The Public Procurement (Amendment etc.) (EU Exit) Regulations 2019

Amendments commenced on exit day

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

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

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

(b) after the definition of “Contracts Finder” insert—

““covered by regulation 3(2)”, in relation to an element, a part of a contract, or procurement, means that regulation 3(2)—

(a)

applies to that element, part or procurement, or

(b)

would do so if this Part applied;”;

(c) after the definition of “design contests” insert—

““devolved Northern Ireland authority” means a contracting authority whose functions are wholly or mainly functions which could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998(2));

“devolved Welsh authority” has the meaning given by section 157A of the Government of Wales Act 2006(3);”;

(d) omit the definitions of “ESPD” and “EU Publications Office”;

(e) in the definition of “GPA”, after “amended” insert “before exit day”;

(f) in the definition of “innovation”, omit “the Europe 2020 strategy for smart,”;

(g) after the definition of “qualified certificate for electronic signature” insert—

““the Retained Treaties” means anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 because of the effect which the Treaty on European Union or TFEU had immediately before exit day in giving rise to any of the rights, powers, liabilities, obligations, restrictions, remedies and procedures mentioned in that section;

“SPD” means the Single Procurement Document referred to in regulation 59(1);”;

(h) omit the definition of “the Treaties”;

(i) before the definition of “VAT” insert—

““the UK e-notification service” has the meaning given by regulation 51(5), and references (in whatever terms) to the submission of notices to that service are to be construed in accordance with regulation 51(7);”.

(3) In regulation 3 (subject-matter and scope of Part 2), for paragraph (2) substitute the following—

“(2) This Part—

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

(b) does 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.

(3) The arms, munitions and war material to which paragraph (2)(b) applies are, subject to paragraph (5), those included in the 1958 List.

(4) Subject to the effect of any regulations made under paragraph (5), any measures which, if they had been taken immediately before exit day, would have been covered by Article 346 of TFEU shall be regarded as measures covered by paragraph (2).

(5) The Secretary of State may make regulations providing that the 1958 List is to be treated for the purposes of this Part as if it were changed in respects specified in the regulations.

(6) In this regulation, “the 1958 List” means 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.”.

(4) In regulation 4 (mixed procurement), in paragraph (3), for “Article 346 of TFEU” substitute “regulation 3(2)”.

(5) In regulation 5 (threshold amounts)—

(a) in paragraph (1)—

(i) in sub-paragraph (a), for “the sum specified in Article 4(a) of the Public Contracts Directive” substitute “£4,551,413”;

(ii) in sub-paragraph (b), for “the sum specified in Article 4(b) of the Public Contracts Directive” substitute “£118,133”;

(iii) in sub-paragraph (c), for “the sum specified in Article 4(c) of the Public Contracts Directive” substitute “£181,302”;

(iv) in sub-paragraph (d), for “the sum specified in Article 4(d) of the Public Contracts Directive” substitute “£615,278”;

(b) in paragraph (2), for “Article 4(c) of the Public Contracts Directive” substitute “paragraph (1)(c)”;

(c) omit paragraphs (3) and (4).

(6) After regulation 5 insert—

“Review and amendment of certain thresholds

5A.— (1) Every two years the Minister for the Cabinet Office must review the thresholds mentioned in regulation 5(1)(a), (b) and (c) (“the reviewable thresholds”) to verify whether they correspond with the thresholds established for those purposes in the GPA.

(2) The Minister must do so by calculating the sterling value of each of the reviewable thresholds on the basis of the average daily value of sterling in terms of the special drawing rights mentioned in the GPA over a period of 24 months ending with 31st August.

(3) The Minister must make that calculation using the applicable conversion rates in the monthly International Financial Statistics published from time to time by the International Monetary Fund.

(4) If the sterling value of a reviewable threshold so calculated differs from the sum for the time being mentioned in regulation 5(1) in respect of that threshold, the Minister must make regulations amending regulation 5(1) so as to substitute for that sum the sum equal to that value.

(5) Such regulations—

(a) must be made and laid before Parliament before 1st November following the end of the 24 month period covered by the review; and

(b) must provide for the substitution to come into force on the following 1st January.

(6) The first review under this regulation must relate to the 24 month period ending with 31st August 2019.”.

