The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019 No. 697

Statutory Instruments

2019 No. 697

Exiting The European Union

Public Procurement

The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019

Made

26th March 2019

Coming into force in accordance with regulation 1

The Secretary of State makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 M1 , as read with paragraph 1A M2 of Schedule 2 to that Act, and section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018 M3 .

The Secretary of State is designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to public procurement M4 .

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972, and it appears to the Secretary of State that it is expedient for a reference to the Common Military List of the European Union to be construed as a reference to that List as amended from time to time.

In accordance with paragraph 1(1) of Schedule 7 to the European Union (Withdrawal) Act 2018, a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.

Marginal Citations

M1 1972 c. 68; section 2(2) was amended by the European Union (Amendment) Act 2008 (c. 7), Part 1 of the Schedule.

M2 Paragraph 1A was inserted by the Legislative and Regulatory Reform Act 2006 (c. 51), section 28, and was amended by the European Union (Amendment) Act 2008, Part 1 of the Schedule.

M3 2018 c 16.

M4 S.I. 2009/2743.

Citation and commencement U.K.

1.—(1) These Regulations may be cited as the Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2019.

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

(3) Regulations 3 and 4 come into force on exit day.

Commencement Information

I1 Reg. 1 in force at made date

Pre-exit amendments of the Defence and Security Public Contract Regulations 2011 U.K.

2.—(1) The Defence and Security Public Contracts Regulations 2011 M5 are amended as follows.

(2) In regulation 3 (interpretation), in paragraph (1)—

(a) omit the definition of “Commission Regulation (EC) No 1564/2005”;

(b) in the definition of “contract notice”—

(i) in paragraph (a)—

(aa) omit “subject to sub-paragraph (b),”;

(bb) after “specified” insert “ for that notice ”;

(ii) omit paragraph (b) and the preceding “or”;

(c) after the definition of “life cycle” insert—

““member State”, except in regulation 2(2), also includes Iceland and Norway;”;

(d) in the definition of “military equipment”, in paragraph (a), after “Union” insert “ adopted by the Council on 26th February 2018 M6 ”;

(e) in the definition of “prior information notice”—

(i) in paragraph (a)—

(aa) omit “subject to sub-paragraph (b),”;

(bb) after “specified” insert “ for that notice ”;

(ii) omit paragraph (b) and the preceding “or”.

(3) In regulation 14 (prior information notices)—

(a) in paragraph (3), after “form of a notice” insert “ of publication ”;

(b) in paragraph (4)—

(i) in the words before paragraph (a), after “notice” insert “ of publication ”;

(ii) in sub-paragraph (a)—

(aa) omit “subject to sub-paragraph (b),”;

(bb) after “specified” insert “ for that notice ”;

(iii) omit sub-paragraph (b) and the preceding “or”.

(4) In regulation 17 (the restricted procedure), in paragraph (20)(b), omit the words from “or, if” to “therein specified,”.

(5) In regulation 32 (contract award notice)—

(a) in paragraph (1)—

(i) in sub-paragraph (a)—

(aa) omit “subject to sub-paragraph (b),”;

(bb) after “specified” insert “ for that notice ”;

(ii) omit sub-paragraph (b) and the preceding “or”;

(b) in paragraph (2), in the words before sub-paragraph (a)—

(i) for “in the form of the” substitute “ for a ”;

(ii) omit the words from “or, if” to “notice”.

(6) In regulation 42 (thresholds and rules on advertising), in paragraph (2)—

(a) in sub-paragraph (a), omit “subject to sub-paragraph (b),”;

(b) omit sub-paragraph (b) and the preceding “or”.

(7) In regulation 48 (publication of notices), in paragraph (1)(a), for the words from “the necessary” to “and contain” substitute “ , in addition to the information required by these Regulations in respect of that notice, ”.

(8) In regulation 60 (grounds for ineffectiveness), in paragraph (4), omit sub-paragraph (b) and the preceding “and”.

Commencement Information

I2 Reg. 2 in force at 27.3.2019, see reg. 1(2)

Marginal Citations

M5 S.I. 2011/1848, amended by S.I. 2015/102, 2016/275, 696 and by S.S.I. 2015/446, 2016/49; there are other amending instruments but none is relevant.

