The Public Procurement (Agreement on Government Procurement) (Amendment) Regulations 2021

Statutory Instruments

2021 No. 573

Public Procurement

The Public Procurement (Agreement on Government Procurement) (Amendment) Regulations 2021

Made

at 2.00 p.m. on 12th May 2021

Laid before Parliament

at 4.00 p.m. on 12th May 2021

Coming into force

11th June 2021

The Minister for the Cabinet Office makes these Regulations in exercise of the powers conferred by sections 1(1)(a), 4(1)(c) and 5(1) of the Trade Act 2021(1).

PART 1 GENERAL

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Public Procurement (Agreement on Government Procurement) (Amendment) Regulations 2021 and come into force on 11th June 2021.

(2) The amendments made by these Regulations have the same extent as the provisions to which they relate.

PART 2 AMENDMENT OF UNITED KINGDOM SECONDARY LEGISLATION

Amendments to the Public Contracts Regulations 2015

2.—(1) The Public Contracts Regulations 2015(2) are amended as follows.

(2) In regulation 2 (definitions), in paragraph (1)—

(a) in the definition of “GPA”, for “between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended before IP completion day” substitute “signed at Marrakesh on 15th April 1994, as amended on or before the United Kingdom’s accession”;

(b) after the definition of “GPA” insert—

““GPA party” means any country, state or separate customs territory that is—

(a)

listed in Schedule 1A; or

(b)

a member State of the EU;”.

(3) In regulation 25 (conditions relating to the GPA and other international agreements)—

(a) in the heading, for “the GPA and other international agreements” substitute “international agreements by which the EU is bound, other than the GPA”;

(b) in paragraph (1), for “Annexes 1, 2 and 4 to 7 to the EU’s Appendix 1 to the GPA and by the other international agreements” substitute “the international agreements, other than the GPA,”;

(c) for paragraph (2) substitute—

“(2) Paragraph (1) is to be applied as if the United Kingdom were a member State.”.

(4) After regulation 25 insert—

“Conditions relating to the GPA

25A.   Where a contracting authority is covered by Annexes 1 or 2 to the United Kingdom’s Appendix 1 to the GPA in respect of a procurement that is covered by Annexes 4 to 7 to that Appendix, the contracting authority shall accord to the works, supplies, services and economic operators of any GPA party treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators of the United Kingdom.”.

(5) In regulation 90 (duty owed to economic operators from certain other states)—

(a) in the heading, for “certain other states” substitute “countries with whom the EU has an international agreement, other than the GPA”;

(b) in paragraph (1)(a), omit “Condition 1, Condition 2 or”;

(c) omit paragraphs (2), (2A) and (4).

(6) After regulation 90 insert—

“Duty owed to economic operators from GPA parties

90A.— (1) The duty owed in accordance with regulation 89 is a duty owed also to an economic operator from a GPA party, but only where the agreement applies to the procurement concerned.

(2) For the purposes of paragraph (1), the GPA applies to a procurement if—

(a) the procurement may result in the award of a contract of any description; and

(b) at the relevant time—

(i) a GPA party has agreed with the United Kingdom that the GPA shall apply to a contract of that description; and

(ii) the economic operator is from that GPA party.

(3) In this regulation, “relevant time” means the date on which the contracting authority submitted a call for competition in respect of the contract to the UK e-notification service or would have done so if it has been required by Part 2 to do so.”

(7) After Schedule 1 (central government authorities) insert—

Regulation 2(1)

“SCHEDULE 1A PARTIES TO THE GPA

• Armenia

• Australia

• Canada

• European Union

• Hong Kong, China

• Iceland

• Israel

• Japan

• Korea, Republic of

• Liechtenstein

• Moldova, Republic of

• Montenegro

• Netherlands with respect to Aruba

• New Zealand

• Norway

• the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

• Singapore

• Switzerland

• Ukraine

• United States”.

Amendments to the Concession Contracts Regulations 2016

3.—(1) The Concession Contracts Regulations 2016(3) are amended as follows.