(7) In regulation 6 (methods for calculating the estimated value of procurement)—

(a) in paragraph (7), for “sent” substitute “submitted”;

(b) in paragraph (14)(a), for “80,000 euro” substitute “£65,630”;

(c) in paragraph (14)(b), for “1 million euro” substitute “£820,370”.

(8) In regulation 9 (public contracts awarded, and design contests organised, pursuant to international rules), in paragraph (1)(a)—

(a) before “Treaties” insert “Retained”;

(b) for “a member State and one or more third” substitute “the United Kingdom and one or more other”.

(9) In regulation 10 (specific exclusions for service contracts), in paragraph (1)(d)—

(a) in paragraph (i)—

(i) in sub-paragraph (aa), for “a member State, a third” substitute “the United Kingdom, another”;

(ii) in sub-paragraph (bb), for “a member State or a third” substitute “the United Kingdom or another”;

(b) in both paragraph (iv) and (v), for “member State concerned” substitute “United Kingdom”.

(10) In regulation 11 (service contracts awarded on the basis of an exclusive right), for “TFEU” substitute “anything which is retained EU law by virtue of section 4 of the European Union (Withdrawal) Act 2018 because of the effect which TFEU had immediately before exit day in giving rise to any of the rights, powers, liabilities, obligations, restrictions, remedies and procedures mentioned in that section”.

(11) In regulation 12 (public contracts between entities within the public sector), in paragraphs (1)(c), (2) and (4)(c), before “Treaties” insert “Retained”.

(12) In regulation 13 (contracts subsidised by contracting authorities)—

(a) in paragraph (1)—

(i) in sub-paragraph (a), for “Article 13(a) of the Public Contracts Directive” substitute “regulation 5(1)(a)”;

(ii) in sub-paragraph (b), for “Article 13(b) of the Public Contracts Directive” substitute “regulation 5(1)(c)”;

(b) omit paragraph (2).

(13) In regulation 15 (defence and security), in paragraph (2)(a), omit “or another member State”.

(14) In regulation 16 (mixed procurement involving defence or security aspects)—

(a) in paragraphs (1) and (5)(a), for “Article 346 of TFEU” substitute “regulation 3(2)”;

(b) in paragraph (8), for “to which Article 346 of TFEU applies” substitute “covered by regulation 3(2)”.

(15) In regulation 17 (public contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules), in paragraph (1)—

(a) in sub-paragraph (a)—

(i) before “Treaties” insert “Retained”;

(ii) for “a member State” substitute “the United Kingdom”;

(iii) for “third” substitute “other”;

(b) in sub-paragraph (b), for “a member State or a third” substitute “the United Kingdom or another”.

(16) In regulation 19 (economic operators), omit paragraph (1).

(17) In regulation 20 (reserved contracts), in paragraph (2), for “Article 20 of the Public Contracts Directive” substitute “this regulation”.

(18) In regulation 22 (rules applicable to communication)—

(a) in paragraph (15)(a)(i)—

(i) for “in the Official Journal” substitute “on the UK e-notification service”;

(ii) for “sent” substitute “submitted”;

(b) in paragraph (20), for the words from “the Public” to the end substitute “this Part”.

(19) After regulation 22 insert—

“Powers to amend regulation 22

Exceptions to obligation to require use of electronic means of communication

22A.— (1) The Minister for the Cabinet Office may make regulations amending paragraph (3) of regulation 22 by—

(a) omitting any of the situations described in that paragraph where the Minister considers that technological developments render it inappropriate for that situation to continue to be an exception from the obligation to require electronic means of communication, or

(b) inserting a description of a new situation where, exceptionally, the Minister considers that it must become a new exception because of technological developments.

(2) Where the Minister considers that technological developments render it inappropriate for there to continue to be any exceptions from the obligation to require electronic means of communication, the Minister may make regulations omitting paragraph (3) from regulation 22.

(3) Where regulations have been made under paragraph (2) and, exceptionally, the Minister considers that a new exception must be provided for because of technological developments, the Minister may make regulations re-inserting paragraph (3) into regulation 22 in terms which give effect to that new exception (and the powers conferred by paragraphs (1) and (2) of this regulation may subsequently be exercised in relation to paragraph (3) as re-inserted).