M6 OJ No C 98, 15.3.2018, p 1.

Exit-related amendments of the Defence and Security Public Contracts Regulations 2011 U.K.

3.—(1) The Defence and Security Public Contracts Regulations 2011 (as amended by regulation 2) are further amended as follows.

(2) In regulation 3 (interpretation), in paragraph (1)—

(a) before the definition of “aircraft” insert—

““the 1958 List” means, subject to regulation 65A, the list of arms, munitions and war material adopted by the Council of the European Economic Community in its decision 255/58 of 15th April 1958;”;

(b) omit the definition of “the Commission”;

(c) in the definition of “contract notice”—

(i) in the words before paragraph (a), for “sent to the Official Journal” substitute “ submitted to the UK e-notification service ”;

(ii) in paragraph (a), at the beginning insert “ subject to paragraph 2 of Schedule A1, ”;

(d) in the definition of “contractor”, in paragraph (b), for “and established in a member State” substitute “ the United Kingdom and is established in the United Kingdom or Gibraltar ”;

(e) in the definition of “military equipment”, in paragraph (b), for the words from “list” to the end substitute “ 1958 List ”;

(f) for the definition of “national of a member State” substitute the following—

““national of the United Kingdom” means—

(a) in the case of a person who is not an individual, a person formed in accordance with the laws of—

(i) any part of the United Kingdom, or

(ii) Gibraltar,

and which has its registered office, central administration or principal place of business in the United Kingdom or in Gibraltar;

(b) in the case of an individual—

(i) a British Citizen, or

(ii) a person who is a British Overseas Territories Citizen by virtue of a connection with Gibraltar;”;

(g) in the definition of “prior information notice”—

(i) for “sent to the Official Journal” substitute “ submitted to the UK e-notification service ”;

(ii) in paragraph (a), at the beginning insert “ subject to paragraph 3 of Schedule A1, ”;

(h) in the definition of “services provider”, in paragraph (b), for “and established in a member State” substitute “ the United Kingdom and is established in the United Kingdom or Gibraltar ”;

(i) in the definition of “supplier”, in paragraph (b), for “and established in a member State” substitute “ the United Kingdom and is established in the United Kingdom or Gibraltar ”;

(j) after the definition of “the TFEU” insert—

“the UK e-notification service” has the meaning mentioned in regulation 48(9), and references (in whatever terms) to the submission of notices to that service are to be construed in accordance with the provisions applied (and adapted) by regulation 48(9);”.

(3) In regulation 6 (application)—

F1 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) after paragraph (3) insert—

“(3A) These Regulations—

(a) do not oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b) do not preclude the United Kingdom from taking such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production or trade in arms, munitions and war material, provided that such measures do not adversely affect the conditions of competition regarding products which are not intended for specifically military purposes.

(3B) The arms, munitions and war material to which paragraph (3A)(b) applies are those included in the 1958 List.

(3C) Subject to the effect of any regulations made under regulation 65A, any measures which, if they had been taken immediately before [F2 IP completion day], would have been covered by Article 346 of the TFEU shall be regarded as measures covered by paragraph (3A).”;

F3 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In regulation 7 (general exclusions), in paragraph (1)—

(a) in sub-paragraph (c), for “at least two member states” substitute “ the United Kingdom and a member State ”;

(b) in sub-paragraph (d)—

(i) for “which is not a member State” substitute “ other than the United Kingdom or Gibraltar ”; and

(ii) for “territory of the EU” substitute “ United Kingdom and Gibraltar ”;

(c) in sub-paragraph (e)(i), for “a State which is not a member State” substitute “ another State ”;

(d) in sub-paragraph (f), for “a member State” substitute “ the United Kingdom ”.

