinet Office may make regulations amending the Annexes to this Regulation.

2.Regulations under this Article are to be made by statutory instrument.

3.A statutory instrument containing regulations under this Article is subject to annulment in pursuance of a resolution of either House of Parliament.

4.Regulations under this Article may make consequential, supplementary, incidental, transitional, transitory or saving provision.”.

(3) In Article 4, omit the second paragraph.

Commission Decision 2006/211/EC

19.—(1) Commission Article 30(1) of Directive 2004/17/ECWales is amended as follows.

(2) In Article 1, for “Directive 2004/17/ECthe Utilities Contracts Regulations 2016 and the Utilities Contracts (Scotland) Regulations 2016(12)”.

(3) Omit Articles 2 and 3.

Commission Decision 2007/141/EC

20.—(1) Commission Article 30(1) of Directive 2004/17/ECWales is amended as follows.

(2) In Article 1, for “Directive 2004/17/ECthe Utilities Contracts Regulations 2016 and the Utilities Contracts (Scotland) Regulations 2016”.

(3) Omit Articles 2 and 3.

Commission Decision 2010/192/EU

21.—(1) Commission Wales from the application of Directive 2004/17/EC

(2) In Article 1, for “Directive 2004/17/ECthe Utilities Contracts Regulations 2016 and the Utilities Contracts (Scotland) Regulations 2016”.

(3) Omit Article 2.

Commission Implementing Regulation (EU) 2015/1986

22. Commission Implementing Regulation (EU) No 2015/1986 of 11th November 2015 establishing standard forms for the publication of notices in the field of public procurement and repealing Implementing Regulation (EU) No 842/2011 is revoked.

Commission Implementing Regulation (EU) 2016/7

23.—(1) Commission Implementing Regulation (EU) No 2016/7 of 5th January 2016 establishing the standard form for the European Single Procurement Document is amended as follows.

(2) In Article 1—

(a)for the words from the beginning to “2016, the” substitute “The”;

(b)for “European single procurement document” substitute “Single Procurement Document”;

(c)for “Article 59 of Directive 2014/24/EUregulation 59 of the Public Contracts Regulations 2006”.

Commission Implementing Decision (EU) 2017/1870

24.—(1) Commission Implementing Decision (EU) 2017/1870 of 16th October 2017 on the publication of the reference of the European standard on electronic invoicing and the list of its syntaxes pursuant to Directive 2014/55/EU

(2) After Article 1 insert—

“Article 1A

1.The Minister for the Cabinet Office may make regulations—

(a)amending Article 1 so as to substitute—

(i)a reference to a different standard;

(ii)a different reference to the same standard;

(b)amending Article 1 and the Annex so as to substitute, add or remove references to syntaxes.

2.Regulations under this Article are to be made by statutory instrument.

3.A statutory instrument containing regulations under this Article is subject to annulment in pursuance of a resolution of either House of Parliament.

4.Regulations under this Article may make consequential, supplementary, incidental, transitional, transitory or saving provision.”.

(3) Omit Article 2.

(4) In the Annex, for “3(2) of Directive 2014/55/EU

PART 5CESSATION OF RIGHTS ETC.

Cessation of certain prohibitions on the grounds of nationality

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Cessation of rights etc. under certain international agreements

26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 1(6)

SCHEDULETRANSITIONAL ETC. PROVISION

PART 1INTERPRETATION

Interpretation of Schedule

1.—(1) In this Schedule—

“amendment” includes modification and revocation;

“the Procurement Regulations” means the following and, in relation to any procedure, means whichever of the following applies to that procedure—

“the second commencement date” is defined by paragraph 10;

“steady state amendments” is defined by paragraph 2.

(2) In this Schedule, the following have the same meaning as in the Procurement Regulations—

(a)contracting authority;

(b)design contest;

(c)dynamic purchasing system;

(d)economic operator;

(e)framework agreement;

(f)notice on the existence of a qualification system;

(g)periodic indicative notice;

(h)prior information notice;

(i)utility;

(j)voluntary transparency notice.

(3) None of the savings in this Schedule implies any limitation of the scope of any of the other savings in this Schedule(13).

PART 2PROCUREMENTS PENDING ETC. ON IP COMPLETION DAY

Meaning of “steady state amendments”

2. In this Part, “steady state amendments” means—

(a)amendments made by these Regulations; and

(b)any other amendments, including future amendments, to the Procurement Regulations that—

(i)come into force on, or begin to apply from, IP completion day or any time after IP completion day; and

(ii)are not made by or under any of sections 7A, 7B, 7C, 8B and 8C of the European Union (Withdrawal) Act 2018(14).

