The Public Procurement (Amendment) (EU Exit) Regulations 2020 (SI 2020 No. 1319) (“the 2020 Regulations”) were made on 19th November, in readiness for the expiration of the transition period of the United Kingdom leaving the European Union (the “EU”).
The 2020 Regulations revoke and replace the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/560) and the Public Procurement (Amendment etc. (EU Exit) (No.2) Regulations 2019 (SI 2019/623) (the “2019 Regulations”). Accordingly, the 2019 Regulations will no longer take effect after expiry of the transition period at the end of 2020.
The 2020 Regulations contain amendments broadly along the same lines as the 2019 Regulations, relating to Public Contract Regulations 2015 (the “PCR 2015”); the Concession Contract Regulations 2016 (the “CCR 2016”); and the Utilities Contracts Regulations 2016 (the “UCR 2016”). The majority of these changes come into effect on “IP Completion Day” – 11pm on 31st December 2020, while a handful take effect 12 months later.
The amendments to the PCR 2015, CCR 2016 and UCR 2016 reflect the practical steps the UK is taking as a result of leaving the EU.
What has changed?
It is unsurprising that terminology such as “the Official Journal of the European Union”, “member States”, “EU Publications Office” and “Treaties” have either been removed or replaced with the “UK e-notification service”, the “United Kingdom” and “Retained Treaties”.
The 2020 Regulations place limitations on the extent of the enforceability of EU law and Treaties. All aspects of EU law in respect of the Directives relating to public procurement, except where expressly stated otherwise by UK domestic legislation (including the 2020 Regulations), will continue to be in force after IP Completion Day. However, further amendments or developments of EU related procurement principles/law after 11pm on 31st December 2020 will not be incorporated into UK law.
The financial thresholds in respect of PCR 2015 and UCR 2016 are amended by virtue of regulations 6(5) and 10(6) of the 2020 Regulations respectively. The amendments to those regulations now state the financial thresholds in Pound Sterling and remove reference to the Public Contracts Directive and Utilities Contracts Directive. This, in turn, now places the onus of maintaining and updating these thresholds on the relevant Cabinet Office Minister every two years.
What effect will this have on existing procurements?
The implications of the 2020 Regulations for ongoing procurements at the time of IP Completion Day are minimal. Those procurements will continue without being subject to any substantive changes in the procurement rules applicable to them. Accordingly, if, for example, a Contracting Authority or Utility started a procurement exercise in September 2020 and it is still ongoing in January 2021 then the applicable rules will be the unamended PCR 2015, UCR 2016 or CCR 2016.
Note that ongoing procurements in this context refer to procurements where a call for competition or any other invitation to submit application has been made, and have not yet been finalised – that is, the procurement has not reached the point of publication of a contract award notice, or conclusion of a contract (without need for an award notice), or confirmed as not being awarded. The Schedule to the 2020 Regulations clarifies that the amendments to the procurement rules do not affect the operation of a framework agreement that was either concluded and neither expired or terminated prior to the IP Completion Day; or which was concluded after IP Completion Day but was subject to a procedure launched before IP Completion Day.
What effect will this have on future procurements?
Procurements commenced after the IP Completion Date will of course be bound by the relevant procurement regulations as amended by the 2020 Regulations. As previously reported, for future procurements commenced after 31st December 2020, the procurement rules remain largely the same but there are some practical changes to be aware of, most notably, the Contracting Authority or Utility will no longer “send” notices for publication in the OJEU, but rather submit notices to the new UK e-notification service (the “Find a Tender” service). The Cabinet Office’s updated guidance for public sector procurement from 1 January 2021 provides further detail.
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We have extensive experience advising on public procurement under the PCR, UCR and CCR regimes, and would be happy to advise further on how to manage your procurement process in light of the UK leaving the EU.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email firstname.lastname@example.org.