(5) In regulation 9 (thresholds)—

(a) in paragraph (2)—

(i) in the words before sub-paragraph (a), after “sum” insert “ for the time being ”;

(ii) in sub-paragraph (a), for the words from “Article” to “Directive” substitute “ regulation 16(1)(a) of the Utilities Contracts Regulations 2016 M7 ”;

(iii) in sub-paragraph (b), for the words from “Article” to “Directive” substitute “ regulation 16(1)(b) of those Regulations ”;

(b) omit paragraphs (3) and (4);

(c) in paragraph (10)—

(i) in sub-paragraph (a), for “80,000 euro” substitute “[F4 £70,778]”;

(ii) in sub-paragraph (b), for “1,000,000 euro” substitute “[F5 £884,720]”;

(d) in paragraph (18), for “sent to the Official Journal” substitute “ submitted to the UK e-notification service ”.

(6) In regulation 12 (technical specifications in the contract documents)—

(a) in paragraph (1), in the definition of “recognised bodies”, after “inspection bodies” insert “ established in the United Kingdom or Gibraltar ”;

F6 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) omit paragraph (14).

(7) In regulation 14 (prior information notices)—

(a) in paragraph (1), for the words from “send” to “Commission” substitute “ submit a prior information notice to the UK e-notification service ”;

(b) in paragraph (3), for the words from “send” to the end substitute “ submit a notice of publication on a buyer profile to the UK e-notification service ”;

(c) in paragraph (4)—

(i) in the words before sub-paragraph (a), for “sent to the Commission” substitute “ submitted to the UK e-notification service ”;

(ii) in sub-paragraph (a), at the beginning insert “ subject to paragraph 4 of Schedule A1, ”.

(8) In regulation 16 (use of the negotiated procedure without prior publication of a contract notice)—

(a) in paragraph (1)(e), for “a member State” substitute “ the United Kingdom ”;

(b) omit paragraph (2).

(9) In regulation 17 (the restricted procedure)—

(a) in paragraph (2)—

(i) for “sending to the Official Journal” substitute “ submitting to the UK e-notification service ”;

(ii) for the words “a notice, in the form of the contract notice,” substitute “ a contract notice ”;

(b) in paragraph (3)—

(i) omit “subject to paragraph (5),”;

(ii) for “37” substitute “ 30 ”;

(iii) for “of the despatch of the notice” substitute “ on which the notice was submitted to the UK e-notification service ”;

(c) omit paragraph (5);

(d) in paragraph (6)—

(i) in the words before sub-paragraph (a), for “37” substitute “ 30 ”;

(ii) for the words from “that time limit” in the words before sub-paragraph (a) to the end of the paragraph substitute “ that time limit a time limit of not less than 10 days from the date on which the contract notice was submitted to the UK e-notification service ”;

(e) in paragraph (20)—

(i) in sub-paragraph (b), after “Directive” insert “ as modified by paragraph 2 of Schedule A1 ”;

(ii) in sub-paragraph (c), for “sent to the Official Journal” substitute “ submitted to the UK e-notification service ”.

(10) In regulation 18 (the negotiated procedure)—

(a) in paragraph (3)—

(i) for “sending to the Official Journal” substitute “ submitting to the UK e-notification service ”;

(ii) for the words “a notice, in the form of the contract notice,” substitute “ a contract notice ”;

(b) in paragraph (5)—

(i) for “paragraphs (7) and (8)” substitute “ paragraph (8) ”;

(ii) for “37” substitute “ 30 ”;

(iii) for “of despatch of the notice” substitute “ on which the notice was submitted to the UK e-notification service ”;

(c) omit paragraph (7);

(d) in paragraph (8)—

(i) in the words before sub-paragraph (a), for “37” substitute “ 30 ”;

(ii) omit sub-paragraph (a);

(iii) in sub-paragraph (b)—

(aa) omit the words from “where” to “paragraph (7)”;

(bb) for “of despatch of the contract notice” substitute “ on which the contract notice was submitted to the UK e-notification service ”.

(11) In regulation 19 (the competitive dialogue procedure)—

(a) in paragraph (4)—

(i) for “sending to the Official Journal” substitute “ submitting to the UK e-notification service ”;

(ii) omit “a notice, in the form of”;

(b) in paragraph (7)—

(i) omit “Subject to paragraph (9),”;

(ii) for “37” substitute “ 30 ”;

(iii) for “of the despatch of the notice” substitute “ on which the notice was submitted to the UK e-notification service ”;

(c) omit paragraph (9).