Saving for procedures launched, but not finalised, before IP completion day

3.—(1)Steady state amendments do not affect any procedure launched by a contracting authority or a utility under the Procurement Regulations if the procedure —

(a)was launched before IP completion day, and

(b)was not yet finalised by IP completion day.

(2) But regulation 61 (recourse to e-Certis) of the Public Contracts Regulations 2015 (which is omitted by regulation 6(42) of these Regulations) ceases to be saved at the beginning of the day that is 9 months after the day on which IP completion day falls.

Meaning of ‘procedure’

(3) In sub-paragraph (1), “procedure” includes—

(a)a procedure using a dynamic purchasing system;

(b)a procedure for which the call for competition takes the form of—

(i)a prior information notice;

(ii)a periodic indicative notice; or

(iii)a notice on the existence of a qualification system.

Meaning of ‘launched’

(4) For the purposes of sub-paragraph (1), a procedure is launched—

(a)when a call for competition or any other invitation to submit applications has been made in accordance with the Procurement Regulations;

(b)where the Procurement Regulations do not require such a call or invitation, when the contracting authority or utility contacted economic operators in relation to the specific procedure.

Meaning of ‘finalised’

(5) For the purposes of sub-paragraph (1), a procedure is finalised—

(a)upon publication of a contract award notice in accordance with the Procurement Regulations;

(b)where the Procurement Regulations do not require the publication of such a notice, upon conclusion of the relevant contract;

(c)where the contracting authority or utility decided not to award a contract, upon informing the tenderers, or persons otherwise entitled to submit applications, of the reasons why the contract was not awarded.

Saving for call-off procedures under certain framework agreements

4.—(1) If the condition in sub-paragraph (2) is met, steady state amendments do not affect any procedure relating to the performance of a framework agreement, including the award of contracts based on such an agreement, under—

(a)regulation 33(4) to (11) of the Public Contracts Regulations 2015;

(b)regulation 51(4) to (6) of the Utilities Contracts Regulations 2016.

(2) The condition is that the framework agreement—

(a)was concluded before IP completion day and had neither expired nor been terminated before IP completion day; or

(b)was concluded after IP completion day in accordance with a procedure to which paragraph 3 applied.

Transitional modification of the Procurement Regulations

5.—(1) In relation to a procedure to which paragraph 3 or 4 applies, the Procurement Regulations are to be read, on and after IP completion day, and so far as the context permits or requires, as if—

(a)any reference (however expressed) to a member State or EEA state included the United Kingdom;

(b)any reference (however expressed) to—

(i)EU law;

(ii)any particular EU Treaty or any part of it;

(iii)any EU instrument, or other document of an EU entity or of the EU, or any part of any such instrument or document;

(iv)any part of EU law not falling within sub-paragraph (ii) or (iii);

(v)any tax, duty, levy or interests of the EU, or

(vi)any arrangements involving, or otherwise relating to, the EU of a kind not falling within sub-paragraph (i), (ii), (iii), (iv) or (v),

were a reference to any such thing (including any such thing as may have existed previously) so far as it is applicable to and in the United Kingdom by virtue of the relevant withdrawal provisions;

(c)any reference (however expressed) to the area of the EU or of the EEA included the United Kingdom;

(d)any reference (however expressed) to a citizen of the EU or a national of the EEA included a United Kingdom national (within the meaning given by Article 2(d) of the withdrawal agreement);

(e)any reference to an enforceable EU obligation were a reference to an obligation that is enforceable by virtue of section 7A or 7B of the European Union (Withdrawal) Act 2018; and

(f)such other modifications were made as are necessary for any purpose of the relevant withdrawal provisions and are capable of being ascertained from any such purpose or otherwise from those provisions.

(2) In sub-paragraph (1), “relevant withdrawal provisions” means—

(a)Title 8 of Part 3 of the withdrawal agreement (ongoing public procurement and similar procedures);

(b)Title 5 of Part 3 of the EEA EFTA separation agreement (ongoing public procurement and similar procedures).