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

(a) in the definition of “GPA”, for “between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended before IP completion day” substitute “signed at Marrakesh on 15th April 1994, as amended on or before the United Kingdom’s accession”;

(b) after the definition of “GPA” insert—

““GPA party” means any country, state or separate customs territory that is—

(a)

listed in Schedule 1A; or

(b)

a member State of the EU;”.

(3) In regulation 51 (duty owed to economic operators from certain other states)—

(a) in the heading, for “certain other states” substitute “countries with whom the EU has an international agreement, other than the GPA”;

(b) in paragraph (1)(a), omit “Condition 1, Condition 2 or”;

(c) omit paragraphs (2), (2A) and (4).

(4) After regulation 51 insert—

“Duty owed to economic operators from GPA parties

51A.— (1) The duty owed in accordance with regulation 50 is a duty owed also to an economic operator from a GPA party, but only where the agreement applies to the procurement concerned.

(2) For the purposes of paragraph (1), the GPA applies to a procurement if—

(a) the procurement may result in the award of a contract of any description; and

(b) at the relevant time—

(i) a GPA party has agreed with the United Kingdom that the GPA shall apply to a contract of that description; and

(ii) the economic operator is from that GPA party.

(3) In this regulation, “relevant time” means the date on which the contracting authority submitted a call for competition in respect of the contract to the UK e-notification service or would have done so if it has been required by these Regulations to do so.”.

(5) After Schedule 1 (activities constituting works) insert—

Regulation 2(1)

“SCHEDULE 1A PARTIES TO THE GPA

• Armenia

• Australia

• Canada

• European Union

• Hong Kong, China

• Iceland

• Israel

• Japan

• Korea, Republic of

• Liechtenstein

• Moldova, Republic of

• Montenegro

• Netherlands with respect to Aruba

• New Zealand

• Norway

• the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

• Singapore

• Switzerland

• Ukraine

• United States”.

Amendments to the Utilities Contracts Regulations 2016

4.—(1) The Utilities Contracts Regulations 2016(4) are amended as follows.

(2) In regulation 2 (definitions), in paragraph (1)—

(a) in the definition of “GPA”, for “between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended before IP completion day” substitute “signed at Marrakesh on 15th April 1994, as amended on or before the United Kingdom’s accession”;

(b) after the definition of “GPA” insert—

““GPA party” means any country, state or separate customs territory that is—

(a)

listed in Schedule A1; or

(b)

a member State of the EU;”.

(3) In regulation 43 (conditions relating to the GPA and other international agreements)—

(a) in the heading, for “the GPA and other international agreements” substitute “international agreements by which the EU is bound, other than the GPA”;

(b) in paragraph (1), for “Annexes 3 to 7 to the EU’s Appendix 1 to the GPA and by the other international agreements” substitute “the international agreements, other than the GPA,”;

(c) for paragraph (2) substitute—

“(2) Paragraph (1) is to be applied as if the United Kingdom were a member State.”.

(4) After regulation 43 insert—

“Conditions relating to the GPA

43A.   Where a utility within the meaning of regulation 5(1)(a) is covered by Annex 3 to the United Kingdom’s Appendix 1 to the GPA in respect of a procurement that is covered by Annexes 4 to 7 to that Appendix, the utility shall accord to the works, supplies, services and economic operators of any GPA party treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators of the United Kingdom.”.

(5) In regulation 105 (duty owed to economic operators from certain other states)—

(a) in the heading, for “certain other states” substitute “countries with whom the EU has an international agreement, other than the GPA”;

(b) in paragraph (1)(a), omit “Condition 1, Condition 2 or”;

(c) omit paragraphs (2), (2A) and (4).

(6) After regulation 105 insert—

“Duty owed to economic operators from GPA parties

105A.— (1) The duty owed in accordance with regulation 104 is a duty owed also to an economic operator from a GPA party, but only where the agreement applies to the procurement concerned.