(12) In regulation 23 (criteria for the rejection of economic operators)—

(a) in paragraph (1)—

(i) omit sub-paragraph (g);

(ii) in sub-paragraph (m)—

(aa) for “39(1)” substitute “ 39(1)(a), (b), (d), or (e) ”;

(bb) for “the national law of any member State”, substitute “ the law of any part of the United Kingdom or of Gibraltar ”;

(b) in paragraph (4)—

(i) in sub-paragraphs (g) and (h), for “the member State in which the economic operator is established” substitute “ Gibraltar ”;

(ii) in sub-paragraph (i), for “25, 26 or 27” substitute “ 25 or 26 ”;

(iii) in sub-paragraph (j)—

(aa) for “member State in which the economic operator is established” substitute “ United Kingdom or Gibraltar ”;

(bb) for “in that member State” substitute “ in the United Kingdom or Gibraltar ”;

(cc) for “of that member State” substitute “ of the relevant part of the United Kingdom or, as the case may be, of Gibraltar ”;

(iv) for sub-paragraph (k) substitute the following—

“(k) is not—

(i) certified, by the Registrar of Companies in the United Kingdom or Gibraltar, as incorporated; or

(ii) certified as having declared on oath that it is carrying on business in the trade in question in the United Kingdom, or in Gibraltar, at a specific place of business and under a specific trading name.”;

(c) in paragraph (5)—

(i) in sub-paragraph (a)(ii), for the words from “in” to “record” substitute “ where such a judicial record is not maintained in respect of the relevant place ”;

(ii) in sub-paragraph (c)—

(aa) omit “in a member State”;

(bb) after “issued” insert “ in respect of the relevant place ”;

(d) for paragraph (6) substitute—

“(6) In this regulation—

“relevant”, in relation to a judicial, administrative or competent authority, notary public or Commissioner for oaths means an authority designated in respect of the relevant place, or a notary public or Commissioner for oaths in the relevant place;

“relevant place” means whichever of the following the context requires—

(a)

the United Kingdom;

(b)

the relevant part of the United Kingdom;

(c)

Gibraltar.”;

(e) omit paragraphs (7) to (14).

(13) In regulation 24 (information as to economic and financial standing)—

(a) in paragraph (1), in the words before sub-paragraph (a), omit “regulation 27 and”;

(b) in paragraph (6)(b), for “member State in which the economic operator is established” substitute “ relevant part of the United Kingdom or of Gibraltar ”.

(14) In regulation 25 (information as to technical or professional ability)—

(a) in paragraph (1), at the beginning, omit “Subject to regulation 27,”;

(b) in paragraph (2)—

(i) in sub-paragraph (f), for “of the member State in which the economic operator is established” substitute “ in the United Kingdom or Gibraltar ”;

(ii) in sub-paragraph (j), for “territory of the EU” substitute “ United Kingdom and Gibraltar ”;

(iii) in sub-paragraph (n)(ii), for “any member State” substitute “ the United Kingdom or Gibraltar ”;

(c) in paragraph (4)(a)—

(i) in paragraph (i), omit sub-paragraph (aa);

(ii) for paragraph (ii) substitute the following—

“(ii) from either—

(aa) an independent body established in the United Kingdom conforming to retained EU law or the relevant European or international standards concerning certification; or

(bb) an independent body established in Gibraltar conforming to the law of Gibraltar or the relevant European or international standards concerning certification; or”.

(15) In regulation 26 (supplementary information), omit “Subject to regulation 27,”.

(16) Omit regulation 27 (official lists of approved economic operators).

(17) In regulation 29 (corporations), omit paragraph (1).

(18) In regulation 31 (criteria for the award of a contract)—

(a) in paragraph (1), in the words before sub-paragraph (a), for “paragraphs (6) and (9)” substitute “ paragraph (6) ”;

(b) in paragraph (7)—

(i) after sub-paragraph (c) insert “ or ”;

(ii) omit sub-paragraph (e) and the preceding “or”;

(c) omit paragraphs (8) and (9).

