Statutory Instruments
Exiting The European Union
Public Procurement
Made
20th March 2019
Coming into force in accordance with regulation 1
The Minister for the Cabinet Office makes these Regulations in exercise of the powers conferred by section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018(1).
In accordance with paragraph 1(3) of Schedule 7 to that Act, a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.
1. These Regulations may be cited as the Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 and come into force immediately before exit day(2).
2.—(1) The Public Procurement (Amendment etc.) (EU Exit) Regulations 2019(3) are amended as follows.
(2) In regulation 1 (citation, commencement and transitional and saving provision)—
(a)in paragraph (2), for “and 10” substitute “10 and 21”;
(b)in paragraph (3)—
(i)for “8 and 10” substitute “8, 10 and 21”;
(ii)for “eight” substitute “18”.
(3) In regulation 5 (amendments to the Public Contracts Regulations 2015(4) that are commenced on exit day)—
(a)in paragraph (20) (amendment of regulation 25 which concerns conditions relating to the GPA and other international agreements)—
(i)omit sub-paragraph (a);
(ii)in sub-paragraph (b)—
(aa)for paragraph (i) substitute—
“(i)for “is bound” substitute “was, immediately before exit day, bound”;”;
(bb)omit paragraph (ii);
(b)in paragraph (45) (amendment of regulation 68 which concerns life-cycle costing), in sub-paragraph (a), for paragraph (ii) substitute—
“(ii)for “is bound” substitute “was, immediately before exit day, bound”;”;
(c)in paragraph (58) (amendment of regulation 90 which concerns the duty owed to economic operators from certain states)—
(i)in sub-paragraph (a)(i)(bb), for “Condition 1 or Condition 2” substitute “Condition 1, Condition 2 or Condition 3”;
(ii)for sub-paragraph (c) substitute—
“(c)in paragraph (3)—
(i)for the words from the beginning to “applies if” substitute “Condition 3 is that”;
(ii)in sub-paragraph (a)—
(aa)for “there is” substitute “immediately before exit day there was”;
(bb)for “is bound” substitute “was bound”;
(ca)after paragraph (3) insert—
“(3A) Paragraph (3)(b) is to be applied as if the United Kingdom were a member State.”;”.
(4) In the heading to regulation 6 (amendments commenced eight months after exit day), for “eight” substitute “18”.
(5) In regulation 7 (amendments to the Concession Contracts Regulations 2016(5) that are commenced on exit day), in paragraph (28) (amendment of regulation 51 which concerns the duty owed to economic operators from certain states)—
(a)in sub-paragraph (a)(i)(bb), for “Condition 1 or Condition 2” substitute “Condition 1, Condition 2 or Condition 3”;
(b)for sub-paragraph (c) substitute—
“(c)in paragraph (3)—
(i)for the words from the beginning to “applies if” substitute “Condition 3 is that”;
(ii)in sub-paragraph (a)—
(aa)for “there is” substitute “immediately before exit day there was”;
(bb)for “is bound” substitute “was bound”;
(ca)after paragraph (3) insert—
“(3A) Paragraph (3)(b) is to be applied as if the United Kingdom were a member State.”;”.
(6) In the heading to regulation 8 (amendment commenced eight months after exit day), for “eight” substitute “18”.
(7) In regulation 9 (amendments to the Utilities Contracts Regulations 2016(6) that are commenced on exit day)—
(a)in paragraph (28) (amendment of regulation 43 which concerns conditions relating to the GPA and other international agreements)—
(i)omit sub-paragraph (a);
(ii)in sub-paragraph (b)—
(aa)for paragraph (i) substitute—
“(i)for “is bound” substitute “was, immediately before exit day, bound”;”;
(bb)omit paragraph (ii);
(b)in paragraph (47) (amendment of regulation 83 which concerns life-cycle costing), in sub-paragraph (a), for paragraph (ii) substitute—
“(ii)for “is bound” substitute “was, immediately before exit day, bound”;”;
(c)in paragraph (60) (amendment of regulation 105 which concerns the duty owed to economic operators from certain states)—
(i)in sub-paragraph (a)(i)(bb), for “Condition 1 or Condition 2” substitute “Condition 1, Condition 2 or Condition 3”;
(ii)for sub-paragraph (c) substitute—
“(c)in paragraph (3)—
(i)for the words from the beginning to “applies if” substitute “Condition 3 is that”;
(ii)in sub-paragraph (a)—
(aa)for “there is” substitute “immediately before exit day there was”;
(bb)for “is bound” substitute “was bound”;
(ca)after paragraph (3) insert—
“(3A) Paragraph (3)(b) is to be applied as if the United Kingdom were a member State.”;”.
(8) In the heading to regulation 10 (amendments commenced eight months after exit day), for “eight” substitute “18”.
(9) In regulation 21 (cessation of rights etc under certain international agreements), in paragraph (1), in the words after sub-paragraph (b), for “on exit day” substitute “when this regulation comes into force”.
(10) In the Schedule (transitional and saving provision)—
(a)in paragraph 3(2)—
(i)in paragraph (a), omit sub-paragraph (ii);
(ii)in paragraph (c), omit sub-paragraph (i);
(b)omit paragraph 9.
Oliver Dowden
Minister for Implementation
Cabinet Office
20th March 2019
(This note is not part of the Regulations)
These Regulations are made in exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018 (c. 16) in order to address failures of retained EU law to operate effectively and other deficiencies (in particular under paragraphs (d) and (e) of section 8(2)) arising from the withdrawal of the UK from the European Union.
These Regulations amend the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/560) (“the first SI”) before the first SI comes into force.
Among other things, the first SI would have amended the Public Contracts Regulations 2015 (S.I. 2015/102), the Concession Contracts Regulations 2016 (S.I. 2016/273) and the Utilities Contracts Regulations 2016 (S.I. 2016/274) (collectively “the principal public procurement Regulations”) to remove from them, on exit day, certain provisions which gave effect to, or referred to, international agreements by which the EU is bound. Before exit day, those provisions required, in particular, that economic operators from third country signatories to such agreements be treated no less favourably than economic operators from the EU when they participate in public procurements within the scope of any of the three principal public procurement Regulations, and made certain remedies available to them. These Regulations amend the first SI so that, instead of removing those provisions on exit day, the first SI removes them 18 months after exit day and modifies them so that, during the 18 months from exit day, they continue to have the effect that they had before the UK’s withdrawal from the EU.
Regulation 2(2)(b)(ii) of these Regulations also amends the first SI so that provisions relating to the Government Procurement Agreement between certain parties to the World Trade Organisation which the first SI would have removed from the principal public procurement Regulations eight months after exit day are instead removed 18 months after exit day.
Accordingly, regulation 2 affects the amendments which the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/560) will make to various statutory instruments on exit day.
S.I. 2015/102, amended by S.I. 2016/275; there are other amending instruments but none is relevant.
S.I. 2016//274, to which there are amendments not relevant to these Regulations.