(2) For the purposes of paragraph (1), the GPA applies to a procurement if—

(a) the procurement may result in the award of a contract of any description; and

(b) at the relevant time—

(i) a GPA party has agreed with the United Kingdom that the GPA shall apply to a contract of that description; and

(ii) the economic operator is from that GPA party.

(3) In this regulation, “relevant time” means—

(a) if the utility selects economic operators to tender for or to negotiate the contract in accordance with a qualification system established in accordance with regulation 77, the date on which the selection commences;

(b) if the utility satisfies the requirement that there be a call for competition by indicating the intention to award the contract in a periodic indicative notice in accordance with regulations 67 or 91(1)(b), the date on which the notice is submitted to the UK e-notification service; or

(c) in any other case, the date on which the utility submitted a contract notice (or design contest notice) to the UK e-notification service or would have done so if the requirement that there be a call for competition applied and the utility decided to satisfy that requirement by submitting such a notice.”.

(7) Before Schedule 1 (activities constituting works) insert—

Regulation 2(1)

“SCHEDULE A1 PARTIES TO THE GPA

• Armenia

• Australia

• Canada

• European Union

• Hong Kong, China

• Iceland

• Israel

• Japan

• Korea, Republic of

• Liechtenstein

• Moldova, Republic of

• Montenegro

• Netherlands with respect to Aruba

• New Zealand

• Norway

• the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

• Singapore

• Switzerland

• Ukraine

• United States”.

PART 3 AMENDMENT OF SCOTTISH SECONDARY LEGISLATION

Amendment to the Public Contracts (Scotland) Regulations 2015

5.—(1) The Public Contracts (Scotland) Regulations 2015(5) are amended as follows.

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

(a) in the definition of “GPA”, for “between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended before IP completion day” substitute “signed at Marrakesh on 15th April 1994, as amended on or before the United Kingdom’s accession”;

(b) after the definition of “GPA” insert—

““GPA party” means any country, state or separate customs territory that is—

(a)

listed in Schedule 1A; or

(b)

a member State of the EU;”.

(3) In regulation 26 (conditions relating to the GPA and other international agreements)—

(a) in the heading, for “the GPA and other international agreements” substitute “international agreements by which the EU is bound, other than the GPA”;

(b) in paragraph (1), for “Annexes 1, 2 and 4 to 7 to the EU’s Appendix 1 to the GPA and by the other international agreements” substitute “the international agreements, other than the GPA,”;

(c) for paragraph (2) substitute—

“(2) Paragraph (1) is to be applied as if the United Kingdom were a member State.”.

(4) After regulation 26 insert—

“Conditions relating to the GPA

26A.   Where a contracting authority is covered by Annexes 1 or 2 to the United Kingdom’s Appendix 1 to the GPA in respect of a procurement that is covered by Annexes 4 to 7 to that Appendix, the contracting authority shall accord to the works, supplies, services and economic operators of any GPA party treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators of the United Kingdom.”.

(5) In regulation 87 (duty owed to economic operators)—

(a) in the heading, after “operators” insert “, including those from countries with whom the EU has a relevant international agreement other than the GPA”;

(b) in paragraph (2), omit “Condition 1, Condition 2 or”;

(c) omit paragraphs (3), (3A) and (5).

(6) After regulation 87 insert—

“Duty owed to economic operators from GPA parties

87A.— (1) The duty owed in accordance with regulation 87(1) (duty owed to economic operators, including those from countries with whom the EU has a relevant international agreement other than the GPA) is a duty owed also to an economic operator from a GPA party, but only where the agreement applies to the procurement concerned.

(2) For the purposes of paragraph (1), the GPA applies to a procurement if—

(a) the procurement may result in the award of a contract of any description; and

(b) at the relevant time—

(i) a GPA party has agreed with the United Kingdom that the GPA shall apply to a contract of that description; and

(ii) the economic operator is from that GPA party.