(19) In regulation 32 (contract award notice)—

(a) in paragraph (1)—

(i) in the words before sub-paragraph (a), for the words from “send” to “award notice” substitute “ submit a contract award notice to the UK e-notification service ”;

(ii) in sub-paragraph (a), at the beginning insert “ subject to paragraph 5 of Schedule A1, ”;

(b) in paragraph (2), in the words before sub-paragraph (a), after “Directive” insert “ as modified by paragraph 5 of Schedule A1 ”;

(c) in paragraph (3), for “send” substitute “ submit ”.

(20) In regulation 33 (information about contract award procedures), omit paragraph (14).

F7 (21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(22) In regulation 39 (security of supply)—

(a) in paragraph (2)(a), omit “from the member State concerned”;

(b) omit paragraph (3).

(23) In regulation 42 (thresholds and rules on advertising)—

(a) in paragraph (2)(a), after “Directive,” insert “ but as if in paragraph 9 “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations ”;

(b) in paragraph (3)—

(i) in the words before sub-paragraph (a), for “published in accordance with regulation 48(1)(b) and (3)” substitute “ submitted to the UK e-notification service ”;

(ii) in sub-paragraphs (a) and (b), for “despatched in accordance with regulation 48(1)(b)” substitute “ submitted to the UK e-notification service ”;

(c) omit paragraph (9).

(24) In regulation 43 (award of a sub-contract without publication of a sub-contract notice), in paragraph (1)(e), for “a member State” substitute “ the United Kingdom ”.

(25) In regulation 46 (statistical and other reports), omit paragraph (2).

(26) In regulation 48 (publication of notices)—

(a) in paragraph (1)—

(i) in the words before sub-paragraph (a), for “sent to the Official Journal” substitute “ submitted to the UK e-notification service ”;

(ii) omit sub-paragraph (b) and the preceding “and”;

(b) omit paragraphs (2) and (3);

(c) in paragraph (4)(a) and (b), for “despatched in accordance with paragraph (1)(b) or (2)” substitute “ submitted to the UK e-notification service ”;

(d) in paragraph (5), for “of despatch of that notice to the Official Journal” substitute “ on which that notice was submitted to the UK e-notification service ”;

(e) in paragraph (6)—

(i) for “despatched to the Commission” substitute “ submitted to the UK e-notification service ”;

(ii) for “that despatch” substitute “ that submission ”;

(f) in paragraph (7), for “despatch to the Official Journal” substitute “ submission to the UK e-notification service ”;

(g) in paragraph (8)—

(i) for “send” substitute “ submit ”;

(ii) for “Official Journal” substitute “ UK e-notification service ”;

(h) after paragraph (8) insert—

“(9) In these Regulations, “the UK e-notification service” has the meaning given by regulation 51(5) of the Public Contracts Regulations 2015 M8 , and regulation 51(6) and (7) of those Regulations apply for the purposes of these Regulations as if the confirmations referred to in regulation 51(6)(b) were confirmations to contracting authorities (within the meaning of these Regulations) that notices submitted by them for publication on the UK e-notification service have been so published and confirming the date of publication in respect of each such notice.”.

(27) In regulation 49 (means of communication), in paragraph (7), for “25, 26 and 27” substitute “ 25 and 26 ”.

(28) In regulation 51 (duty owed to economic operators), in paragraph (1)—

(a) in sub-paragraph (a), omit “31(9),”;

F8 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(29) In regulation 54 (special time limits for seeking a declaration of ineffectiveness), in paragraph (3), for “in the Official Journal”, substitute “ on the UK e-notification service ”.

(30) In regulation 60 (grounds for ineffectiveness), in paragraphs (3)(b) and (c), for “in the Official Journal” substitute “ on the UK e-notification service ”.

(31) After regulation 65 insert—

“PART 9A U.K. REGULATION-MAKING POWERS

Modification of the 1958 List for the purposes of these Regulations

65A.   The Secretary of State may make regulations providing that the 1958 List is to be treated for the purposes of these Regulations as if it were changed in respects specified in the regulations.

Requirements relating to equipment for electronic receipt of documents

65B.   The Secretary of State may make regulations amending any or all of the technical details and characteristics of the equipment for electronic receipt set out in sub-paragraphs (a), (e) and (f) of regulation 49(6).

