The Public Procurement (International Trade Agreements) (Amendment) (Wales) (No. 2) Regulations 2023

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations replace The Public Procurement (International Trade Agreements) (Amendment) (Wales) Regulations 2023 (S.I. 2023/506 (W.76)).

These Regulations make amendments to various United Kingdom public procurement regulations for the purpose of implementing two Free Trade Agreements entered into by the United Kingdom, one with Australia (the “UK-Australia FTA”) and the other with New Zealand (the “UK-New Zealand FTA”).

The amendments made by these Regulations implement the UK-Australia FTA and the UK-New Zealand FTA, as well as making three sets of amendments of general application under section 1(2) of the Trade (Australia and New Zealand) Act 2023 (c. 9). These amendments of general application are required to ensure compliance with commitments made in the UK-Australia FTA.

The first set of amendments of general application introduce the rule that, where the value of a procurement cannot be estimated, the procurement is to be treated as having been valued at the relevant threshold for that type of procurement. These amendments are made to the Public Contracts Regulations 2015 (S.I. 2015/102) by regulation 2(3)(b), to the Concession Contracts Regulations 2016 (S.I. 2016/273) by regulation 3(3), and to the Utilities Contracts Regulations 2016 (S.I. 2016/274) by regulation 4(3)(b).

In the case of the Public Contracts Regulations 2015 and the Utilities Contracts Regulations 2016, special provision is made for the situation in which the value of one or more lots cannot be estimated. Regulation 2(3)(a) makes the relevant amendment to the Public Contracts Regulations 2015 and regulation 4(3)(a) makes the relevant amendment to the Utilities Contracts Regulations 2016.

The second set of amendments of general application remove the possibility of using a prior information notice and a periodic indicative notice, respectively, as the call for competition. These amendments are made to the Public Contracts Regulations 2015 by regulation 2(2) and (5) to (25) and to the Utilities Contracts Regulations 2016 by regulation 4(2) and (5) to (22).

The third set of amendments of general application prohibit contracting authorities and utilities from terminating contracts in a manner that circumvents obligations in the UK-Australia FTA. These amendments are made to the Public Contracts Regulations 2015 by regulation 2(4), to the Concession Contracts Regulations 2016 by regulation 3(2), and to the Utilities Contracts Regulations 2016 by regulation 4(4).

Regulation 5 of these Regulations makes provision for transitional arrangements, in exercise of the power conferred by section 2(1)(d) of the Trade (Australia and New Zealand) Act 2023.

Regulation 6 revokes The Public Procurement (International Trade Agreements) (Amendment) (Wales) Regulations 2023.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, it was not considered necessary to carry out a regulatory impact assessment as to the likely costs and benefits of complying with these Regulations.