Requirements relating to tools and devices for electronic receipt of documents

(4) The Minister for the Cabinet Office may make regulations amending the technical details and characteristics set out in regulation 22(16) if the Minister considers it appropriate to do so to take account of technical developments.”.

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

(a) in the heading, omit “and other international agreements”;

(b) in the body of the regulation, the text of the existing regulation becomes paragraph (1) and is amended as follows—

(i) omit “and by the other international agreements by which the EU is bound”;

(ii) for “those agreements” substitute “the GPA”;

(iii) for “of the EU” substitute “of the United Kingdom”;

(c) after that paragraph (1) insert—

“(2) For the purposes of paragraph (1)—

(a) each country that was a member State immediately before exit day is deemed to be a signatory to the GPA; and

(b) the EU’s Appendix 1 to the GPA has effect as if each such country were referred to in the same way that Iceland is referred to in the following places in that Appendix—

(i) paragraph 2(a) of Annex 1;

(ii) Annex 6.”.

(21) In regulation 26 (choice of procedures), in paragraph (2), omit “and the Public Contracts Directive”.

(22) In regulation 27 (open procedure)—

(a) in paragraph (2), for “sent” substitute “submitted”;

(b) in paragraph (4)—

(i) in sub-paragraph (a), for “for the contract notice in section I of part B of Annex V to the Public Contracts Directive” substitute “by regulation 48(2)”;

(ii) in sub-paragraph (b), for “sent” (in both places) substitute “submitted”;

(c) in paragraph (5), for “sent” substitute “submitted”.

(23) In regulation 28 (restricted procedure)—

(a) in paragraph (2)(a), for “sent” substitute “submitted”;

(b) in paragraph (6)—

(i) in sub-paragraph (a), for “in section I of part B of Annex V to the Public Contracts Directive” substitute “by regulation 48(2)”;

(ii) in sub-paragraph (b), for “sent” (in both places) substitute “submitted”;

(c) in paragraph (10)(a), for “sent” substitute “submitted”.

(24) In regulation 29 (competitive procedure with negotiation)—

(a) in paragraph (4)(a), for “sent” substitute “submitted”;

(b) in paragraph (6)—

(i) in sub-paragraph (a), for “in section 1 of part B of Annex V to the Public Contracts Directive” substitute “by regulation 48(2)”;

(ii) in sub-paragraph (b), for “sent” (in both places) substitute “submitted”;

(c) in paragraph (10)(a), for “sent” substitute “submitted”.

(25) In regulation 30 (competitive dialogue), in paragraph (2), for “sent” substitute “submitted”.

(26) In regulation 31 (innovation partnership), in paragraph (5), for “sent” substitute “submitted”.

(27) In regulation 32 (use of the negotiated procedure without prior publication), in paragraph (2)(a), for the words from “and that” to the end substitute—

“and that—

(i) a report is sent to the Cabinet Office if it so requests;

(ii) where the contracting authority is a devolved Welsh authority, a report is sent to the Welsh Ministers if they so request (whether or not the Cabinet Office also makes a request under paragraph (i));

(iii) where the contracting authority is a devolved Northern Ireland authority, a report is sent to a Northern Ireland department if that department so requests (whether or not the Cabinet Office also makes a request under paragraph (i));”.

(28) In regulation 34 (dynamic purchasing systems)—

(a) in paragraph (9)(a), for “sent” substitute “submitted”;

(b) in paragraph (25), for “ESPD” substitute “SPD”;

(c) for paragraph (28) substitute the following—

“(28) Where the period of validity is changed without terminating the dynamic purchasing system, the contracting authority shall submit for publication on the UK e-notification service a notice of the kind used initially for the call for competition for the dynamic purchasing system.

(28A) Where a dynamic purchasing system is terminated before the end of the period of validity that had most recently been indicated under paragraph (27) or (28), the contracting authority shall submit for publication on the UK e-notification service a contract award notice under regulation 50.”.

(29) Omit regulation 39 (procurement involving contracting authorities from other member States).