General provisions about regulations under this Part

65C.— (1) Regulations under this Part are to be made by statutory instrument.

(2) A statutory instrument containing regulations under regulation 65A (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(3) Any other statutory instrument containing regulations under this Part is subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Regulations under this Part may make supplementary, incidental, transitional, transitory or saving provision.”.

(32) Before Schedule 1 insert the Schedule set out in the Schedule to these Regulations.

(33) Omit Schedule 3.

Textual Amendments

F1 Reg. 3(3)(a) omitted (1.3.2024) by virtue of The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 10(a)

F2 Words in reg. 3(3) substituted (31.12.2020 immediately before IP completion day) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1450), regs. 1(3), 3(2)(a)

F3 Reg. 3(3)(c) omitted (1.3.2024) by virtue of The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 10(a)

F4 Sum in reg. 3(5)(c)(i) substituted (31.12.2020 immediately before IP completion day) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1450), regs. 1(3), 3(2)(b)(i)

F5 Sum in reg. 3(5)(c)(ii) substituted (31.12.2020 immediately before IP completion day) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1450), regs. 1(3), 3(2)(b)(ii)

F6 Reg. 3(6)(b) omitted (1.3.2024) by virtue of The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 10(b)

F7 Reg. 3(21) omitted (1.3.2024) by virtue of The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 10(c)

F8 Reg. 3(28)(b) omitted (1.3.2024) by virtue of The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Provision) Regulations 2024 (S.I. 2024/80), reg. 1(2), Sch. para. 10(d)

Commencement Information

I3 Reg. 3 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Marginal Citations

M7 S.I. 2016/274, amended by S.I. 2019/560 (which, with effect from exit day, amends regulation 16(1)(a) and (b) so that they mention the sums of £363,424 and £4,551,413 respectively, and inserts a new regulation 16A under which those sums must be reviewed every two years and, if certain criteria are met, be changed by amending regulations made under that new regulation 16A); there are other amending instruments but none is relevant.

M8 S.I. 2015/102, amended by S.I. 2019/560 (which inserts paragraphs (5) to (7) into regulation 51 with effect from exit day); there are other amending instruments but none is relevant.

Transitional and saving provision in relation to the amendments made by regulation 3 U.K.

[F9 4.— (1) In this regulation, “relevant amendments to the 2011 Regulations” means—

(a) amendments made by regulation 3; and

(b) any other amendments, including future amendments, to the 2011 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.

(2) Relevant amendments to the 2011 Regulations do not affect any procedure launched by a contracting authority under the 2011 Regulations if the procedure—

(a) was launched before IP completion day; and

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

(3) For the purposes of paragraph (2), a procedure is launched—

(a) when a call for competition or any other invitation to submit applications has been made in accordance with the 2011 Regulations; or

(b) where the 2011 Regulations do not require such a call or invitation, when the contracting authority contacted economic operators in relation to the specific procedure.

(4) For the purposes of paragraph (2), a procedure is finalised—

(a) upon publication of a contract award notice in accordance with the 2011 Regulations;

(b) where the 2011 Regulations do not require the publication of such a notice, upon conclusion of the relevant contract; or

(c) where the contracting authority 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.

(5) If the condition in paragraph (6) is met, the relevant amendments to the 2011 Regulations do not affect any procedure relating to the performance of a framework agreement, including the award of contracts based on such an agreement, under regulations 20(3) to (5), (7) to (9), (11) and (12) of the 2011 Regulations.

(6) 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 paragraphs (2) to (4) applied.

(7) The amendments made by regulation 3(30) do not apply in relation to a voluntary transparency notice that was published in the Official Journal if the notice was sent before IP completion day to be so published.

(8) In relation to a procedure to which paragraphs (2) to (6) apply, the 2011 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 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 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 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 to the territory of the EU included the United Kingdom;

(d) 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

(e) 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 purposes or otherwise from those provisions.

(9) In paragraph (8), “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).

(10) In this regulation—

“the 2011 Regulations” means the Defence and Security Public Contracts Regulations 2011;

“amendment” includes modification, revocation and substitution.