(3) In this regulation, “relevant time” means the date on which the contracting authority submitted a call for competition in respect of the contract to the UK e-notification service or would have done so had it been required by these Regulations to do so.”.

(7) After Schedule 1 (central government authorities) insert—

Regulation 2(1)

“SCHEDULE 1A PARTIES TO THE GPA

• Armenia

• Australia

• Canada

• European Union

• Hong Kong, China

• Iceland

• Israel

• Japan

• Korea, Republic of

• Liechtenstein

• Moldova, Republic of

• Montenegro

• Netherlands with respect to Aruba

• New Zealand

• Norway

• the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

• Singapore

• Switzerland

• Ukraine

• United States”.

Amendments to the Utilities Contracts (Scotland) Regulations 2016

6.—(1) The Utilities Contracts (Scotland) Regulations 2016(6) are amended as follows.

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

(a) in the definition of “GPA”, for “between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended before IP completion day” substitute “signed at Marrakesh on 15th April 1994, as amended on or before the United Kingdom’s accession”;

(b) after the definition of “GPA” insert—

““GPA party” means any country, state or separate customs territory that is—

(a)

listed in Schedule A1 (parties to the GPA); or

(b)

a member State of the EU;”.

(3) In regulation 41 (conditions relating to the GPA and other international agreements)—

(a) in the heading, for “the GPA and other international agreements” substitute “international agreements by which the EU is bound, other than the GPA”;

(b) in paragraph (1), for “Annexes 3 to 7 to the EU’s Appendix 1 to the GPA and by the other international agreements” substitute “the international agreements, other than the GPA,”;

(c) for paragraph (2) substitute—

“(2) Paragraph (1) is to be applied as if the United Kingdom were a member State.”.

(4) After regulation 41 insert—

“Conditions relating to the GPA

41A.— (1) Where a utility within the meaning of regulation 4(1)(a) (utilities) is covered by Annex 3 to the United Kingdom’s Appendix 1 to the GPA in respect of a procurement that is covered by Annexes 4 to 7 to that Appendix, the utility must accord to the works, supplies, services and economic operators of any GPA party treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators of the United Kingdom.”.

(5) In regulation 100 (duty owed to economic operators)—

(a) in the heading, after “operators” insert “, including those from countries with whom the EU has a relevant international agreement other than the GPA”;

(b) in paragraph (2)(a), omit “Condition 1, Condition 2 or”;

(c) omit paragraphs (3), (3A) and (5).

(6) After regulation 100 insert—

“Duty owed to economic operators from GPA parties

100A.— (1) The duty owed in accordance with regulation 100(1) (duty owed to economic operators, including those from countries with whom the EU has a relevant international agreement other than the GPA) is a duty owed also to an economic operator from a GPA party, but only where the agreement applies to the procurement concerned.

(2) For the purposes of paragraph (1), the GPA applies to a procurement if—

(a) the procurement may result in the award of a contract of any description; and

(b) at the relevant time—

(i) a GPA party has agreed with the United Kingdom that the GPA shall apply to a contract of that description; and

(ii) the economic operator is from that GPA party.

(3) In this regulation, “relevant time” means—

(a) if the utility selects economic operators to tender for or to negotiate the contract in accordance with a qualification system established in accordance with regulation 75 (qualification systems), the date on which the selection commences;

(b) if the utility satisfies the requirement that there be a call for competition by indicating the intention to award the contract in a periodic indicative notice in accordance with regulations 65 (periodic indicative notices) or 89(1)(b) (publication of notices), the date on which the notice is submitted to the UK e-notification service; or

(c) in any other case, the date on which the utility submitted a contract notice (or design contest notice) to the UK e-notification service or would have done so if the requirement that there be a call for competition applied and the utility decided to satisfy that requirement by submitting such a notice.”.