(30) In regulation 42 (technical specifications)—

(a) in paragraph (9), for “adopted by a legal act of the EU” substitute “imposed by retained EU law”;

(b) in paragraph (11), in the words before sub-paragraph (a), omit “to the extent that they are compatible with EU law,”.

(31) In regulation 48 (prior information notices)—

(a) in paragraph (2), after “Directive” insert—

“, but as if—

(a) in paragraph 2, “the second and third subparagraph of Article 53(1)” were a reference to regulation 53(3) and (4) of these Regulations; and

(b) 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)(a), for “send” substitute “submit”;

(c) in paragraph (4)—

(i) for “send” substitute “submit”;

(ii) after “Directive” insert “, but as if, in paragraph 6, “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”;

(d) in paragraph (5)—

(i) in sub-paragraph (c)—

(aa) for “set out in section 1 of part B of Annex V to the Public Contracts Directive” substitute “required by paragraph (2)”;

(bb) for “that part” substitute “part B of Annex 5 to the Public Contracts Directive, but as if paragraph 12 of that part (financing by EU funds) were omitted”;

(ii) in sub-paragraph (d), for “been sent” substitute “been submitted”.

(32) For regulation 49 (contract notices) substitute—

“Contract notices

49.   Contract notices—

(a) shall contain the information set out in part C of Annex 5 to the Public Contracts Directive, but as if—

(i) in paragraph 2, “the second and third subparagraphs of Article 53(1)” were a reference to regulation 53(3) and (4) of these Regulations;

(ii) paragraph 24 (financing by EU funds) were omitted;

(iii) in paragraph 26, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Public Contracts Regulations 2015)”; and

(iv) in paragraph 28, “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; and

(b) shall be submitted for publication in accordance with regulation 51.”.

(33) In regulation 50 (contract award notices)—

(a) in paragraphs (1), (4) and (5)(a) and (b), for “send” substitute “submit”;

(b) for paragraph (2) substitute—

“(2) Such notices—

(a) shall contain the information set out in part D of Annex 5 to the Public Contracts Directive, but as if—

(i) in paragraph 9, “Article 67” were a reference to regulation 67 of these Regulations;

(ii) in paragraph 11(b), the words “Member State or from a third” were omitted;

(iii) paragraph 15 (financing by EU funds) were omitted;

(iv) in paragraph 17, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Public Contracts Regulations 2015)”; and

(v) in paragraph 18, “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; and

(b) shall be submitted for publication in accordance with regulation 51.”.

(34) In regulation 51 (form and manner of sending notices for publication at EU level)—

(a) for the heading, substitute “Publication on the UK e-notification service”;

(b) in paragraph (1)—

(i) in the words before sub-paragraph (a)—

(aa) after “regulations” insert “34,”;

(bb) for “sent” substitute “submitted”;

(cc) after “notices)” insert “shall be submitted to the UK e-notification service for publication.”;

(ii) omit sub-paragraphs (a) and (b);

(c) in paragraph (2), for “sent to the EU Publications Office” substitute “submitted to the UK e-notification service”;

(d) in paragraph (3)—

(i) for “EU Publications Office” substitute “provider of the UK e-notification service”;

(ii) omit “the receipt of the notice and of”;

(e) in paragraph (4)—

(i) for “send” substitute “submit”;

(ii) for “EU Publications Office” substitute “UK e-notification service”;

(iii) omit the words from “, provided” to the end;

(f) after paragraph (4) insert—

“(5) In these Regulations, “the UK e-notification service” means a single web-based portal which is provided, for purposes which include the purposes of this Part, by or on behalf of the Cabinet Office.

(6) The Minister for the Cabinet Office must make arrangements under which—

(a) notices that are submitted to the UK e-notification service for publication are published in an area of the portal that is freely accessible to the public; and

(b) confirmations are issued for the purposes of paragraph (3).

(7) For the purposes of these Regulations, a notice of any description is submitted to the UK e-notification service if the information comprising the notice is entered in the portal in such form or manner as the portal may elicit it and in compliance with any specific instructions that are given within the portal about how the information, or any particular element of it, is to be entered.”.