PART 3PROVISIONS COMMENCED ON IP COMPLETION DAY

Procurement involving contracting authorities or utilities from other member States

6.—(1) This paragraph applies in relation to the omission, by these Regulations, of—

(a)regulation 39 of the Public Contracts Regulations 2015 (procurement involving contracting authorities from other member States);

(b)regulation 57 of the Utilities Contracts Regulations 2016 (procurement involving utilities from other member States).

(2) Those omissions do not imply—

(a)any prohibition of the activities authorised by the omitted regulations (which activities might, accordingly, be carried on to any extent that would have been lawful if the omitted regulations had never existed); or

(b)that any matters provided for in those regulations are necessarily to have a different effect unless so required by applicable law (including rules for resolving any conflicts between the laws of different jurisdictions).

Saving of implied power to terminate contracts

7.—(1) This paragraph applies where—

(a)a contract was awarded before IP completion day; and

(b)immediately before IP completion day, the contract contained a power—

(i)implied by regulation 73(3) of the Public Contracts Regulations 2015 to terminate the contract on the ground mentioned in regulation 73(1)(c) of those Regulations;

(ii)implied by regulation 44(3) of the Concession Contracts Regulations 2016 to terminate the contract on the ground mentioned in regulation 44(1)(c) of those Regulations; or

(iii)implied by regulation 89(3) of the Utilities Contracts Regulations 2016 to terminate the contract on the ground mentioned in regulation 89(1)(c) of those Regulations.

(2) On and after IP completion day, that power continues despite the omission, by these Regulations, of regulation 73(1)(c), 44(1)(c) or 89(1)(c), as the case may be.

Saving of regulation 60(2) of the Concession Contracts Regulations 2016

8. The amendment made by these Regulations to regulation 60(2) of the Concession Contracts Regulations 2016 (application of the first ground of ineffectiveness) does not apply where the contract referred to in regulation 60(2) was awarded before IP completion day.

Saving in relation to voluntary transparency notices

9.—(1) This paragraph applies in relation to the amendments made by these Regulations to—

(a)regulation 99(3) and (4) of the Public Contracts Regulations 2015;

(b)regulation 114(3) and (4) of the Utilities Contracts Regulations 2016;

(c)regulation 60(3) and (4) of the Concession Contracts Regulations 2016.

(2) Those amendments do not apply in relation to a voluntary transparency notice that was published in the Official Journal of the European Union if the notice was sent, before IP completion day, to be so published.

PART 4PROVISIONS COMMENCED 12 MONTHS AFTER IP COMPLETION DAY

Saving in relation to procurements commenced before regulations 7, 9 and 11 come into force

10. The amendments made by regulations 7, 9 and 11 do not affect any procurement commenced before the date on which those amendments come into force (“the second commencement date”).

11. For the purposes of this Part, a procurement has been commenced before the second commencement date if, before that date—

(a)a notice has been sent to the UK e-notification service in accordance with applicable Procurement Regulations in order to—

(i)invite offers or requests to be selected to tender for or to negotiate in respect of a proposed contract, framework agreement or dynamic purchasing system; or

(ii)publicise an intention to hold a design contest;

(b)the contracting authority or utility has had published any form of advertisement seeking offers or expressions of interest in a proposed contract, framework agreement or dynamic purchasing system; or

(c)the contracting authority or utility has contacted any economic operator in order to—

(i)seek expressions of interest or offers in respect of a proposed contract, framework agreement or dynamic purchasing system; or

(ii)respond to an unsolicited expression of interest or offer received from that economic operator in relation to a proposed contract, framework agreement or dynamic purchasing system.

12. For the purposes of this Part, a procurement covers the whole of the procedures which stem from that commencement.

13. Accordingly, for example, if a contract notice in relation to a proposed framework agreement under the Public Contracts Regulations 2015 has, before the second commencement date, been sent as described in paragraph 11(a), paragraph 10 applies to the award of any contracts based on that framework agreement regardless of whether the relevant specific procedure for the award of any such contract under regulation 33(7) to (11) of the Public Contracts Regulations 2015 had itself been commenced before the second commencement date.

14. Procedures taken for the purpose of modifying a contract or framework agreement are not to be regarded, for the purposes of paragraph 12, as stemming from the commencement of the procurement from which the award of that contract or framework agreement had itself stemmed.

15. A procedure commenced as described in paragraph 11(a)(i), (b) or (c) is not to be regarded, for the purposes of paragraph 11, as stemming from the commencement of any design contest that had previously been held in relation to the subject-matter of the procurement.