(7) Before Schedule 1 (activities constituting works) insert—

Regulation 2(1)

“SCHEDULE A1 PARTIES TO THE GPA

• Armenia

• Australia

• Canada

• European Union

• Hong Kong, China

• Iceland

• Israel

• Japan

• Korea, Republic of

• Liechtenstein

• Moldova, Republic of

• Montenegro

• Netherlands with respect to Aruba

• New Zealand

• Norway

• the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

• Singapore

• Switzerland

• Ukraine

• United States”.

Amendments to the Concession Contracts (Scotland) Regulations 2016

7.—(1) The Concession Contracts (Scotland) Regulations 2016(7) are amended as follows.

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

(a) in the definition of “GPA”, for “between certain parties to the World Trade Organisation signed in Marrakesh on 15th April 1994 as amended before IP completion day” substitute “signed at Marrakesh on 15th April 1994, as amended on or before the United Kingdom’s accession”;

(b) after the definition of “GPA” insert—

““GPA party” means any country, state or separate customs territory that is—

(a)

listed in Schedule 1A; or

(b)

a member State of the EU;”.

(3) In regulation 51 (duty owed to economic operators)—

(a) in the heading, after “operators” insert “, including those from countries with whom the EU has a relevant international agreement other than the GPA”;

(b) in paragraph (2), omit “Condition 1, Condition 2 or”;

(c) omit paragraphs (3), (3A) and (5).

(4) After regulation 51 insert—

“Duty owed to economic operators from GPA parties

51A.— (1) The duty owed in accordance with regulation 51(1) (duty owed to economic operators, including those from countries with whom the EU has a relevant international agreement other than the GPA) is a duty owed also to an economic operator from a GPA party, but only where the agreement applies to the procurement concerned.

(2) For the purposes of paragraph (1), the GPA applies to a procurement if—

(a) the procurement may result in the award of a contract of any description; and

(b) at the relevant time—

(i) a GPA party has agreed with the United Kingdom that the GPA shall apply to a contract of that description; and

(ii) the economic operator is from that GPA party.

(3) In this regulation, “relevant time” means the date on which the contracting authority submitted a call for competition in respect of the contract to the UK e-notification service or would have done so if it has been required by these Regulations to do so.”.

(5) After Schedule 1 (activities constituting works) insert—

Regulation 2(1)

“SCHEDULE 1A PARTIES TO THE GPA

• Armenia

• Australia

• Canada

• European Union

• Hong Kong, China

• Iceland

• Israel

• Japan

• Korea, Republic of

• Liechtenstein

• Moldova, Republic of

• Montenegro

• Netherlands with respect to Aruba

• New Zealand

• Norway

• the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu

• Singapore

• Switzerland

• Ukraine

• United States”.

Julia Lopez

Parliamentary Secretary

Cabinet Office

At 2.00 p.m. on 12th May 2021

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make amendments to various United Kingdom and Scottish public procurement regulations for the purpose of implementing the Agreement on Government Procurement. This includes consequential amendments.

The amendments made by these Regulations are “steady state amendments”, as that term is defined in the Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1319) and the Public Procurement etc. (EU Exit) (Scotland) (Amendment) Regulations 2020 (S.S.I. 2020/468) (“the EU Exit SIs”). As such, in accordance with the transitional provisions in the EU Exit SIs, these amendments do not affect any procedure (as that term is defined in the Schedules to the EU Exit SIs) launched before but not yet finalised by IP completion day.

(1)

2021 c. 10. See the definition of “appropriate authority” in section 5(1).

(2)

S.I. 2015/102, as amended by S.I. 2016/275 and S.I. 2020/1319; there are other amending instruments but none is relevant.

(3)

S.I. 2016/273, as amended by S.I. 2019/624 and S.I. 2020/1319.

(4)

S.I. 2016/274, as amended by S.I. 2016/696, S.I. 2019/624 and S.I. 2020/1319.

(5)

S.S.I. 2015/446, as amended by S.S.I. 2016/47 and S.S.I. 2020/468.

(6)

S.S.I. 2016/49, as amended by S.S.I. 2020/468.

(7)

S.S.I. 2016/65, as amended by S.S.I. 2016/125 and S.S.I. 2020/468.