(35) In regulation 52 (publication at national level)—

(a) in the heading, for “at national level” substitute “otherwise than on the UK e-notification service”;

(b) in paragraph (1)—

(i) after “regulations” insert “34,”;

(ii) for “by the EU Publications Office” substitute “on the UK e-notification service”;

(c) in paragraph (3)—

(i) after “regulations” insert “34,”;

(ii) from the words from “at national level” to the end substitute “otherwise than on the UK e-notification service before they are published on that service”;

(d) in paragraph (4)—

(i) for “at national level” substitute “otherwise than on the UK e-notification service”;

(ii) for the words from “by the EU” to the end substitute “on that service within 48 hours after the notice was submitted to that service”;

(e) in paragraph (5)—

(i) for “at national level” substitute “otherwise than on the UK e-notification service”;

(ii) for “sent to the EU Publications Office” substitute “submitted to that service”;

(iii) for “sending of the notice to the EU Publications Office” substitute “submission of the notice to that service”;

(f) in paragraph (6)—

(i) in sub-paragraph (a), for “sent to the EU Publications Office” substitute “submitted to the UK e-notification service”;

(ii) in sub-paragraph (b), for “sending” substitute “submission”.

(36) In regulation 53 (electronic availability of procurement documents), in paragraph (1), for “in the Official Journal of a notice sent” substitute “on the UK e-notification service of a notice submitted”.

(37) In regulation 56 (general principles in awarding contracts etc)—

(a) in paragraph (2)—

(i) omit “EU law,”;

(ii) after “agreements or” insert “, subject to paragraphs (2A) and (2B),”;

(b) after paragraph (2) insert—

“(2A) Where—

(a) the United Kingdom has ratified an international agreement establishing obligations in any of the fields mentioned in paragraph (2), and

(b) the agreement is not already listed,

the Minister for the Cabinet Office may make regulations providing that paragraph (2) is to have effect as if the agreement were listed.

(2B) Where the United Kingdom has ceased to ratify an international agreement that is already listed, the Minister for the Cabinet Office may make regulations providing that paragraph (2) is to have effect as if the agreement were not listed.

(2C) In paragraphs (2A) and (2B)—

(a) “listed” means listed as described in paragraph (2); and

(b) where paragraph (2) already has effect as if an agreement were listed, “already listed” includes that agreement.”.

(38) In regulation 57 (exclusion grounds), in paragraph (1)—

(a) omit sub-paragraph (e);

(b) in sub-paragraph (n), in the words before paragraph (i), for “Article 57(1)” substitute “Article 57(1)(a), (b), (d), (e) or (f)”.

(39) In regulation 58 (selection criteria), omit paragraph (5).

(40) In regulation 59 (European Single Procurement Document)—

(a) in the heading, omit “European”;

(b) in paragraph (1), omit “European”;

(c) in each of paragraphs (2) to (7), for “ESPD” substitute “SPD”;

(d) in paragraph (11)(a), for “any member State” substitute “the United Kingdom”.

(41) In regulation 60 (means of proof)—

(a) in paragraph (4)(a) and (b), omit “member State or”;

(b) in paragraph (5)—

(i) omit “member State or” in both places;

(ii) omit “member States or”.

(42) Omit regulation 61 (recourse to e-Certis).

(43) In regulation 62 (quality assurance standards and environmental management standards)—

(a) omit paragraph (2);

(b) in paragraph (4)—

(i) omit sub-paragraphs (a) and (b);

(ii) in sub-paragraph (c), omit “other”;

(iii) omit the words after sub-paragraph (c).

(44) Omit regulation 64 (recognition of official lists of approved economic operators and certification by certification bodies).

(45) In regulation 68 (life-cycle costing)—

(a) in paragraph (3)(c)—

(i) omit ‘third’;

(ii) omit the words from “or other” to the end;

(b) omit paragraphs (5) and (6).

(46) In regulation 69 (abnormally low tenders)—

(a) in paragraph (2), omit sub-paragraph (f);

(b) omit paragraphs (6) and (7).

(47) In regulation 71 (subcontracting), in paragraph (5), for “ESPDs” substitute “SPDs”.

(48) In regulation 72 (modification of contracts during their term)—

(a) in paragraph (3), for “send” substitute “submit”;

(b) in paragraph (4), after “Directive” insert—

“, but as if—

(a) paragraph 9 (financing by EU funds) were omitted;

(b) in paragraph 11, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Public Contracts Regulations 2015)”; and

(c) in paragraph 12, “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”.