(11) In this regulation, “contract”, “contracting authority”, “contract award notice”, “economic operator”, “framework agreement”, “Official Journal”, “prior information notice”, “tenderer” and “voluntary transparency notice” have the same meaning as in the 2011 Regulations.

(12) None of the savings in this regulation implies any limitation of the scope of any of the other savings in this regulation.]

Textual Amendments

F9 Reg. 4 substituted (31.12.2020 immediately before IP completion day) by The Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1450), regs. 1(3), 3(3)

Commencement Information

I4 Reg. 4 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Gavin Williamson

Secretary of State

Ministry of Defence

Regulation 3(32)

SCHEDULE U.K.

Commencement Information

I5 Sch. in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Regulations 3(1), 14(4), 17(20), and 32(1) and (2)

“SCHEDULE A1 U.K. MODIFICATIONS OF ANNEX 4 TO THE DEFENCE AND SECURITY PROCUREMENT DIRECTIVE FOR THE PURPOSES OF THESE REGULATIONS

1.   In this Schedule, “Annex 4” means Annex 4 to the Defence and Security Procurement Directive.

2.   The references to Annex 4 in the definition of “contract notice” in regulation 3(1) and in regulation 17(20) have effect as if, in the paragraphs of that Annex under the heading “contract notices”—

(a) paragraph 9 (subcontracting) were omitted;

(b) in paragraph 21, “Article 47” were a reference to regulation 31 of these Regulations;

(c) in paragraph 22, “in accordance with the technical specifications of publication indicated in Annex VI” read “on the UK e-notification service (within the meaning of the Defence and Security Public Contracts Regulations 2011)”;

(d) in paragraph 23, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.

3.   The reference to Annex 4 in the definition of “prior information notice” in regulation 3(1) has effect as if, in paragraph 7 under the heading “prior information notice” in that Annex, “dispatch” (in both places) referred to the submission of the notice to the UK e-notification service for the purposes of these Regulations.

4.   The reference to Annex 4 in regulation 14(4)(a) has effect as if paragraph 1 (country of the contracting authority or entity) under the heading “notice of publication of a prior information notice on a buyer profile” in that Annex were omitted.

5.   The references to Annex 4 in regulation 32(1) and (2) have effect as if, in the paragraphs of that Annex under the heading “contract award notice”—

(a) in paragraph 2, “Article 47” were a reference to regulation 31 of these Regulations;

(b) in paragraph 12, “in accordance with the technical specifications for publication in Annex VI” read “on the UK e-notification service (within the meaning of the Defence and Security Public Contracts Regulations 2011)”;

(c) in paragraph 13, “date of dispatch” were a reference to the date on which the notice is submitted to the UK e-notification service for the purposes of these Regulations.”

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Defence and Security Public Contracts Regulations 2011 (S.I. 2011/1848) (“the 2011 Regulations”).

Regulation 2 makes amendments that take effect before the withdrawal of the UK from the European Union. Regulation 2(2)(c) amends the definition of ‘member State’ to include Iceland and Norway. Regulation 2(2)(d) amends the definition of ‘military equipment’ to update a reference to the Common Military List of the European Union so that it refers to the current List (adopted on 26th February 2018) as amended from time to time. The other amendments made by regulation 2 remove references to Commission Regulation (EC) No 1564/2005 (which prescribed the form in which various notices were to be sent for publication in the Official Journal of the European Union) and make minor corrections or adjustments to the description of such notices and the information to be contained in them. That Commission Regulation was repealed in 2011 and its current equivalent is Commission Implementing Regulation (EU) No 2015/1986 (OJ No L 296, 12.11.2015, p 1), which is directly applicable.

Regulation 3 is 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 the 2011 Regulations (as retained EU law) to operate effectively and other deficiencies (in particular under paragraphs (a), (d), (e), (f) and (g) of section 8(2)) arising from the withdrawal of the UK from the European Union. Some of the amendments made by regulation 3 supersede amendments made by regulation 2.

Regulation 4 makes transitional and saving provision in relation to the amendments made by regulation 3.

An impact assessment has not been produced for this instrument as no, or no significant, impact on the private or voluntary sector is foreseen.