(49) In regulation 73 (termination of contracts), in paragraph (1)—

(a) after paragraph (a), insert “or”;

(b) after paragraph (b), omit “or”;

(c) omit paragraph (c).

(50) In regulation 75 (publication of notices)—

(a) in paragraph (4), for “sending” substitute “submitting”;

(b) in paragraph (5), for “send” substitute “submit”.

(51) In regulation 77 (reserved contracts for certain services), in paragraph (5), for “Article 77 of the Public Contracts Directive” substitute “this regulation”.

(52) In regulation 79 (notices)—

(a) in paragraph (2)—

(i) in sub-paragraph (a), after “Directive” insert—

“, but as if—

(i) in paragraph 2, “the second and third subparagraphs of Article 53(1)” were a reference to regulation 53(3) and (4) of these Regulations;

(ii) in paragraph 16, “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”;

(ii) in sub-paragraph (b), for “sent” substitute “submitted”;

(b) in paragraph (3)—

(i) for “send” substitute “submit”;

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

(c) in paragraph (4), after “Directive” insert—

“, but as if—

(a) paragraph 12 (financing by EU funds) were omitted;

(b) in paragraph 13, “in the Official Journal of the European Union” read “on the UK e-notification service (within the meaning of the Public Contracts Regulations 2015)”; and

(c) in paragraph 14, “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”.

(53) In regulation 80 (rules on the organisation of design contests and the selection of participants), omit paragraph (2).

(54) In regulation 83 (retention of contract copies)—

(a) in paragraph (1)—

(i) in sub-paragraph (a), for “1,000,000 EUR” substitute “£820,370”;

(ii) in sub-paragraph (b), for “10,000,000 EUR” substitute “£8,203,700”;

(b) in paragraph (2), for “applicable EU or national rules on access to documents and data protection” substitute “rules on access to documents and data protection applicable in the relevant part of the United Kingdom”.

(55) In regulation 84 (reporting and documentation requirements)—

(a) for paragraph (4) substitute—

“(4) A contracting authority shall communicate the report, or its main elements—

(a) to the Cabinet Office if it so requests;

(b) where the contracting authority is a devolved Welsh authority, to the Welsh Ministers if they so request (whether or not the Cabinet Office also makes a request under sub-paragraph (a));

(c) where the contracting authority is a devolved Northern Ireland authority, to a Northern Ireland department if that department so requests (whether or not the Cabinet Office also makes a request under sub-paragraph (a)).”;

(b) omit paragraph (5);

(c) omit paragraph (6) and the italic heading preceding it.

(56) After regulation 84 insert—

“CHAPTER 4A REGULATIONS UNDER THIS PART

General provisions about regulations under this Part

84A.— (1) Regulations under this Part are to be made by statutory instrument.

(2) A statutory instrument containing regulations under regulation 3(5) (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) Subject to paragraph (5), Regulations may not be made under regulations 22A or 56 without the consent of the Welsh Ministers and a Northern Ireland Department.

(5) Regulations (“the amending regulations”) may be made under regulation 22A or 56 without such consent, but in such cases the amending regulations must amend regulation 22 or, as the case may be, make provision under regulation 56, in such a way as to avoid altering the effect of that regulation in so far as it applies to–

(a) devolved Welsh authorities, where the Welsh Ministers have not consented to the making of the amending regulations;

(b) devolved Northern Ireland authorities, where no Northern Ireland Department has consented to the making of the amending regulations.

(6) Without prejudice to paragraph (7), to the extent that the amending regulations are being made under regulation 22A, the duty imposed by paragraph (5) may be complied with by—

(a) restructuring regulation 22 (so that, for example, different paragraphs apply to devolved Welsh authorities and other contracting authorities or utilities respectively, where the Welsh Ministers have not consented to the making of the amending regulations); and

(b) amending the powers conferred by regulation 22A so that they refer to the relevant provisions in regulation 22 as so restructured.

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

(57) In regulation 89 (duty owed to economic operators from EEA states)—

(a) in the heading, for “EEA states” substitute “the United Kingdom and Gibraltar”;

(b) in paragraph (1)(b), for “enforceable EU obligation” substitute “retained EU obligation that is enforceable by virtue of section 4 of the European Union (Withdrawal) Act 2018”;

(c) in paragraph (2), for “another EEA state” substitute “Gibraltar”.

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

(a) in paragraph (1)—

(i) in sub-paragraph (a)—

(aa) for “GPA state” substitute “country other than the United Kingdom”;

(bb) for “the GPA” substitute “Condition 1 or Condition 2”;

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

(b) for paragraph (2) substitute—

“(2) Condition 1 is that—

(a) at the relevant time the economic operator is from a GPA state;

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

(c) immediately before exit day that GPA state had agreed with the EU that the GPA shall apply to a contract of that description.

(2A) Condition 2 is that—

(a) at the relevant time the economic operator is from a country which, immediately before exit day, was a member State other than the United Kingdom;

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

(c) immediately before exit day the EU had agreed with a GPA state that the GPA shall apply to a contract of that description.”;

(c) omit paragraph (3);

(d) in paragraph (4)—

(i) in the definition of “GPA state”, for “, other than an EEA state, which at the relevant time is” substitute “which immediately before exit day was”;

(ii) in the definition of “relevant time”—

(aa) for “sent” substitute “submitted”;

(bb) for “EU Publications Office” substitute “UK e-notification service”.

(59) In regulation 93 (special time limits for seeking a declaration of ineffectiveness), in paragraph (3), for “in the Official Journal”, substitute “on the UK e-notification service”.

(60) In regulation 99 (grounds for ineffectiveness)—

(a) in paragraphs (3)(b) and (c), for “in the Official Journal” substitute “on the UK e-notification service”;

(b) in paragraph (4), in the words before sub-paragraph (a), omit the words from “is in” to “and which”.

(61) In regulation 106 (publication of information on Contracts Finder where contract notices are used)—

(a) in paragraph (1)—

(i) for “sends” substitute “submits”;

(ii) for “EU Publications Office” substitute “UK e-notification service”;

(b) in paragraph (4), for “by the EU Publications Office” substitute “on the UK e-notification service”;

(c) in paragraph (5)—

(i) for “sending” substitute “submitting”;

(ii) for “EU Publications Office” substitute “UK e-notification service”.

(62) In regulation 108 (publication of information on Contracts Finder about contracts awarded)—

(a) in paragraph (1)(a)—

(i) for “sends” substitute “submits”;

(ii) for “EU Publications Office” substitute “UK e-notification service”;

(b) in paragraph (5)—

(i) for “sends, or intends to send” substitute “submits, or intends to submit”;

(ii) for “EU Publications Office” substitute “UK e-notification service”;

(iii) for the words from “earlier than” to the end substitute “before the notice is published on the UK e-notification service”;

(c) in paragraph (7), for “by the EU Publications Office” substitute “on the UK e-notification service”;

(d) in paragraph (8)—

(i) for “sending” substitute “submitting”;

(ii) for “EU Publications Office” substitute “UK e-notification service”.

(63) In regulation 112 (publication of information on Contracts Finder about contracts awarded), in paragraph (4), in the definition of “SME”, for the words from “the Commission” to the end substitute “Annex 1 to Regulation (EU) No 651/2014”.

(64) Omit Schedule 5 (professional and trade registers etc.).

(1)

S.I. 2015/102, amended by S.I. 2016/275, 696; there are other amending instruments but none is relevant.

(2)

1998 c. 47; section 6 was amended by S.I. 2011/1053, article 6(2)(a) and by the European Union (Withdrawal) Act 2018 (c. 16) (“the 2018 Act”), section 12(5); section 6A was inserted by the 2018 Act, section 12(6); section 7 was amended by the Justice (Northern Ireland) Act 2002 (c. 26), section 84(1) and Schedule 13, by the Northern Ireland (Miscellaneous Provisions) Act 2006 (c. 33) and by the 2018 Act, Schedule 3, paragraphs 50 and 51; section 7A was inserted by the Northern Ireland (Miscellaneous Provisions) Act 2014 (c. 13), section 6(1) and (3).

(3)

2006 c. 32; section 157A was inserted by the Wales Act 2017 (c. 4), section 4(1).